No. 2--05--0819 Filed: 8-3-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF IL LI NOI S, Plaintiff-Appellee,
v. KENNETH

R. SCHNEI

DER, Defend

ant-App ellant. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Wi nn eb ag o C ou nt y.

No. 03--CF--1147 Honorab le Daniel D. Doyle , Judge , Pres idin g.

______________________________________________________________________________ PRESID ING

JUSTICE

GROMETER d

elivere d the opini on of the c ourt: Following a j ur y t rial in the cir cuit cour t of Winneb ago Coun

ty, defenda

nt, Kenne th R. Sc hneider, was conv

icted of two count s of agg

ravate d crimina

l sexual ass ault (720

IL CS 5/1 2-
- 14(a)(1) (West 2002)). The trial court sentenced defendant to consecutive 20-y ear prison terms. On direct appeal, defendant

raises three arguments. First, def endant asserts that the State's motion for automatic substitution of judge was untimely and should not have been allowed. Second, defendant complains that the trial court committed reversible error when it prohibited def ense counsel from cross-examining a poli ce offi cer abo ut whe ther t he offi cer was being i nvestig ated fo r coerc ing a confession

from a suspect in another case. Third, defendant conte nds that comments made by the prosecu tor durin g closin g arg ument deprived him o f a fair trial. We a

ffirm. I. BACKGROUNDNo. 2--05--0819

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Ina docume

nt file stampe d April 24, 2003, defendant was charge d by criminal complaint with two count s of aggravated c riminal sexual assault (720 IL CS 5/12--14(a)(1) (West 2002)). On May 21, 2003, the grand jury issued a two-count indictment against defendant. The indictment charged that, while displaying a

knife, defendant, by

the use of

force, placed h

is penis in the vagina and anus of Sherry

S. On May 27, 2003, pursuant to section 114-- 5(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114--5(c) (West 2002)), the State filed a moti on for substitution of judge, which it later amended. The trial c ourt granted the motion. A jury trial before Judge Daniel Doyle c ommenced on February

22, 2005. The following evidence wasadduced at the trial. Frank Ciprys te stified that at approxima

tely 12:42 a.m. on April

17, 2003, he awoke to the sound of his dog ba

rking. C ip rys proce eded to the front of the house, where he saw a woman sobbing on his porc

h. Cipry s and his wife let th e woman in to their home. According to Cipry s, the woman ap

peared to be in "a state of

shock." She repeatedly

stated that she had been "raped in the ass," that "he" had a knife, an d t ha t s he th ou gh t t ha t " he " w as go in g t o k il l h er . C ip rys called 911. A sheriff 's depu ty a nd paramedics soon arrive d. Cipry s testifie d that the

woman wa s d

ressed an d that he did not notice any c uts or bruises on her. Winn ebago County Sheriff' s Deputy Joseph Boomer responded

to Ciprys's ca

ll. Inside the home, Boomer observed Sherry "cry ing hysterically ." Sherry's face was red, and she was speaking qu ic kl y. S he rr y to ld Bo om er th at sh e h ad be en ra pe d v ag in al ly a nd an al ly. Sherry testified that

in April 20 03, she wa s living on the stre ets of Rockf ord, wor king as a prostitute. At the time, she was pregnant and using cr ack cocaine. On the evening of April 16, 2003, Sherry drove to the area of 8th Street and 16th Avenue where she typically

found her "dates." There ,No. 2--05--0819

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Sherry and an other prostitute went to a shop where Sherry bought some cigarettes, candy , and lemonade. As the two women were walking back to the c ar, Sher ry' s companion found a "date." Sherry continued walking to her car as a blue Bronco pulled up beside her. At trial, Sherry identified the driver of the Bronco as defenda nt. Sherry g ot into the Bronco and asked defen dant his na me . He resp onded tha

t it was " Randy ." Def

endant th en drove

Sherry to a dark , empty

parking lot. After defenda nt parke d the vehi cle, he t old Sherry that he ha

d to urinate. Defendant got out of the vehicle and told Sherry to "take off [her] fu cking pants." She rry stated tha

t she sat there in "shock." The next thing

she reme mbered w as defe

ndant at t he passe nger- side door , with

a knife i n his right hand. Sherry estimated that the bla de of the knife measured five or six inches. Defendant opened the door and instructed Sherry to leave the vehicle. Defendant then told Sherr y to put her hands up and not to scream or say any thing. According to Sherry , defendant was "really

aggressive" and started taking off her clothes. Defe ndant also began

"thumpin g" She rry in the hea d until she told him that she w as six months pregna nt. Defen dant then turned Sherry around, pushed her to the ground, and forced his penis into her mouth. Defendant turned Sherry around a gain and inser ted his penis into her vagina and then into her "be hind." Sherry

told defendant that it hurt, and he told her notto make a sound. D efenda nt then re inserted

his penis in

to Sherry 's vagina before ejac

ulating in her. Subsequently, defenda ntgot up, threw

Sherry 's cloth es at her , and stat

ed, "Yo u fucking whores. I ca n' t s ta nd you fu ck in g w ho re s. " S he rr y di d n ot mo ve un ti l d ef en da nt dr ov e a wa y. After defendant left, Sherry fled, dressing as she ran. At the end of the roa d she saw three houses. No one answered at the first two. However, a couple came to the window of the third house. Sherry told the couple tha t she was six months pregnant, that she had just been raped, and that she n eeded help. Th e couple let Sherry in, and the police arrived soon thereafter. L ater, anNo. 2--05--0819

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ambulance took Sherr

y to the hospit

al, wher e a rape kit was admin istered. On April 22, 2003, a detective showed her a

set of photographs and she selected def endant as the perpetrator of the rape. Sherry admitted that in May

