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THIRD DIVISION
June 30, 2003

PRESIDING JUSTICE SOUTH delivered the opinion of the court:

This appeal arises from defendant's convictions of four counts of predatory criminal sexual assault,attempted first degree murder and aggravated kidnaping for his alleged assault on Girl X after a jury trial. He wassentenced to a total of 120 years' imprisonment: 60-year terms on two counts of predatory criminal sexual assaultwith concurrent 60-year terms for the other two counts, concurrent to a 30-year term for attempted murder.

On the morning of January 9, 1997, as she walked from a friend's apartment on the second floor to hergrandmother's apartment on the sixth floor of the Cabrini Green housing project in Chicago, a little girl who wouldbecome known as "Girl X" was raped, strangled, had gang signs scrawled on her body, roach spray was sprayeddown her throat, and she was left unconscious in a stairwell. At 10:25 a.m., Chicago Housing Authority (CHA)maintenance worker Tarie Miller found Girl X lying facedown with a rag partially around her neck and face on thelanding of the seventh-floor stairwell. Miller went to apartments 709 and 710 to see if anyone could identify thelittle girl. Sharon Thompson and Mary Johnson responded and recognized the girl. They took Girl X to Johnson'sapartment and laid her on the couch. At that time Girl X was unresponsive and foaming at the mouth, and her eyeswere rolled back into her head. Her pants were unfastened, her underclothes were down around her ankles, her T-shirt was tied around her neck, and there was blood on her shirt. Girl X was not wearing any shoes, and there werewhat appeared to be gang signs written on her stomach in blue or black marker. Miller, Thompson and Johnsonimmediately called 911.

Paramedics responded within minutes to the call and were taken to apartment 710 by Miller. When theyarrived there they saw Girl X lying on the couch, breathing erratically and foaming at the mouth. She wasunresponsive, cold and rigid. They also saw red marks on her neck. At that time she was transported to Children'sMemorial Hospital.

When she arrived in the emergency room at 11:17 a.m., Girl X was comatose, barely breathing andunresponsive to pain or other stimuli. Doctors noted linear red marks on her neck and red dots called Patricia,which were indicative of strangulation. When they cut off Girl X's clothing, they saw marks on her abdomen andclotted blood obscuring her hymen. Girl X also had several fresh puncture wounds, abrasions and lacerations onher back consistent with injury from sharp objects. Because Girl X was having trouble breathing and had blood inher mouth, the doctors suctioned out her mouth and intubated her. She showed signs of severe brain injury, and CTscans were ordered for her head and abdomen. Doctors also collected a sexual assault evidence kit. Expertexamination of the contents of the kit revealed no semen on any swabs or the victim's clothes and no debris in thefingernail scrapings. Some hairs and hair fragments were recovered from Girl X's clothing. She was admitted to thepediatric intensive care unit (ICU).

Girl X was examined by Dr. Emalee Flaherty, an expert in child sexual abuse. The examination revealed alot of bleeding in the genital area with a fresh laceration to the power foresheath, lacerations and trauma to the analarea, and a laceration completely through the hymen. Dr. Flaherty concluded that Girl X had been sexually abusedwith dramatic injuries and that there had been both vaginal and anal penetration consistent with having beenpenetrated by a penis.

While in the pediatric ICU, Girl X was hooked up to a nasal gastric drainage tube to empty the contents ofher stomach and to prevent them from going into her lungs. Early on January 10, nurse noticed a strange odorcoming from the discharge tube and immediately notified the doctor. The doctor inspected the tube and smelledgasoline or something similar. The police were notified, and the doctor was asked to collect a specimen of thedischarge in a glass container, which was subsequently turned over to the police.

The police investigation of the crime began immediately, with a canvass of the residents of the building. Detective Vernon Bradley was assigned the odd-numbered floors of the building, and between 12 and 12:30 p.m. hespoke to defendant, who lived in apartment 504 at the time. Defendant said that he had returned home at aboutnoon and had not seen or heard anything unusual. Detective Bradley noted that defendant did not appear agitated ornervous and did nothing to arouse his suspicion.

Detective Bradley was also looking for a pair of boots because Girl X was not wearing her boots when shewas found. One boot was found sitting on top of a brown paper bag in the incinerator room on the first floor of thebuilding. The other one was found later in the room in a Dumpster. The boots were subsequently identified asbelonging to Girl X, and both the boots and the paper bag were removed and inventoried by evidence technicians. The boots were examined sometime in January 1997, and no blood or other stains were found on them.

Illinois State Police latent fingerprint examiner Kimberly Young received and tested the brown paper bagon January 10, 1997. The bag contained a black plastic bag containing an Eli's chocolate cake box, a Frosted Flakescereal box, and a macaroni and cheese dinner box. No suitable print impressions were found on any of the paperitems. One suitable palm print was found on the plastic bag, which was photographed. That print was subsequentlycompared to palm print impressions given by defendant and a James Alexander, but no matches were made. Thereis no automated system available for comparing palm prints.

Also in January of 1997, the paper bag was examined in the Illinois State Police lab for the presence ofbloodstains. There were no bloodstains inside the bag, but numerous red-brown stains were found on the outside ofthe bag, which preliminary testing indicated was blood. A stain on the corner of the bag was determined to behuman blood, while a stain in the center of the bag was not human blood. The corner stain was tested for geneticmarkers, but the test was inconclusive. A sample from the corner stain was preserved even though the quantity ofstain was insufficient for DNA analysis.⁽¹⁾

Girl X's clothes were also examined at the crime lab. Her T-shirt was found to be stained with her ownblood; James Alexander's blood was not a match. Her clothing was also stained with feces.

Evidence technicians photographed the area where Girl X was found and recovered various pieces ofevidence, including markers found in the elevator area and five plastic jugs filled with different liquids which werefound in the upper shaft of the elevator above the top floor. The markers were examined by the crime lab onJanuary 10, but no fingerprints were found.