2003, she pleaded guilty to burgla ry and rec eived pr

obation. A

t the time of he r t es ti mo ny, Sh er ry w as in cu st od y for fa iling to appear in court in relation to the burglary charge. Oncross-examination, Sherry te stified that she had been a prostitute for three y ears. She denied using any narc otics or alcohol on the day in question. Howeve r, she was "pretty

sure" that she had done some the day before. Sherry

also admitted that she had been using crack cocaine for four years a nd that, prior

to April 16, 2003, she smoked the substa

nce "e very day all day ." She a

lso state d that she probably used c rack in the day s before she spoke to the police about the case. I n addition, Sherry

admitted t

hat she c ontinued t

o use crack between April 23, 2003, and the date she
was placed i

n custody on the burglary cha rge. Sherry

denied being "under the influenc e" when she gave police a

statemen t rega rding th e incide

nt. Howev er, she s t atedth at th er e w as a " po ss ib il it y" tha t she used drug s the day bef ore. Sherry

stated that she had entered drug re habilitation on four occasions. The longest time she had b ee n sober was for the six months following the birth of her child. Sherry

could not recall how she got into defendant' s vehicle or what she said before she got inside. However, she acknowledge d entering the truck willingly. Sherry re called asking defendant where they were

going and him telling her that he was takin g her to his house. Sherry told def endant that she did not feel comfortable "goin' way fa r out." Howeve

r, defe ndant re lated tha

t he wante d to leave the city limits because of t he police. Acco rding to Sherry , at no time between the time she entered defendant's vehicle and the time defendant drove away was there a discussion about SherryNo. 2--05--0819

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being hired

for sex. Sherry explained that sometimes her c lients discuss sex and sometimes they do not. Susan Oca, an emergency room nurse at R ockford Memorial Hospital, testified that at approxima

tely 2 a.m. on April 17, 2003, she assisted in administering a ra p e k it fo r S he rr y. According

to Oca, Sh erry

was " ve ry distraug

ht and upset." Sherry

told Oca that a man pulled her into a vehicle, took her to a quarry, and sexually assaulted her. A fter administering the rape kit, Oca ga ve it to a D ep ut y Ph il li ps . O ca di d n ot se e a ny c ut s, br ui se s, or la ce ra ti on s o n S he rr y. Rockford police officer Randy

Berke testified that

he and his partner were on patrol in the early hours of April 19, 2003, when they overheard a dispatch

reporting that a suspect

in some recent rape cases w as seen d

riving a red truc k north on 7th Street. A short

time later, Berke observed a re d Ford pickup truck turn

directly in front of

his vehicle. Berke followed the truck. At about 1:35 a.m., Berke observe d the driv er commit a traff ic violati on. Ber

ke activ ated his e

merge ncy lights an d pulled the truck over. Berke approac hed the driver's side of

the truck while his partner went to the pas sen ger side. Berke as ked th e driv er, who m he id entif ied in court as defe ndant , for h is dri ver's license and proof of insurance. Defenda nt told Berke several times that he could search th e truck if he wante d to, so Be

rke aske d defend

ant to step

out of the

vehicle . Berke

ask ed d efendant what he was doing in the area and defe nda nt responded

that he was out buying cigarettes. Berke mentioned

that the address

on the driver's license was 19 blocks awa y, and defe

ndant responded that he liked driving around that area , which Berke describ ed as the

"main a rea" f or prostit ution in Rockford. A short while later, another officer ar rived. After learning that defenda nt had consented to a search of the vehicle, the third officer searched and photog raphed the truck. Among the itemsNo. 2--05--0819

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photographed were two ty pes of knives and a police scanner. Berke acknowledged that

defendant was cooperative during these eve nts and that he was ultimately re leased. Having prevail ed in a pret rial motio n to introd

uce evid ence of other cr imes, pur suant to section115--7.3 of the Cod e (725 I LCS 5/1 15--7.3 (

West 2002) ), the Sta

te presented

testimony from two other prostitute s who cla

imed to ha

ve been sexually assaulte d by

defenda nt. Danielle J. testified that she was working on 7th Street on the evening of November 1, 2002, when a man driving a black Ford Bronc o approached. She asked the man, whom she identified as defenda nt, if he was

a police offic er. Defe ndant re sponded in the neg ative, a

nd Danie lle had hi

m touch her breasts to make sure. After Danie lle entered the vehicle, defendant told her that he was taking her to his

house but that he

would driv e her ba

ck. Afte r talking for a wh ile, Dani elle asked defendant for $20 in exchange for "sexual favors." A t thatpoint, defendant pulled out a knife and putit to her th

roat. Defend

ant then i nstructe d Daniell e to buckl e her se at belt so that they would not be pulled over by the

police. Defendant told Danielle that he would kill her if she made a ny noise. Defendant

drove Danielle down some dirt roads before stopping at a locked gate. Defendant unlocked the gate, drove the vehicle past the g ate, and relocked the gate. H e then drove to a building that resembled a factory . Defendant parked t he vehic le, got o

ut, urinated, and opened the passenger

side door. Defendant then told Danielle to "take [her] fuckin' clothe s o ff" or he would kill her. Danielle complied . She then

exited the v ehicle, and defe ndant told her to pe rform or al sex on him. Defendant

held a knife agains t Dani elle's throat as she abided by

his demand. Danielle then turned around and bent ov er the tr

uck seat . At that po int, defe ndant alt ernate d insertin

g his pen is in Danie lle's vagina and "butt" befor e ejaculating

in her vagina. Defendant then g ave Danielle a baby wipe and told her to clean herself. According to Danielle, defendant acted as if "not hing evenNo. 2--05--0819

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happened." He then

related to Daniel le that he

used to be

a Rockfo rd police office r, and he told her about safer areas in which to work. Danielle begged defendant to take her back to Rockford, and he agreed. Accord

ing to Da

nielle, d efenda nt talked l ike he was from the south. After exiting defend ant's truck, D anielle walked around the vehicle to look at the license plate number. She then called 911 from a pay

phone to report that she had been raped. A short time later, a police officer arrived. Danielle was then transported to SwedishAmerican Hospital, wher e a r a pe kit was administered. Oncross-e

xamination, Danielle

denied having a substance-abuse pr oblem. Danielle stated that she never tried to get out of the truck or roll down the window and scre am. She also stated that she did not attempt to drive away or lock the doors when defendant got out of the truck. Danielle related that on the

way back to Rockford, defendant did not display his knife. However, he did tell Danielle that he would kill her if she told anybody what occurred. Danielle admitted that defenda nt never cut her or touched her skin with the knife. Officer Christopher See of the Rockford police department responded to Danielle's ca ll. See testified that Daniel le was "visib ly shaken." She was breathing heavily and stated that she had been raped. See escorted Danielle to SwedishAmerican Hospital and took possession of the rape kit that was admin

istered i n the eme rgenc y r oom. Kathleen Williams testified that in Nov ember 20 02, she wa s working as a staff nurse in the emergency

room at Swe dishAmer

ic an Hos pital. On t

he even ing of N ovember

1, 2002, Will iams helped administer a

rape kit for

Danielle. During the procedure, D anielle told Williams that she was
a prostitute, that a man had pulled up to her, that she asked the man to "[s]uck on [her] tit," and that she expose d herself. Danielle then got into the car, and the man held a knife to he r throat andNo. 2--05--0819

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threatened

to kill her if she did not cooperate. The man then took her into the country and told her to take off her clothes. When sh e d id no t c om pl y, he aga in threa tened he r. The ma

n then had

oral, vagina l, and anal sex with her. After administering the rape kit, Williams gave it to Officer See. Williams did not notice any cuts, bruises, or lacera tions on Danielle. Stacey C. testified that she worked as a prostitute to support her drug habit. I n May 2000, Stacey pleaded guilty to coca

ine possession, and in September 2004, she was placed on probation after pleading guilty to possession of coca ine with intent to deliver. Stacey stated that she last used drugs in July 2004. Stacey testified that sometime late in March 2003 or early

in April 2003, she was at 6th Street and 15th Aven

ue. I n the ear ly morning ho

urs, def endant pu lled over inhis truck and

Stacey aske d him if he was looking for a "date." Defendan t responded in t he affirmative. Stacey then asked defendant to touch her breasts, and defe ndant complied. Defendant told Stacey that his na

me was Ken, and he drove her to a place nea r Meridian Road. After parking the truck, defe ndant told Stacey t hat he had to u

rinate. Accord

ing to Sta cey , defend

ant then e xited the tr

uck, ca me aroun d to th e passenger side of the vehicle, reached in, hit Stacey in the mouth, grabbed

her, and scarred her fa

ce. As he held a kni fe, def

endant th rew Stac ey

out of the

truck an d told her that if she did not take off her clothes, he would cut her. Stacey took off her pants, and

defenda nt proce eded to penetrate her vagina lly and anally. Af

ter ejaculating in Stacey

's anus, defendant stood

up, threw $20 at her, and told her to get dressed. Stacey asked defendant for a ride bac k, and he agreed, adding that he was sorry and that he had never done that before. Defend ant also to ld Stacey

that the k nife was not real
. During the ride

back, de fendant

again apologized for his behavior and he offere d to buy her
a steak dinner if he ever saw her again. When he dropped Stacey off at 7th Street and 15th Avenue,No. 2--05--0819

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he pointe d at a

house and asked her if she was going there. Stacey

asked him why, and de fendant related th at he was "a ffili ated w ith t he pol ice" an d that the po lice w ere goin g to rai d the b uild ing. Stacey did not report the incident to the police until a couple o f days later be cause she was a homeless drug addict and

did not think that the police would care or believe her. I n May 2003, Stacey identified defendant from a police lineu p as the ma n who atta

cked he r. On cr

ossexamination, Stacey testified that she use d drugs on the day

of her encounter with defendant but that she was s ober at t

he time of

the incid ent. Dennis Aubuchon , a fore nsic biolo gist with

the I llinois Stat

e Police, te sted vag in al swabs taken from Sherry a

nd Danielle. Aubuchon found semen on b oth swabs
. Laur ie Le e, a for

ensic scientist with the I llinois Stat

e Police, perfor

med DNA te sting on s amples fr om She rry, Da

nielle, and defendant. Lee

testified that the semen

found on the swab taken from Sherry contained a

mixture of DNA profiles from at least three donors. Lee concluded that " [defendant], Sherry [S.], and at least
one other individual cannot be excluded from having contributed to this mix profile." Based on a comparison of three loci, 1 out of 37 black, 1 out of 2 white, or 1 out of 2 Hispanic un relate d individua ls could not be excluded. Lee noted that she ordinarily ba ses comparisons on 13 loci, but that she could not do that

with the sa

mple take n from She

rry because of the num

ber of c ontributo rs. Lee also foun d a mixed pr

ofile on Danielle's swab. One DNA profile ma tched the DNA

profile of defendant and would

oc cu r i n a pp ro xi ma te ly 1 in 10 quinti llion blacks, 1 in 1.7 quintillion whites,
or 1 in 540 quadrillion Hispanics. Based on this information, Lee te stified that the semen recovered from the v aginal

swab tak en from D anielle o

rigina ted from d

efenda nt. Rockford police detective Paul Swanberg testified that he and Detective Glen Heidenreich interrogated defendant at ar ound 8:15 p.m. on April 23, 2003. According to Swanberg, de fendantNo. 2--05--0819

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was first given Miranda

warning s, and he

indic ated tha

t he understood them. He then initialed a rightsform and signed it. The detectives then spoke with defendant for about 1 hour and 20 minutes before taking a bathroom break. Swanberg noted that during the interrogation, de fendant spoke with a souther n drawl. Defendant was also given water at his request, and the interrogation resumed at 9:47 p.m. At about 10:51 p.m., defendant agreed to provide a wr itten statement. Swanberg typed the statement on a laptop computer. He then printed thestatemen t and rev iewed it w

ith defe ndant. Swanberg had defe ndant re ad the fi

rst sentence or two out loud to determine if defendant could read and understand

English. Swanberg then read the rest of the statement to defendant. Once Swanberg finished, defenda

nt was g iven a pe

n to make a

ny c hange s to the statement. Defendant chang ed some grammar and spelling on the first page. Defendant then initialed the chan ges and signed

his name and wro te h is add res s on th e se con d pa ge. Im mediatel y after the first statement was taken, the detectives obtained

a second written statement from defendant using the same procedure. Defenda nt
was returned to his jail cell at about 1:20 a.m. At about 9:30 a.m. on April 24, 2003, Swanbe r g spoke with defendant again. At that time, defendant wa s again advised of his rights. S wanbe rg spoke with defendant until about 1 p.m. Oncross-examination, Swanberg testified that the interrogation room measured 6 fee tby 10 feet or 6 feet by

12 feet . Swanber g s ta te d t ha t d ef en da nt ne ve r a sk ed to sp ea k w it h a n a tt or ne y. Swanberg also stated that defendant was not wearing glasses during the interview and that, as far as Swanberg knew, defendant did not need glasses. Swanbe rg added that defendant neve r told him that he was sick

or in pain, defendant never put his head in his hands, and defenda nt never laid his head down on the table.No. 2--05--0819