Jack Mowicki, a chemist at the crime lab, analyzed the stomach contents recovered from Girl X. He foundmedium petroleum distillate-type chemicals and a small amount of heavy distillate. Petroleum distillates are derivedfrom crude oil and divided into light, medium and heavy. A petroleum distillate can be identified, but the specificproduct from which it came cannot be identified. Mowicki also analyzed the contents of the five jugs found in theelevator shaft. Four of the five samples were clearly different in pattern from the stomach contents, while the fifthhad medium distillate in the same range as the stomach contents but not the heavy petroleum distillates.

In another canvass of the building on January 10, Detective John Turney interviewed defendant inapartment 504. Defendant said that he left his apartment at 8:10 a..m. and saw James Alexander in the hallway, whoasked him where "Eddie" lived. Mary Johnson of apartment 710 also saw Alexander around 10 a.m. when heknocked on her door and asked her in what apartment Eddie Adams lived. She advised Alexander to go toapartment 510 but thought it strange because she thought that he knew Eddie. The police noticed that apartment205 was vacant but not boarded up.

Detectives William Calabrese and John Brock of Area 3 were assigned as the lead detectives in the case. After speaking with Alexander, they spoke with defendant on January 9 or 10, at which time they asked him if heknew anything about what had happened. Defendant initially said that he was not around but subsequently statedthat he saw Alexander in the fifth-floor hallway, and that Alexander had asked him if he knew where Eddie was. Defendant also told the detectives that Alexander asked him if he knew anything about a television set, to whichdefendant responded that he did not and left the building.

Altogether, as many as 125 police officers worked on the Girl X case. A list of suspects was compiled thateventually contained 37 names, but defendant was not on that list. There was no "number one" suspect at that timebecause almost every man and some of the women in the building were considered suspects. Possible ganginvolvement was investigated, but no connection was ever established.

Earl McGee of apartment 505 was on the suspect list. He was interviewed by the police in January, andwhen interviewed, he was wrapped in a towel, wearing socks and had knives inside both the socks and towel. Hisapartment also contained pornographic material.

James Alexander, who was also on the suspect list, was known as "raper man" in the building. Hisapartment, number 608, was searched by the police. Blood was found on the back door that was consistent withAlexander's blood type but not with Girl X's. A mop head was also tested but no blood was found. His red shortswere analyzed on January 13, and semen stains were found, but no vaginal secretions were present. Alexander alsogave police a blood sample. Initially, he did not tell the police that the paper bag found under the victim's boot washis, and he was not shown the bag. However, subsequent police general progress reports indicate that Alexanderlater admitted that the bag was his and that he had thrown it away on January 9. Alexander was subsequently takento the police station and interviewed. During the interview, Alexander swallowed a piece of metal and had to betaken to the hospital. He was ruled out as a suspect by March 31, 1997, because the police had no evidence linkinghim to the crime.

Also on the suspect list were Carl Morgan, Toricelli Johnson, and Leon Maddux, who had been a previouspolice suspect in an earlier assault on Girl X's cousin.

In mid-March 1997, another team of detectives assigned to the intelligence section of the organized crimeunit was assigned to assist in the investigation of the Girl X case. That team included John McHugh, Mary Green,Tom Raines, John Eshoo and Fred Wheat. The officers first reviewed the previously generated reports of otherofficers working on the case. They noted inconsistencies in defendant's statements during the initial canvass withrespect to whether he saw Alexander on the day of the crime. At that time, Alexander was a primary suspect, anddefendant was a possible witness against him.

Detective Wheat attempted to find defendant by going to apartment 504 in Girl X's building and speakingto his former girlfriend, Tina Stokes. Ms. Stokes told him that defendant did not live with her any longer, and shegave Wheat an address of 3223 W. Maypole Avenue where defendant might be found. The police also haddefendant's mother's address, and they went there and left a card with her.

On March 31, 1997, officers from the newly assigned team went to the address on Maypole Avenue to lookfor defendant. Elaine Townsel told them that defendant was living with her and would be back early the next day. That night, Townsel told defendant that the police had been by, and defendant told her that he was a witness in theGirl X rape case.

The officers returned early the next morning and saw defendant walking with Townsel and her children. Officer Dotson spoke with defendant for a few minutes before Detective Wheat arrived. Wheat introduced himselfto defendant and told him that there were some inconsistencies in his statements concerning Alexander that neededclearing up. Defendant knew it concerned the Girl X case. Wheat asked defendant to come to Area 3 to speak withhim and told him that he could take a bus, get a ride, or ride with him to the station. Defendant chose to ride withWheat because he did not have money for a bus. Defendant rode to the station in the front passenger seat ofWheat's car. He was never handcuffed, patted down or touched in any fashion.

At Area 3, defendant first sat in the squad room area on the second floor where other officers and civilianswere milling around. He was there for approximately 5 to 10 minutes. At 9:30 a.m., defendant began a 40-minuteconversation with Detectives Wheat and Calabrese in a second-floor interview room. The door was open at alltimes during this conversation. Wheat advised defendant of his Miranda rights and said that he always does thatwith witnesses and suspects alike. Defendant said that he understood those rights and told Calabrese that he was anepileptic, that he was on medication, and that he had taken a pill that morning. Defendant said he got his medicationby using a card, which he gave to Calabrese, who in turn gave it to Detective McHugh so that he could getdefendant's medication. McHugh returned with the medication in the afternoon and gave it to defendant.

During the first interview, defendant said that on the day of the incident he left the building at 7:15 a.m. towalk Tina Stokes to the bus stop. At 7:30 or 7:40 a.m., he returned to the building, where he saw Alexander and asleeping security guard in the lobby. At 7:45 a.m., Alexander came to defendant's door looking for Eddie. Fiveminutes later, defendant left the building to buy food and cigarettes. At approximately 8:15 a.m., he returned to hisapartment and then went to apartment 509 to inquire about a television set that was for sale. He then saw Alexanderon the fifth floor. He left the building again at approximately 10 a.m. to go to the Safer Foundation to sign in, andthen met Stokes downtown for lunch. He spent the rest of the afternoon looking for a job. Defendant returnedhome later that day with Stokes. He was uncertain as to whether he knew the victim, but he may have drawn her apicture at one time.