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The State the

n read de fendant's two sta tements to

the jury. In the first statement, defenda nt admitt ed picking up a woman on 16th Avenue. The woman aske d defendant if he was a cop and thentook defendant's hand and put it on her breasts. She also placed her hand on defendant's crotch. Defendant

then drove the woman to the west side, in his Bronco. The two began to discuss how much defendant would pay to have sex with the woman. They e ventually ag

reed on the amount of $25. Defendant pulled into a parking lot off of Harrison Road and exited the car. He urinated and thenwalked

to the passenger

si de of th e v eh ic le , o pe ne d t he do or , a nd ga ve th e w om an th e m on ey. The woman refused to do any thing unless defendant gave her more money. At that point, defe ndant pulled out a knife with a folding five-inch bla de and told her to take off her clothes. The woman complied and defendant put away

the knife. Defendant proceeded to pe netrate the woman

vagina lly and an al ly. Defendant was not sure if he ejaculated. As defendant pulled up his pants, the woman kicked him in the thigh. He then told the woman he was leaving he r there, and he drove home. Inthe second statement, defendant explained that as a result of certain life events, he wanted to die "the easiest way

out," so he decided to contract AI DS and "fade out." Accordingly, defenda nt had been having unprotected sex with prostitutes for about 18 months. At first, defendant paid the prostitute s. Howeve

r, five or six months pr ior to giving the statement, he bega n to force the prostitutes to have sex with him, be ca use he did not have any money. Defe

ndant would drive the
wo men to a location near where he used to work. When they arrived, he would show a knife. Defendant

never us ed a condom, beca use he wa s hoping

to catch something from

the women. Defendant

related that, with one or two exceptions, he drove the women back to town. One of the women he picked up had her own knife and cu t defen dant's left arm and stoma

ch. Def endant to ld some of the women that his name was "Randy ."No. 2--05--0819

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Defendant

testified on his ownbehalf. Defendant stated that in early 2003 he was living on 8th Street in Rockford with his girlfriend, her son, and her brother. Defendant was unemployed at the time and his emotional condition was "not too good." Defendant had r ecently lea

rned that his divorce had

been finalized and that his ex-wife's daughter was not his biological child. Moreover, defend ant's mother recently passed away, a nd he lost his job after padding his time card. Defendant thought about com

mitting su

icide, bu t did not ha

ve "the guts" t o shoot him se lf. He did not want anyone else to get hurt, so he devised a plan to contract AI DS and "fa

de out." Defend

ant did not

tell anyone e lse of his plan. InOctober or

November of 2002, defendant started picking up prostitutes along 7 th Street, mostly at night. At

the time, defendant had

two vehicles, a red 1993 Ford F-150 pickup truc k and
a black 1999 Ford Bronco. Defe ndant testified that normally he would drive the pickup truck to look for prostitute s. Defend

ant explained that he

would pull

up to a par

ticular woman and she would a sk if he wanted

a "date." I f he responded y es, the woman wou

ld enter the vehic le, and de fendant would drive aw ay. The pickup tr uck had electric door locks, but a person in the truck c ould m anuall y unlock the doo r . The truck's windows were not tinted. Once in the ve hicle, the woman and defendant would discuss the price and the particular sex act desired. Def endant usually took the
womanto a place about five miles from where he picked her up. Defendant would usually give the
womanher money be fore he exited the vehicle. After exiting, he would "relieve himself," go to the passenger side of the truck, tap on the window, open the door, and ask the woman to take down her pants. Defendant would leave thekeys in the ignition. Defendant testified that when he first started going to prostitutes he did use

a condom b ecause

he was not sure he wanted to contract a disea se. However, he later stopped using protection. After having sex, defendant would offer the woman aNo. 2--05--0819

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towelett e to clean herself off and he would drive the woman back to town. Defendant adm itte d owning severa

l knives. H e testifi ed, howe ver, tha t he norma

lly d id not keep k

nives in his vehic les. If he had a knife in the pickup truck, he kept it in a ny lon case under a box of tissues in the console. Defend ant also h ad a sca

nner, wh ich he use d to listen t

o fire a nd police calls. Defendant

admitted picking up Sherry in the vicinity of

8th Street and 16th Avenue, but was
sure it happened on April 16, 2002, not 2003. At the time, defendant was driving his Ford Bronco. Defendant

approac hed Sher ry and she g ot into the vehicle. Sherry aske d defendant if he was looking fo ra "date" and whether he was a police officer. Defenda nt responded that he was not a police officer, and Sherry touc

hed defendant's genital a

rea. Defendant then asked Sherry if she was a police officer. Sherry

responde d in

the negative, and defendant re ached over and touched her breasts or her genita ls. According to defendant, Sherry appeared to be "strung out," "agitated," and "hype d up." Sherry was wearing a coat and de fendant was not aware that she was preg

nant. Sherry

agree d to oral, vaginal, and anal sex in exchange for $25. Af te r a rr iv in g a t h is us ua l s po t, de fe nd an t p ai d S he rr y, and they eng aged in consensual sex. After they completed the tra nsaction, Sherry a sked for more
mo ne y. Defendant told Sherry that he did not have an

y more money . Sherry bec ame upset and started calli ng defen dant n ames. Sherr y then kic ked de fendan t in t he left thigh . Defendant told Sherry that if she was going to act like that, he would leave her there. He then drove away without her. De fendant

denied hi tting She rry , threat ening to kill her, or holding

her at kn ifepoint. Defendant initi ally deni ed kno wing Da niell e. Later, howev er, def endan t admi tted h aving se x with her in exchange for $20 or $25. Defenda ntdenied holding a knife to Danielle or threatening to kill her. Defendant also acknowledged pic king up Stacey. I

n exchange for

$20 or $25, the two had consensual sex. Defendant denied punching Stace y or threa tening her life.No. 2--05--0819

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Defendant

explained that on the evening he spoke with Swanberg a nd Heidenreich, he had a migraine headache. De fendant stated that at the time of the interrogation, he had been suffer ing frommigraines for a

bout 21⁄2 y

ears an d was on me dication

for th em. D efendant twice told the detectives that he had a migraine and would like his medication, but they

ignored him. Defendant also testified that he wears glasses to read but he did not have them with him during the interrogation. W hen the detectives handed defendant the rig hts form, he told them he could not make out the words because he di d not h ave his glasses. Neither detective off ered him a pair of glasse s. Although he could not read the rights form, he sig ned it after Hei denreich poi nted to the area where defenda

nt needed to sign. Defendant stated that he was unable to see the screen of the laptop computer used to take down his statement. Once the statement was reduced to writing, it was presented to defendant. Defendant stated, however , that he was unable to read it and the detectives did not read it to him. Nevertheless, defendant signed the st atement and placed his initials at corrections because he was "under the impre ssion" tha t the stat ement was what he had told the detectives and that certain corrections needed to be and were made. Defendant

admitted t

hat Heide nreich r ead the r ights form to him . He also admitted that he
never asked tosee a doc

tor or a n urse bec ause of h

is condition. Defendant testified that he told the detectives three times that he wa nted a la wyer. Swanbe

rg responded that it was just a discussion between three people and that there was no reason to have a lawye r present. Defendant estimated that he told the detectives between 12 and 15 times that no knife wa s involved in his enc ounters w

ith prostitute s. Defendant stated that on the night he was stoppe d by the pol ice, the y f ound a sma

ll plastic folding knife buried in the console of his pickup truck. He re lated that he carried the knife just in cas e he hi t a deer whil e driv ing.No. 2--05--0819

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Oncross-examination, defendant admitted that Heidenreich told him at the beginning of the interrogation

that defe ndant ha d to understand his rights. Defendant admitted that he told the detectives that he understood his rights and that he agr eed to talk with them. Defendant stated that it was "a possibility" that he

told jail pe

rsonnel only

that he ha

d "dry skin disease" when

they asked whether he had any medical p

roblems. On redir

ect, defenda

nt attribu ted his mig

raine he adache s to thre e lesions on the frontal lobe of his brain, discovered in Februar y 2002. On rec

ross, defendant admitted that he di d not tell th e booking officer that he had lesions on his brain. However, he testified that he to ld the book

ing off icer tha t he had been p rescribed medication for migraine headaches and for ulcers. Defendant also testified that he told Swanbe rg and Heidenreich th at he had brai n lesions. In re buttal, the

State fir st

called Ruth Raxter, a booking office r for the Winnebag o County sheri ff's departm ent. Raxter testified that on April 24, 2003, at about 1:21 a.m., she processed defenda nt. According to Raxter, defendant did not app ear to b e ill at that time. Raxter asked defendant to l ist all medications that he took. Defendant responded that he did not take any medicati ons. Moreover, the only ailment that defendant mentioned having wasa dry skin disorder. Defendant

denied be ing unde

r a doctor's ca

re. On cross-exa

mination, R

axter test ified tha t she coul d not recall whether defendant wore glasses when he was given a document to read. Swanberg was rec alled to te stify

that def endant ne ver ment ioned hav

ing bra in le si ons, suffering from migraines or any

other medical ailments, or having to take any medication. Swanberg also stated that defendant never asked for a n attorney during

the interrogation. Heidenreich

also testified. Heidenreich's testimony regarding the proce dure used to obtain defend ant's statemen

ts was subs tantially

similar to the testimony provided by Swanberg

during theNo. 2--05--0819

-16-

State's case in chief and in rebuttal. Notably , Heidenreich testified that defendant never asked for
anat to rn ey, he never stated that he was taking any medication, he never related that he had lesions
on his brain , he neve

r comp lained of a ny illness or headac he, and he never exhibited signs of any ailment. Heidenreich added that defendant wa s never denied any medi cat ion and that defendant never st ated tha t a knife was not us ed in

the incid ents with the prostitutes. On cross-examination, Heidenreich

admitted t

elling d efenda nt that the police we re chec king with other sta tes and th at if his
name and DNA came up, they

would "get" him. Heidenreich de nied telling defendant that the police
were going to link him to a murder. During Heidenr eich's cross-examination, defense couns el sought to ask hi m whet her he w as und er inv estiga tion for "co achin g" a false confess ion from a

14-y ear-ol d suspect in another case. Following a sidebar , the trial court sustaine d the State 's objec tion to this line of que stio ning. After closing argume nts, the jury

began deliber ations. Ul timately , the jury returne d verdicts of guilty on both counts of ag gravated criminal sexual assault. On May 20, 2005, after hearing evide nce andargument in aggr avation and mitigation, the trial court sentenced defe ndant to two consecutive 20-year

terms of imprisonment. OnJune 3, 2005, defendant filed a motion for a new tr ial an d a motion to reconsider his sentence. At a subsequent hearing , defendant withdrew the motion for a new

trial and the trial court denied the motion to reconsider his sentence. Defendant timely appealed. II. AN ALYS IS A. Su bsti tuti on of J udge Onappeal, defendant first asserts that the trial court e rred in granting the

Stat e's motion for substitution of judge , becau se it was not filed within the 10-day time pe riod specified in section

114-No. 2--05--0819

-17-

-5(c) of the Code (725 IL CS 5/114--5(c) (West 2002)). The State responds that defendant has waived consider ation of th

is issue by

failing to file a w

ritten re sponse to t

he State' s motion or r

aise it in a posttrial motion. Alternatively, the State arg ues that its motion was timely beca use it was filed prior to the ca use bein g placed o n the court's trial call. Thus, the State reasons, its motion was pr em at ur e, no t u nt im el y. We agree that defendant ha s waived consideration of this issue. As detailed morethoroug hly below, when the motion was presented to Judge Steven Vecchio, defense counsel did not object on the basis that the motion was untimely. See People v. Friend , 177 Ill. App. 3d 1002, 1020-21 (1988) (noting that a specific objection results in the waiver of all grounds not specified in the objection). Inaddit ion, defend ant di d not chall enge the ti meli ness o f the S tate's filing in a posttrial motion. See Peoplev. Enoch , 122 I ll. 2d 176, 186 (1988) (holding that in order to properly

preserve an issue for appella te review, a defen

dant must b oth make a

timely objection and raise the issue in his posttrial motion); People v. Williams , 272 Ill. App. 3d 868, 874 (1995) (concluding that defendant wa ived chall enge to trial court order denying his motion for substitution of judge where defendant did not raise issue in his posttrial motion). Notwithstanding defense counsel's failure to object to the timeliness of the Stat e's motion for substitution of judge and her failure to raise the issue in a posttrial motion, defendant asserts that the trial court order granting the State' s motion amounted to either plain er ror reviewable

by t his court under Supreme Court Rule 6 15(a

) (13 4 I ll. 2d

R. 615 (a))

or ine ffec

tive a ssistance

of co unse l. We address defenda nt's pla in-error claim

f irst. Under the plain-error doctrine, a re viewing court may address a forfe ited clai

m where ( 1) the ev

idence i n a case is so closely balanc ed

that the ju

ry 's gui lty verdict may ha

ve resulted from the error and not the evidenc e or (2) the error is so serious that theNo. 2--05--0819