After the interview, defendant was asked to sign consent forms for giving handwriting and hair samples,which he did. An evidence technician arrived within 30 minutes to take pubic hair samples from him. The doorwas closed and Calabrese remained in the room during the collection process, which lasted approximately 30 to 40minutes. Defendant was readvised of his Miranda rights, and when he pulled his pants down for the collectionprocess, Calabrese noticed that he had shaved his pubic area. When asked why he had done that, defendant statedthat he shaved his groin in February because he sweats.

After the hair collection process, everyone left the interview room. Defendant went to the bathroom, gotsomething to drink and took a cigarette break. No officer was with defendant during this time, and he was allowedto walk freely about the area.

At approximately 1:30 p.m., defendant gave a handwriting sample to Calabrese in the squad room, aprocess that lasted approximately 15 to 20 minutes. After the sample was given, Calabrese ordered lunch fordefendant. During that process, defendant said that he done the test in an earlier case, but Calabrese did not knowwhether he was referring to the hair test or the handwriting test. Defendant talked about his two earlier cases anddenied making statements in those cases.

A second conversation with Calabrese in the interview room commenced at 2:30 p.m. During thisinterview, defendant was shown the sign-in sheets for the Safer Foundation from January 9, which did not show thathe had signed in on that day. Defendant stated that he did not know where he was at 8:30 a.m. on January 9 butremembered having lunch with his girlfriend. He also said that he wrote down his whereabouts on January 9 andput the paper in Townsel's apartment because he knew that the police would be coming around to ask him questions. Defendant spent the next two hours in the interview room, where he was still free to come and go, to use thebathroom and get water, which he did a few times. No questions were asked of him during this period.

At 5 p.m., defendant spoke to Detectives Brock and Calabrese for about 20 minutes after again beingadvised of his Miranda rights. Defendant indicated during this conversation that he was confused about the SaferFoundation records and about coming home with his girlfriend on January 9. He said that he was downtownlooking for a job in the morning of the 9th, and when he came home he saw a television truck outside, which is howhe learned of the crime. The piece of paper at Townsel's apartment had to do with his activities on the 10th. Defendant subsequently agreed to go to 11th and State Street to take a polygraph exam, and Detectives Wheat andMcHugh drove him there at approximately 6:30 p.m.

The polygraph exam was administered by Officer Tovar. Prior to the exam, defendant signed a consentform and a Miranda waiver. Tovar then interviewed defendant about his background. During the exam, Tovarasked defendant about Girl X and determined that defendant was being deceptive. After the exam, Tovar informedthe detectives that he detected deception in defendant's exam.

Defendant was taken back to Area 3 shortly before 10 p.m. At 11:30 p.m., he was again advised of hisMiranda rights and told that deception had been indicated on his polygraph exam. Defendant was not, however,asked if he was involved in the crime.

At 2:30 a.m., Detectives Wheat and McHugh began another 40-minute interview with defendant. Theyfirst discussed sports and defendant's prior cases before talking about the Girl X case. Wheat told defendant that hisalibi had fallen apart because the Safer Foundation records did not match his story. Shortly thereafter, Wheat leftthe room to tell Calabrese that defendant was confessing to the crime.

Detective Wheat went back to the room, and defendant relayed the following during a 40-minuteconversation: On January 9, defendant heard a knock on the door, and when he opened the door, a little girl wasstanding there. She said that she was being followed and that she was scared. Defendant let her into the apartment. Because the girl did not want to go to school, defendant let her stay. They both sat on the couch, and defendantturned on the television. The girl began to touch defendant, and he touched her also. The television was knockedover and defendant asked the girl to leave because he was afraid. The girl said she would tell people what he haddone to her if she was not allowed to stay. Defendant went to the bathroom, and when he returned, the girl hadremoved her shirt. He sat down next to her on the couch, and they began touching each other again. She tookdefendant's hand and placed it between her legs. Defendant told her again that she would have to leave and that hewas afraid that he would get into trouble. He went to the bathroom again, and when he returned this time, the girlhad removed the rest of her clothing. Defendant again tried to make her leave, but she said that she would go to thewindow and scream. They sat on the couch again, and defendant inserted his finger into the girl's vagina and movedit around, at which point she began to move with him. Defendant then put his finger into her rectum for a minute orso. The little girl asked him to take out his penis so that she could touch it. He took out his penis, and the girlsucked on it for about a minute when defendant stopped her and told her that she had to go. The girl began toscream, and defendant put his hand over her mouth to stop her. When she did not stop, he began choking her. Afterawhile, the girl lay lifeless, and he tried to dress her. The girl regained consciousness and began screaming again,so he choked her again until she was rendered unconscious. He finished dressing her and put her over his shoulderand took her from the apartment up a couple of floors and placed her on the landing. He took a marker and drew apitchfork, the letters "G D" and some other letters on her stomach. He also put her shoes on her stomach. Defendant left the girl, went down to an apartment on the second floor and got a can. He then went back upstairs towhere he had left the girl and sprayed fluid from the can into her mouth and discarded the can in the second floorapartment.

At 3:15 a.m., Calabrese joined Wheat and McHugh for an interview of defendant. Defendant was againadvised of his Miranda rights and repeated the statement that he had just given to McHugh and Wheat in which hestated that he was the perpetrator of this crime. This conversation lasted about 45-minutes, after which the officersagain left him in the room with the door open. Defendant motioned for McHugh to come back, at which time hestated that he had lied about a few things in his previous statement. He then said that he grabbed the girl and pushedher into the apartment, that she had "messed" on herself, and that he threw her shoes down the garbage chute. Defendant was asked if he needed anything, and he was given a blanket, some cigarettes and locked in the interviewroom for the first time.

At 8:30 a.m. on April 2, 1997, Detective Brian Killacky introduced himself to defendant and gave himfood, something to drink and cigarettes. At 11:15 a.m., Killacky and Wheat went to the conference room and againadvised defendant of his Miranda rights, which he said he understood. Defendant ate some pizza and thendiscussed the case with the detectives for 20 to 25 minutes.