-18-

defendant was deni ed a subst

antial ri ght, and thus a fa

ir trial. People v. Herron , 215 Ill. 2d 167, 178- 79 (2005). Under either circumstance, the burden of persuasion falls upon the defendant. See Peoplev. Nitz , 219 Ill. 2d 400, 410 (2006). Obviously, if the Stat e's mot ion fo r subs titu tion of jud ge
was timely, no error oc curred. Therefore, our initial task is to determine if the State filed its motion within the applicable time frame. Section 11 4--5(c ) of the Co de provid es: "Within 10 days after a

cause ha s been pla

ced on the

trial ca ll of a judg e the Stat

e may move the court in writing for a substitution of tha t jud ge on th e groun d that such j udge is prejudiced against the State. Upon the filing of such a motion the court shall proceed no further in the cause bu

t shall transfe r it to anot

her judg e not name d in the moti on. The Sta te may name only one judge

as prejudiced, pursuant to this subsection." 725 IL CS 5/114--5(c) (West 2002). Under this statut

e, substitu

tion is automatic if the motion is filed within 10 days after the cause has been placed on the trial call of a judge, the motion names o nly

one judg e, the mot

ion is made

in writi ng, the motion alleges that the trial judge is prejudiced against the State, and the motion is made before any substantive

rulings in the case. See People v. McDuffee , 187 Ill. 2d 481, 487-88 (1999). Inthis case, the State's substitution motion wa s in writing, the amended motion named only one judge, it alleged that

the trial judge was prejudiced ag ainst the State, and no substantive rulings had been made in the case when the motion was filed. Therefore, the decision to gra ntthe motion was improper only if the Stat

e failed to file the motion withi

n 10 day s after t he case had been placed on Judge Ve cchio' s trial ca

ll.No. 2--05--0819

-19-

Our re se ar ch ha s n ot lo ca te d a ny c as es di sc us si ng ho w t o c al cu la te th e 1 0- da y t i me period set forth in section 114--5(c). Howeve r, section 114--5( a) of the

Code (725 IL CS 5/114--5 (a) (Wes t 2002)), which all ows a def endant a n automat

ic substitu

tion of ju dge , is similar to the State's right under section 114--5(c). See People ex r el. Bar icevic v. Wharton , 136 Ill. 2d 423, 430 (1990) (pointing out that the

langua ge in se cti on 114--5(c ) of the Code is "virtually identical" to the langua ge in section 114--5(a ) of the Co de). As such, we find cases interpreting section 114--5(a) helpful to our analysis. L ike s ection 114--5 (c), section 114--5(a) requires a party see

king the substitution of a judge to file a motion "[w]ithin 10 day s after a cause *** has be en placed on the trial call of a judge." 725 ILCS 5/ 114 --5 (a) (W est 200 2). In McDuffee , the supreme court addressed when the 10 -day

time period sp ecified

in section

114--5( a) beg ins to run. In the course o f its analy sis, the McDuffee court discussed the practice o f judicia l assign ments, not

ing that in Ill inois the practic e for as signing judges v aries fr

om circu it to cir cuit. McDuffee , 187 Ill. 2d at 489. Becau se our state lacks a statute or court rule requiring that the assignment of judg es be made in a formal, writte n fashion, Illinois court s develop ed a test to calcu late the 1 0-day

period se t forth in section114--5(a). McDuffee , 187 Ill. 2d at 490. Under this test, a motion for subs titu tion of jud ge is timely if it is broug

ht within 10

day s after t

he date t he party filing the motion could be "charge d with knowledge" that the judge a tissue had

been ass igned to

the case. McDuffee , 187 Ill. 2d at 490. This analysis is case spec ific and depends upon the record presente d. People v. Evans , 209 Ill. 2d 194, 216 (2004). Inthis case, we need not rely on the "ch arged with knowledge" test to determine when defend ant's case had been placed on the trial ca ll of a judge, because

Winnebago County' s criminalNo. 2--05--0819

1 General Order 2.01(B)( 1) has since been amended and now provides that "[f]elony cases will be considered to be placed on the trial call of the trial judge a t the defendant's first court appearancewith counsel following presentment." 17th Judicial Cir. Gen. Order 2.01(B )(1) (eff. December

4, 2006). We offer no opinion regarding the outc ome of this case had the amended rule been in effect when the State filed its substitution motion. -20- division has a formal procedure for assig ning judges. We begin by examining the local court rules of the 17th Judi cial Circ

uit, of whi ch Winneba

go County

is part. A local court rule provides that the assign men tof case s shall be "by the chie f judge

as directed by

gener al order or other wise." 1 7th Judicial Cir. Ct. R. 4 (eff. January 1, 1996). General Order 2.01 (17th Judicial Cir. Gen. Order 2.01 (eff. February