Defendant said that he was 25 years old and lived in apartment 504 at the time of the crime. On themorning of the offense he walked his girlfriend to the bus stop. He returned to the fifth floor and saw a young girlwalking up the stairs. He grabbed the girl and took her into his apartment and closed the door. He pulled the girl'spants off, inserted his right index finger into her vagina and rectum and became sexually aroused. The girl begancrying at that time. Defendant unzipped his pants and unsuccessfully attempted to put his penis into her vagina. Heinsisted that she open her mouth, and he placed his penis in her mouth for a minute or two. The girl began toscream and cry. Defendant then put his hands around her throat and began to choke her. He smelled and thenobserved feces on the little girl. Defendant walked to the front door and looked out, pulled up the girl's pants andcarried her upstairs. He then took a marker that he had found when he came back from the bus stop and wrote"TWS," "GD" and drew a pitchfork on her stomach. He then went downstairs to an abandoned apartment and got ared and white can of TAC or TAT roach spray and went upstairs and sprayed its contents into her mouth. The girlstarted spitting up. Defendant left her, and on the way back to his apartment, he ran into Alexander. After returningto his apartment, defendant noticed that he had left the girl's boots there, so he took them out but did not rememberwhere he took them. He went back to his apartment, and it was at that time that Alexander knocked on the door. After that, he changed clothes. After this conversation, defendant had cigarettes and a soda, and the detectives leftto notify felony review.

At 12:15 p.m. Wheat and Killacky spoke to defendant again and asked him why he sprayed the stuff intothe girl's mouth. Defendant said that he thought he had leaked or ejaculated into her mouth. The reason he wroteon her stomach was because he had seen that type of writing in the building. He put the can in an abandonedapartment immediately off of the stairwell on the second floor. That information was relayed to other officers whowent to the building to look for the can.

Assistant State's Attorney (ASA) Robert Buckley arrived at Area 3 sometime after noon on April 2, 1997,to assist the detectives with the preparation of search warrants. At 3:30 p.m., defendant was interviewed byDetectives Killacky, Wheat and ASA Buckley in a large conference room. After ASA Buckley advised defendantof his Miranda rights, a 30- to 45-minute conversation took place.

At around the same time, Detectives Alonzo Jackson and Vernon Bradley went to Cabrini Green to lookfor the can of roach spray. They went to apartment 205, which had since been boarded up, and subsequently founda red can with TAT written on it in black letters.

At approximately 6:30 p.m. defendant identified the can of roach spray that he had used to spray down thevictim's throat. Shortly after midnight on April 3, ASA Buckley had a conversation with defendant alone in whichhe asked defendant how he had been treated. Defendant stated that he had been allowed to use the bathroom, tosmoke, drink, eat and sleep. He had also been allowed to take his epilepsy medication and was not under theinfluence of alcohol or any other drugs. ASA Buckley asked defendant if he needed anything else and if he wantedto document his statement. Defendant elected to have a handwritten statement.

At 1 a.m., ASA Buckley wrote out defendant's statement. Defendant signed the rights waiver contained inthe statement and signed the statement on each and every page. This process lasted 40 minutes, during which time apicture was taken of defendant, and defendant identified pictures of the can of roach spray and of Girl X.

In the handwritten statement, defendant stated that he was 25 years old and that his date of birth wasJanuary 23, 1971. On January 9, 1997, defendant lived with his girlfriend, Tina Stokes, in apartment 504 in CabriniGreen. That morning, defendant walked Stokes to the bus stop and then went back to the apartment. He wasstanding on the porch when he saw Girl X walking upstairs wearing a pair of pants and a white shirt. He grabbedher and pulled her into the apartment and locked the door. He took her to the couch in the front room, pulled herpants down and put his right index finger into her vagina and rear end. He got an erection and tried to put his penisinto the girl's vagina for about a minute, but she began crying. Tears were coming from her eyes, and she waswhimpering but stopped. He then put his penis into the girl's mouth. The girl sucked on his penis for about aminute then began screaming. He did not want her to scream, so he put his hand over her mouth, but she keptscreaming, so he put his hands around her neck and began choking her. As defendant choked her, he smelled andsaw her going to the bathroom and feces coming out of her. He choked her for awhile, and then she stoppedscreaming.

Girl X was still breathing, and it appeared as though she was sleeping. Defendant set her down on thefloor in the front room and pulled up her pants. He then walked to the front door and looked out. When he did notsee anyone, he put Girl X over his shoulder and carried her to a place in the stairwell between the sixth and seventhfloors. He then set her down and took a marker that he had found when he came back from the bus stop and wrote"TWS," "GD" and drew a pitchfork on her stomach. He was not a member of a gang and did not know what theletters meant.

Defendant further stated that he went downstairs to an abandoned apartment on the second floor to look forsomething to spray into the girl's mouth because he was afraid that he had left something in her mouth when heremoved his penis. He found a red and white can of TAC or TAT, which he took back to where the girl was lying. He put the tube into her mouth and pushed the button, and the contents smelled like roach spray. Girl X began tospit up like a baby and some of the liquid came out of her mouth. Defendant then left and took the can backdownstairs to the vacant second-floor apartment.

As he was returning to his apartment, he saw Alexander on the landing. Back inside the apartment, henoticed that he had forgotten the girl's boots, so he took them up to the sixth floor and threw them in the Dumpster. He returned to his apartment and changed his clothes. It was then that Alexander knocked on the door looking forEddie. Defendant later threw out the marker near an abandoned CHA building.

At the end of the statement, defendant said he came to the police station voluntarily with Detective Wheatand that he had been treated well by the police and the ASA. He was given a pizza and a hamburger to eat, pop todrink and cigarettes to smoke. He had also been allowed to sleep and to use the bathroom and was given hisepilepsy medication. Defendant also expressed remorse for what he had done.

At 3:30 p.m., ASA Buckley had another conversation alone with defendant. Buckley wanted to get somemore information about where defendant had obtained the roach spray, about the writing on Girl X's stomach, andhow defendant knew her. After this conversation, defendant said he wished to give another written statement,which was again written up by the ASA and signed by defendant and the detectives. This statement was prepared inan administrative office using the same procedures as were used during the taking of the previous handwrittenstatement. Defendant also drew a picture of a pitchfork on one of the pages.