2, 200 3)) gov erns t he ass ignmen t of cas es in W inneb ago Cou nty's criminal division. When the State filed

its substitution motion, General Order 2.01(B)(1) provided that "[f]elony cases will be assigned

to a ju dge upon the filing of the indictment or information." 17th Judicial Cir. Gen. Order 2.01(B)(1) (eff. Fe

bruary 2, 2003)
. 1 Moreover, General Order 2.02( B) provided that "[a]ll felony *** case s, when a

n indictme

nt or info rmation is

filed in th e Crimina

l Division o f this court, shallautomatic ally

and in app

ropriate rotation be assigned for trial and all ot her pu rpose s" to a j udge assigned to the cr iminal divi sio n. (Empha si s added.) 17th Judicial Cir. Gen. Order 2.02(B) (eff. February 11, 2002). Thus, when the State filed its substitution motion, a case was considered to be placed on the trial call of a judge in Winnebago County 's criminal division automatically f ollowing the filing o f the indic

tment or in formation. We note, parenth etically , that ne ither party c ites to or discusse s these a

uthoritie s.No. 2--05--0819

-21-

Applying the aforementioned authorities to the case at issue, we conc lude t hat th e Stat e's motion for substitution of judge was timely. The record shows that defendant wa s charged by criminal complaint filed on April 24, 2003, with two counts of aggravated criminal sexual ass ault (720 IL CS 5/12--14(a)(1) (West 2002)). One day later, the partie s appear

ed befor e Judge R. Craig Sahlstrom. At

that time, Judge Sahlstrom inquired whether defendant understood his rights and the charges aga

inst him, appointeda public defender to represent defendant, and continued the matter to May 9, 2003. OnMay 9, the par

ties first appeared before Judge Ve cchio. At that time, the assistantStat e's Attorney stated:

"Your Honor, we're here f

or arraignment on Bill of I

ndictment. It has not

gone to the Grand Jury y et. I don't e ntirely know whos e case

it is. Since

the Court' s soonest s tatus date is the 23rd, I'll ask for tha t." Meanwhile, on May 21, 2003, a two-c ount indictment was filed against defendant. When the parties appeared b efo re Judge

Vecchi o on May

23, 2003, d

efenda nt enter ed a plea of not gu

ilty to both counts. The cour

t then que ried, " I g uess this is

assigned to me or

who?" Both

parties r esponde d in the affirmative. Defense counsel then aske d to file a motion for discovery a nd an answer to the State's motion for

disclosur e. The ma

tter was continue d to May

30 for sta

tus. On May 27, 2003, the

State filed

a motion for substitut

ion of judg e "purs

uant to 725 IL CS 5/114--5(e) [ sic ]." Th e moti on all eged th at the cause h ad been placed on Ju dge Vecc hio's call "on
or about May 21, 2001 [ sic ]," and th at the moti on was " based on the fea r that Judg e Vidal [ sic ] is
so prejudiced

against the People that [the State] cannot receive a fair he aring." The motion soughtNo. 2--05--0819

-22-

"a subst itu tion of judges in this cause." (Emphasis added.) The State presente d its motion to the court on May 30. At that time, def ense counsel noted that the State's motion was "confusing" a nd "insufficient." Defense counsel then told Judge Vecchio that she was not dis puting that the ca

use
was placed on his docket on May 21. However, she questioned at wh ich judge the motion was directed and contended that

the motion cited to anonexisten t subpara graph . The State

offere d to file
anamended

motion to inc lude the proper st atutory provision

and to cla

rify that it wa s its intent

to seek the substitution of Judge Vecchio. Judge Vecchio grante d the State leave to file the amended motion and removed himself from the proceeding s. An amended motion was filed on May 30. The amended motion cited section 114--5(c) of the Code (725 IL CS 5/114--5(c) (West 2002)) and sought the substitution of Judge Vecchio. Becau se the indictment against defendant was not filed until May 21, 2003, tha

t is the ea rliest that the case could have been assigne d to ajudge for trialunder the local court rules in effect whe n theseevents took place. 17th Judicial Cir. Ct. R. 4 (eff. January 1, 1996); 17t h Judici al Cir. Gen. Order 2.01(B)(1) (eff. February 2, 2003); 17t h Judici al Cir. Gen. Order 2.02(B) (eff. February 11, 2002). The latest that the case could be con sidered assi gned to a judge for trial is May 23, 2003, when the parties appeared before the court and agreed that Judge Vec chio had been assigned to the
case. Under e ither sce

nario, th e State' s substi tution motion was timely. The State' s original substitution motion was filed on May 27, 2003, and its amended motionwas filed on May 30, 2003. Both of these motions were therefore filed within 10 day s after the cause could have bee n considered to b e placed on the trial call o f Jud ge Vecch io. Bec ause we have co nclud ed tha t the S tate's substitution motion was

timely under section 114--5(c) of the Code, it necessa rily follows that theNo. 2--05--0819

-23-

trial court's decision to grant the motion did not rise to the level of plain error, as there was no err or at all in granting the motion. See People v. Wood , 341 Ill. App. 3d 599, 612 (2003) ("The re can be
no plain er

ror abse nt reversible err

or"). F or the sa

me reas on, we re

ject def endant' s claim tha

t defens e counsel was inef

fective for fail ing to chall enge the timeliness of the State's substitution motion. See Peoplev. Starnes , No. 2--05--0714, slip op. at 5-6 (June 12, 2007) (pointing out that to succeed on
a claim of ineffective assistance of counsel, a defendan t mus t demo nstra te bot h that couns el's performance was objectively unr easonable and that there is a reasonable probability that, but for counsel's unprofessional errors, the re sult of the proceeding would have been diff erent). B. Cross-examination of Detective Heidenreich Next, defenda

nt asser ts that the trial cou rt erre d when it f

ailed to a llow defe nse coun se l t o cross-examine Heidenreich about whether he was under investigation for coercing a false confession froma 14-yea

r-old suspect

in another case. According to def endant, the decision

to bar him from pursuing this line of questioning stymied his defense , as such evidence could have cast doubt upon police testimony reg arding defendant's use of a knife durin g the assault on Sherry , as well as defend ant's failu re to m entio n havi ng a migraine headache at the time of the interrog ation or needing his glasses to read his statement before sig ning it. The State responds that defendant has waived this issue and that, in any eve

nt, evidence regar

ding an allege d investig ation of H eidenre ich in another case is irrelevant to the voluntariness of defendant' s confession in this case. Ini ti al ly, we note that defe nse coun sel did not

raise thi s issue in a posttrial motion. As such, it has been waived. Enoch , 122 Ill. 2d a t 186. We also agree with the State that evidence that Heidenreich

was being investigated reg arding an allegation that he had coerced a false c onfessionNo. 2--05--0819