In the second written statement defendant stated that some of his prior statement was not true. He had beenafraid of getting Stokes into trouble, so he said that he had gotten the spray from the second floor when in fact hehad gotten it from a shelf between the bathroom and the bedroom in apartment 504. He stated that in addition tochoking the girl he put her on the floor and put his foot across her throat. He sprayed the spray into her mouth whilethey were still in the apartment. Defendant wrote on Girl X's stomach because he wanted it to look like a gangmember had done it. He knew that GD stood for Gangster Disciple and that the pitchfork is their symbol. Themarker was thick, not like the one he used to draw. He threw the marker towards an abandoned CHA building as hewalked towards Clark and Division Streets.

During the entire time defendant was at Area 3, he never asked to make a phone call, to leave or to seeElaine Townsel. He was given cigarettes, food and pop. Defendant was never verbally or physically abused at anytime, nor was he threatened or promised anything in exchange for his statement. He appeared calm and cooperative,never exhibited any signs of a seizure or complained that he had suffered a seizure. Defendant was alert, talkative,friendly and coherent and did not appear disoriented. He was never handcuffed while he was in the interview room.

On April 3, Mowicki analyzed the contents of the aerosol can of roach spray and recovered mediumpetroleum distillate and a small amount of heavy petroleum distillate. This extraction was consistent with thestomach contents of Girl X and different from the samples of any of the jugs recovered in the elevator shaft.

Hair samples were taken from defendant's head, sideburns and mustache. Evidence technicians anddetectives subsequently gathered debris samples and some bottles from apartment 205. From apartment 504 theyrecovered a futon mattress, pillows, toiletries, shoes, boxer shorts, a rug, debris from a closet, some head hairs fromTina Stokes, fibers from a wig and an envelope. All of these items were tested at the crime lab, but no evidence wasdiscovered linking defendant or anyone else to the crime or linking Girl X to the crime scene.

Defendant was subsequently transferred to Cook County jail, where on April 4 he was examined by anintake nurse. Defendant told the nurse that he was taking Dilantin and another medication, and that he had lasttaken Dilantin the day before. A blood sample from defendant taken later that day indicated a level of Dilantin at.346, with a recommended level being 10 to 20.

After defendant's arrest, the police compared samples of his hair with hairs recovered from Girl X'sclothing. From Girl X's boots, the examiners found six Negroid head hairs, but all were dissimilar to any standardsgiven in this case.⁽²⁾ Two head hair fragments from Girl X's underwear and leggings and a small pubic hair fragmentwere also dissimilar to any of the standards. Four head hair fragments were found in Girl X's pants and socks, oneof which was consistent with Girl X's hair, the others were inconsistent with any of the standards. One head hairconsistent with Girl X's hair was found on her shirt, while nine head hairs were dissimilar to all of the standards.

Tina Stokes testified that defendant had walked her to the bus stop at 7:15 a.m. on January 9, 1997, andwas wearing a T-shirt, jogging pants, sneakers with no socks and a green parka. Defendant did not visit her at workthat day but called her to say that the police had spoken to him about an attack on a little girl.

Girl X was transferred to Schwab Rehabilitation Institute in February 1997, where she began to emergefrom her coma. At Schwab, the staff made a concerted effort to ensure a media blackout and to keep anyinformation concerning her attack from Girl X. The staff did not allow Girl X to be exposed to any radio ortelevision, and there was a restricted visitors list prepared by Girl X's mother. By April 1997, psychologist CarolynReeder was able to get Girl X to use a device to register yes and no answers to questions. Girl X was 100%accurate in reporting personal information; however, she did not know why she was in the hospital or why she couldnot see or talk. Also in April, Girl X received a gift from another girl who had been raped, and Girl X became upsetwhen she heard the word "rape." Reeder asked Girl X if she had been hurt by a man, and Girl X responded that shewas afraid that he would come back and hurt her again.

Throughout April 1997, Girl X continued to be scared of being alone, she had nightmares, was easilystartled and cried a lot. Reeder asked her if it was because of what happened to her, and Girl X responded yes. Reeder told her that the man who hurt her was in jail and could not get out but did not give her any names or details.

Girl X was subsequently discharged from Schwab and went home. One day, Girl X was crying andscreaming, and her mother asked her if she wanted to talk about what happened to her. Reeder had previously toldthe mother that Girl X might begin having memories of the assault. Girl X's mother named all of the men in thebuilding, beginning with the seventh floor and working downwards. When she got to the fifth floor, Girl Xindicated that the man in apartment 504 who liked to draw was the attacker. Her mother contacted Detective Wheatand told him he had the right man after all. Prior to that time, the mother felt that the police had arrested the wrongman.

In September 1998, a school social worker, Carolyn Franklin, called Girl X's mother and told her that GirlX was relating an account of the attack. Her mother told Franklin to ask her if it was the man who lived across formthe incinerator chute who used to draw. Girl X responded that the man grabbed her and forced her into theapartment on the fifth floor across from the incinerator.

Lori Smith, a child abuse specialist working for the Cook County State's Attorney's office, met with Girl Xeight times before trial. Smith did not know any details about the crime when she first met with her. Smithdetermined that Girl X could tell the truth from a lie. On April 20, 1999, Girl X relayed to Smith that a man on thestairs offered her some fruit and that she went with him to apartment 504. He took her to the bedroom, and shebegan crying. The man pulled a knife from his shirt and made her "suck dick." At this point, Girl X stoppedresponding.

By March 2001, Girl X was able to communicate using an eye gaze system. Barbara Robinson, an expertin speech pathology, explained the eye gaze system at trial. The eye gaze system is commonly used for people whocannot see or hear. The system relies on each individual's yes-no response system. For Girl X, her eyes would goway up, indicating yes, and for no, she would shake her head and look down. The alphabet is divided into threeblocks: A-H, I-Q and R-Z. A questioner begins by asking if the letter is in the beginning, middle or end of thealphabet, then within each block, the questioner goes successively through the letters until a yes response isobtained.

Girl X testified at trial using this system. She indicated that on the date in question she walked to hergrandmother's apartment. When she got to the fifth floor, she saw defendant standing on the landing. She had seenhim before sitting on a crate and drawing pictures. The man asked her if she wanted a banana, and she said yes. She then followed him to apartment 504 and into the living room. There was no one else in the apartment. The manclosed the door and stood in front of her. When he pulled out a pocket knife, she tried to leave, but the door waslocked. The man grabbed her by the arm, and she struggled with him. They went into the bedroom, and the mantold her to get on the bed. The man touched her vagina with his hands. She asked him if she could go to school. The man told her to "suck his dick" and put his penis in her mouth before "pee[ing]" in her mouth. He then took hispenis out of her mouth and covered her face with blankets. She could not scream or breathe and did not remembercoming out of that room. Girl X testified that she knew James Alexander who lived on the sixth floor, but he wasnot the man who did those things to her.

John Davis, a resident of apartment 405, testified that on January 9 between 7 and 8 a.m., he was on theway to the store when he saw Girl X on the stairwell near the fifth floor. There was a man on the stairs in front ofher wearing a beige trench coat, but Davis could not see his face. Davis had, however, told Detective Jackson onJanuary 10 that he had not heard or seen anything that day.

Defendant testified that he was 29 years old and that his date of birth was July 23, 1971. He stated that hehas epileptic seizures and takes Dilantin three times a day. He had prior convictions for armed robbery andattempted sexual assault. In January 1997, he was living with Tina Stokes in apartment 504 across from theincinerator chute. He did not know Girl X and never belong to a gang. He used to sit on a crate, and childrenwould watch him draw cartoons.

On the morning of January 9, he walked Stokes to the bus stop and went back to the apartment around 8a.m. and did not leave again that day. Alexander knocked on the door and asked where Eddie stayed. Later thatday, a white police officer asked him if he had heard anything and said that a little girl had just been raped. Defendant did not tell him that he had seen Alexander because "when something happens, it's not too healthy to talkto the police."

By March 31, 1997, defendant was living at 3222 W. Maypole Avenue with Elaine Townsel. On that day,Townsel told him that police had come by looking for him, and he assumed that it was about his being robbed, notabout Girl X. The next day, he was approached by police on the street who said he needed to go to the policestation to identify James Alexander from a lineup. He went voluntarily to the station and was not handcuffed. Hehad not eaten, nor had he taken his medication. He was given food, beverages and cigarettes while at the policestation.

While at Area 3, defendant never slept and never took Dilantin. He told the police about his epilepsy andgave McHugh his medical card. Later McHugh showed him a bottle they claimed was Dilantin, but he never saw it. Defendant said that he was confused about the dates but never admitted having anything to do with Girl X.

Defendant also testified that he never read the statements which he signed, and that he signed the papersafter he had a seizure. He fell on the floor of the holding cell during a seizure and was picked up off the floor bythe detectives, and cold water was splashed in his face. The ASA did not read the statement to him, and while hedid sign the Miranda waiver, someone else signed his name on all of the other pages of the first statement. Defendant testified that he did not sign the second statement at all, nor did he draw a pitchfork on that statement. He admitted that he was okay when he was speaking to the police officers about the crime, but he had a seizurebefore he signed the papers. Defendant also testified that he did not own a beige trench coat in 1997, that he knewwhat TAT was, and that when he arrived at the jail on April 4, 1997, he told the nurse that he had taken hismedication the day before.

The jury convicted defendant on all counts, and he was sentenced to a total of 120 years in prison.

Various pretrial motions were disposed of by the trial court and they will be discussed in further detailbelow as they relate to the issues which defendant has raised.

Defendant has raised a number of issues on appeal: (1) whether he was deprived of his rights under thefifth, sixth and fourteenth amendments of the United States Constitution and article I, sections 2 and 8, of theIllinois Constitution of 1970 when the trial court denied his motion to dismiss based upon the State's destruction ofpotentially exculpatory evidence; (2) whether the court erred in denying his motion to allow a defense expert toconduct a physical and cognitive examination of Girl X; (3) whether the trial court erred in denying his motion tosuppress his two written statements; (4) whether the trial court erred in denying his motion to bar the State fromimpeaching him with evidence of a prior conviction; (5) whether the trial court erred by preventing him fromconducting a cross-examination of certain witnesses; (6) whether the trial court erred in admitting certainphotographs into evidence; and (7) whether defendant was proven guilty beyond a reasonable doubt.

Defendant first contends that the trial court committed reversible error by denying his motion to dismiss theindictment as a discovery sanction because of the State's "reckless" destruction of "critical" evidence. He arguesthat the trial court erred by requiring a showing of bad faith as a prerequisite to granting relief on his due processclaim. Defendant also argues that the trial court abused its discretion by failing to dismiss the indictment as theproper sanction for the State's destruction of evidence. Defendant relies on People v. Newberry, 166 Ill. 2d 310(1995), to support his contention.

The State, which conceded during oral argument that it bore the responsibility of notifying police of thecourt's order to preserve all evidence, nevertheless contends that the destruction of the evidence was not done in badfaith and that defendant was not prejudiced by that conduct because the evidence was not outcome determinative.

The due process clause of the fourteenth amendment makes the good or bad faith of the State irrelevantwhen the State fails to disclose to the defendant material exculpatory evidence. Arizona v. Youngblood, 488 U.S.51, 57, 102 L. Ed. 2d 281, 289, 109 S. Ct. 333, 337 (1988). However, unless a criminal defendant can show badfaith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of dueprocess of law. Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337; People v. Harris, 182 Ill. 2d114, 147 (1998); People v. Newberry, 166 Ill. 2d 310, 315 (1995); People v. Campbell, 252 Ill. App. 3d 624, 630(1993).

In the case at bar, within a few hours of the attack on Girl X, the police collected over 150 pieces ofevidence during their investigation, including the victim's boots, a brown paper bag spattered with reddish-brownstains, and two markers. The boots were examined in January 1997, and no blood or other stains were found onthem. The paper bag was tested for fingerprints and the presence of blood in January 1997, and although the testindicated that human blood was present, there were insufficient DNA markings to identify the source of that blood. A portion of one of the stains from the bag was again tested in August 2000, using a more advanced test, whichagain yielded an inconclusive result. The markers were also tested for fingerprints in January 1997 withinconclusive results.

Defendant was arrested in April 1997, and his initial discovery request was filed on May 16, 1997. OnJune 20, 1997, in response to a defense motion, the trial court entered an order that all evidence collected in the casewas to be maintained. However, all of the aforementioned evidence was destroyed pursuant to police procedure⁽³⁾between January and April 2000.

Defendant subsequently filed two motions to dismiss the case, one on October 16, 2000 (while representedby the Cook County public defender), and one on December 13, 2000 (filed by current counsel). Both motionsrequested the dismissal of the case as a discovery sanction for the State's destruction of evidence in the case.

In denying defendant's motion, the trial court found that the destroyed evidence was not potentially usefulor evidence of the crime itself which would determine the outcome of the case. The court ruled that because thedestruction of the evidence was inadvertent and not done in bad faith, there was no due process violation. The trialcourt did, however, grant defendant's motion to give a jury instruction allowing the jury to draw a negative inferencefrom the State's lack of physical evidence:

"If the People have failed to offer evidence within its power toproduce, you may infer that the evidence would be adverse to the People if youbelieve each of the following elements:

1. The evidence was under the control of the People and could havebeen produced by the exercise of reasonable diligence.

2. The evidence was not equally available to the defendant.

3. A reasonable prudent person under the same or similarcircumstances would have offered the evidence if he believed it to be favorableto him.

4. No reasonable excuse for this failure has been shown."

While defendant characterizes the destroyed evidence as "critical," the record does not support thatcharacterization. The record clearly establishes that every test available to be performed on the evidence was done,and inconclusive results were yielded. Thus, the destroyed evidence neither incriminated nor exonerated defendant,and we are presented with the scenario in Youngblood, where the evidence can at best be described as potentiallyuseful. In such a case, a defendant must demonstrate bad faith on the part of the prosecution, which he has failed todo. The court found that the destruction of the evidence was due to a bureaucratic snafu, and we will not disturbthat finding. It follows then that the trial court did not err in requiring a showing of bad faith before declaring a dueprocess violation.

Defendant makes a related argument that the State's destruction of the evidence was a discovery violationmandating the dismissal of the indictment as a sanction. He argues that the holding in Newberry mandates adismissal because the State violated an existing court order to preserve all evidence in the case. However, theNewberry case is distinguishable.

In Newberry, the defendant was charged with drug possession. Initial testing of the seized substanceyielded a negative result for the presence of drugs, and defendant was charged with unlawfully possessing a look-alike substance with intent to distribute. Newberry, 166 Ill. 2d at 312. A subsequent laboratory test conducted onemonth after the defendant's arrest yielded a contrary result, namely, that the substance was cocaine. Newberry, 166Ill. 2d at 312. Defendant was then charged with various offenses related to the unlawful possession of a controlledsubstance with intent to deliver, and the look-alike drug charge was dropped. Newberry, 166 Ill. 2d at 312. Thedefendant filed a written discovery motion pursuant to Supreme Court Rule 412 (188 Ill. 2d R. 412), which includeda request to examine all tangible objects that had been seized from him. Newberry, 166 Ill. 2d at 312. A year later,the parties learned that the substance had been destroyed by an evidence technician who, when he saw that the look-alike drug charge had been dropped, mistakenly assumed that the case against the defendant was over and that thesubstance was no longer needed. Newberry, 166 Ill. 2d at 313.

In distinguishing Youngblood, the Newberry court noted that in the instant case, the evidence was"essential to and determinative of" the outcome of the case. Newberry, 166 Ill. 2d at 315. The court further notedthat defendant could not be convicted of the drug possession charges without proof of the content of the disputedsubstance and that he had no realistic hope of exonerating himself without the opportunity to have the substanceexamined by his own experts. Newberry, 166 Ill. 2d at 315. Here, as the trial court noted, the destroyed evidencewas not essential to and determinative of the outcome of the case. On the contrary, it was inconclusive and neitherinculpated nor exculpated defendant. The Newberry court held that when evidence is requested by the defense in adiscovery motion, the State is put on notice that the evidence must be preserved, and if it proceeds to destroy theevidence, appropriate sanctions may be imposed even if the destruction was inadvertent, without a showing of badfaith. Newberry, 166 Ill. 2d at 317. The court in Newberry relied on the holding in People v. Koutsakis, 255 Ill.App. 3d 306, 311 (1993), which stated that when there is a request for specific evidence, a defendant does not needto show the exculpatory value of the evidence because the specific request puts the State on notice to preserve theevidence.

Supreme Court Rule 415 provides the trial court with several sanctions for the violation of a discovery rule(134 Ill. 2d R. 415), and once a trial court has determined that a discovery violation has occurred, the court mayimpose any sanction that, in its discretion, it deems just. Koutsakis, 255 Ill. App. 3d at 312. The correct sanction tobe applied for a discovery violation is a decision appropriately left to the discretion of the trial court, and itsjudgment shall be given great weight. Koutsakis, 255 Ill. App. 3d at 312. We note that contrary to defendant'sassertions, Newberry does not imply that the only available sanction for the destruction of evidence was to dismissthe indictment, only that the sanction chosen in that case was properly within the trial court's discretion.

In the case at bar we are unable to say that the trial court abused its discretion by failing to dismiss theindictment. Instead, the trial court chose to grant defendant's request that an instruction be given to the juryadvising it that it may presume that the destroyed evidence would have tended to exculpate him of the crime, and itwas within the court's discretion to fashion that particular sanction for the State's discovery violation.

Although we have essentially found in the State's favor on this issue, we feel compelled to admonish theState that its conduct in failing to notify police of a standing court order to preserve all evidence in this case isunacceptable. The State was clearly aware that the case had not yet gone to trial and in its own words at oralargument "dropped the ball" in preserving the evidence. Such conduct is not looked upon favorably by this court. The State is called upon to reexamine its procedures of cataloging and communicating with the police departmentabout evidence in order to insure that such actions do not recur.

Defendant's next contention of error is that the trial court committed reversible error by

denying his motion to allow a defense expert to conduct a physical and cognitive examination of Girl X. He arguesthat he had no opportunity to determine whether the victim was a competent witness before she testified and that theextent of her injuries prevented the defense from cross-examining her. Defendant essentially argues that he wantedhis own experts to examine Girl X to determine if the eye gaze system was an independent form of communication. He relies on People v. White, 40 Ill. 2d 137 (1968), to support his contentions. In a related issue, defendant arguesthat the trial court erred by allowing the victim to testify, and that the denial of his request to examine the victimviolated his right to present witnesses.

The determination of whether a witness is competent is within the sound discretion of the trial court. People v. Rainge, 211 Ill. App. 3d 432, 446 (1991). In determining whether a witness is competent to testify, a trialcourt is to consider four criteria: (1) ability of the witness to receive correct impressions from his senses; (2) abilityto recollect these impressions; (3) ability to understand questions and express answers; and (4) ability to appreciatethe moral duty to tell the truth. People v. Seel, 68 Ill. App. 3d 996, 1004 (1979). Unless testimony at trialestablishes that the witness did not meet the criteria for competency, that testimony cannot establish that adetermination of competency constituted an abuse of discretion. Seel, 68 Ill. App. 3d at 1005. Where a witness'smental capacity is called into question, the mental abnormality being inquired of must be relevant to attacking thewitness's ability to perceive, record, recollect, or narrate. Rainge, 211 Ill. App. 3d at 446. Otherwise, the questionis not of the competency of the witness but the credit to be attached to his testimony. Rainge, 211 Ill. App. 3d at447.

Here, the record establishes that defendant never requested a competency hearing. There was, however,extensive testimony regarding the method that Girl X used to communicate, an eye gaze system, due to the extensivenature of her injuries. By using that system and an interpreter, the victim was able to testify in court. Defendantdoes not argue that the victim did not meet the tests of legal competency, only that her injuries made it difficult tocross-examine her. However, a witness's inability to speak does not render her incompetent to testify or violate thedefendant's right to cross-examine witnesses so long as she is able to communicate the facts by other methods andotherwise meets the tests of legal competency. People v. Spencer, 119 Ill. App. 3d 971, 979 (1983). Girl X wasable to testify using the eye gaze system, and once the system was explained, the record demonstrates that everyone,including defense counsel, was able to discern the victim's answers based upon the use of that system. Therefore,we find that the trial court did not err in denying defendant's motion to allow a defense expert to conduct a physicaland cognitive examination of the Girl X.

Defendant's reliance on White is misplaced. In that case, the sole witness to a theft was a nursing homepatient who could hear but could not speak. White, 40 Ill. 2d at 138. In reversing the defendant's conviction, whichwas based solely on her testimony, the court noted that there were "grave doubts" as to the witness's competencyand susceptibility to influence, and that the only way she could communicate was to raise her knee if her answerwas yes and remain still if her answer was no. White, 40 Ill. 2d at 139. The court further stated that "[t]he witnesshad no means of originally communicating an accusation. She was unable to state what she saw nor could shedescribe the [article stolen] or the person who took it." White, 40 Ill. 2d at 139. The court ruled that, under thecircumstances, the defendant's right to cross-examine the witness was violated. White, 40 Ill. 2d at 139.

In the instant case, Girl X was the sole eyewitness to the crime committed upon her and was unable tocommunicate verbally, similar to the witness in White. However, unlike the witness in White, Girl X had a greatcapacity for communication in that she was able to utilize a communication system called the eye gaze system,which allowed her to spell out words using the letters of the alphabet. Because she was able to communicate byother means and was otherwise competent, we reject defendant's contention that his constitutional right to confrontwitnesses was violated. Likewise, the denial of defendant's motion to examine the victim did not violate defendant'sright to present witnesses because even where a competency determination is to be made, due process does notrequire an examination of the witness by the challenging party. People v. Williams, 147 Ill. 2d 173, 211-12 (1991).

Defendant next contends that the trial court erred in denying his motion to suppress the

two written statements "allegedly" signed by him during his "56-hour" detention at the police station on the groundsthat the statements were inadmissible and involuntary. He argues that he suffered an epileptic seizure during hisdetention and that his bloodstream indicated "dangerously low" levels of Dilantin. Defendant also argues that thetwo statements are so "inherently inconsistent" that they could not have come from the perpetrator of this crime andnotes that his birth date was incorrectly stated in both statements.

The trial court denied the motion after an extensive hearing, finding that there was no evidence in therecord to show that the statements were involuntary or the result of compulsion or inducement.

In reviewing whether defendant's confession was voluntary, great deference will be given to the trial court'sfactual determinations, and those findings will be reversed only if they are against the manifest weight of theevidence. In re G.O., 191 Ill. 2d 37, 50 (2000). However, the ultimate question of whether the confession isvoluntary is reviewed de novo. In re G.O., 191 Ill. 2d at 50.

For a confession to be admissible at trial, it must be free, voluntary, and not obtained by any direct orimplied promises, however slight, nor by the exertion of any improper influence. In re A.R., 295 Ill. App. 3d 527,532 (1998). The test for the voluntariness of a confession is whether, under the totality of the circumstances, thestatement was made freely, voluntarily, and without compulsion or inducement of any sort, or whether thedefendant's will was overcome at the time he or she confessed. People v. Gilliam, 172 Ill. 2d 484, 500 (1996). Factors to consider when determining voluntariness include: the defendant's age, intelligence, background,experience, mental capacity, education, and physical condition at the time of questioning; the legality and durationof the detention; the duration of the questioning; and any physical or mental abuse by police, including the existenceof threats or promises. Gilliam, 172 Ill. 2d at 500-01. The State has the burden of establishing the voluntariness ofthe defendant's confession by a preponderance of the evidence. Gilliam, 172 Ill. 2d at 501.

Turning to the facts of this case, we conclude that the totality of the circumstances indicates thatdefendant's confession was voluntary. The evidence at the hearing established that, contrary to defendant'sassertions on appeal, he was not in "detention" for 56 hours. On the contrary, he was at the police station for 18