-24-

froma minor in another case is irrelevant to whether the c onfessiondefenda nt made in

this case was
vo lu nt ar y. "Whilea defendant has the right to pres ent a defense , a trial c ourt has broad disc retion in ruling on evidence sought to be excl uded as irrel evant." People v. Bohn , 362 I ll. App. 3d 485, 490 (2005). Whether e

vidence is releva nt and adm

issibleis a matter within the sound discretion of the trial court. People v. Turner , 373 Ill . App. 3d 121 , 124 ( 2007) . As su ch, th e tria l cour t's determination

regarding the admissibility of evidence will not be reversed on appeal absent

an abuse of discretion. Green v. Lake Forest Hospital , 335 Ill. App. 3d 134, 139 (2002). "Relevant evidence is evidence having a tendency to make the exist ence of any fact that is of consequence to the determination

of the action more probable th an it would be without the evidence. " People v. Buck , 361 Ill. App. 3d 923, 938 (2005). Nevertheless, where the proffe red evidence is remote, uncertain,
or speculative, the trial court in its discretion may proper

ly reject it. People v. Ursery , 364 Ill. App. 3d 680, 686 (2006). In Peoplev. Hobley , 159 Ill. 2d 272 (1994), our supreme cour t addressed

the admiss ibility of allegations of prior police brutality . In Hobley , the def endant a lleged that he wa s phy sic all y abused and rac ially

harasse d by

a Detective Dwy

er while being interrogated. The de fendant sought to introduc e the tes timony of other s who had f

il ed compla

ints against Dwy

er. The State filed a motion in limine to exclude testimony reg arding prior alleged abuse by

Dwyer. A

t the hearing on the State's motion, the defendant presented t estimony fr om three individua

ls who wer

e alleg edly abus edby Dwy

er. Following the hearing, the trial court granted the State's motion, and the defenda nt raised the issue on appea l before our supre me court
.No. 2--05--0819

-25-

The supr em e court held that the trial court properly excluded the testimony of the three witnesses who alleged prior abuse by Dwyer, be cause it was not relevant. Hobley , 159 Ill. 2d at 312. The court did not conclude that su ch ev id en ce wo ul d a lw ays be inadmissible. However, it identified four factor s to consid

er in ass essing t

he admi ssibil ity of evidence regarding prior alleg ations of police br ut al it y: (1) whether the prior allegations of police brutality wer

e unduly remote in time from the defendant's allegations; (2) whe ther the prior all egations of polic e brutal ity were ag ainst the s ame officer; (3) whether the prior allega tions of po lice bru

tality were sim ilar to the allega tions put forth by the defendant; and (4) whether, in both the prior allegations of abuse and the case before the court, there was evidence of injury consistent

with police brutality. Hobley , 15 9 Ill . 2d at 3 12. In Hobley , the evidence demonstrated that the allega tions of two of

the witnesses were dissimilar to the defend ant's allegations and that the allegations of the third witn ess were

both remote in time (three years prior tothe defendant's allega tions) and devoid of

evidence that the witness sustained injuries consistent with his claim of police brutality. Hobley , 159 Ill. 2d at 312. Inthis case, defendant does not allege that he was physically abused by the police. Rather , he raises a

claim of c oercion . Never theless, we find the analy sis in Hobley instructive. Adapting the elements identified in Hobley to the fa cts of this case, w e must asse ss whether the prior allegation of coerci on was re

mote in time from defendant's allegation, whe ther the prior allegation of coerc ion
was made against the same officer, a nd whether the prior a llegation of coer cion was similar to defendant's allegation. Inthis case , defend

ant present e d evidenc e of a pr ior alleg ation of c oercion made ag ainst Heidenreich. Defendant also suggested tha t the prior allegation was made rece ntly. However, theNo. 2--05--0819

-26-

record is devoid of any cla

im that the t echniques al legedly used to coerce defendant' s confession
were similar to the techniqu es alleged in the prior claim against Heidenreich. The r ecord demonst rates that at tr

ial, def ense cou nsel beg an to ask H eidenre ich whether he wa s "unde r investigation." The State immediate ly o

bjecte d to the question, and the trial court sustained the objection. Outside th e prese nce of th e jurors , defense counsel told the trial court that Heidenreich
was "curr ently under inv esti gatio n regarding a ver y suspicious false conf

ession elicited from a 14 year old minor in

a murder case." Accord

ing to defense counsel, the confession was suspicious "a s to the techniques involved. " Defense counsel stated that there was a "parallel" with what defenda nt went through. The judge responde d that from what he hear d, he was unable to determine whether there was anything

more than

a "suspicion of something" and noted that "there's no proof of any thing before the Court that this officer has been disciplined o r has done any thing." Defense counsel replied that all she wanted to "get out" was tha t Heidenreich was "curre

n tly under investiga

tion." Defens e counsel then had her superior address the court. He stated that the fact that Heidenreic h was under investigation goes to the detectiv e's cr edibility . Ultimate ly, the trial court upheld

its decision to sustain the

State's objectio n, reite

rating that the f

act that t here is a n investig ation in pr

ogress "proves nothing." The court noted that theinvestigation may clear H eidenre ich of an

y mis conduct, and it stated that it did not want to "try a side issue." As the record

above demonstrates, the only similarity between def

endant's case and the prior
caseis the allegation of coercion itself. Accordingly , we are not persuaded that the trial court abused its discretion in disallowing defense counsel to cross -examine Heidenreich regar ding whether he was under investig ation for

coerci ng a confession

from a suspect in another case. The cases defendantNo. 2--05--0819

-27-

cites in support of his position are easily distinguishable. For instance, in People v. Charleston , 132 Ill. App. 3d 769, 776 (1985), i t was held

that the tr

ial cour t proper ly p ermitted

the Stateto crossexamine the defe

ndant' s expert wit

ness regarding a testing error made by the witness in a pr ior, unrelated case. In Peoplev. Banks , 192 Ill. App. 3d 986, 993-94 (1989), the court found e vidence of prior police brutality rele

vant to the defendant's case bec ause the prior acts alleg edly occurr ed only 13 mont hs bef

ore th e defen dant's case, th e same po lice off icers we re involv ed in the prior ca se and inthe defendant's case, and, most important (and unlike the present case), similar techniques of brutality were a lleged in both ca ses. Having fo und th at the trial court's decision to disallow defense counsel to cr oss-examine Heidenreich

regarding whether

he was under investigation for coerc ing a confession from a suspect inanother case was not error, we need notaddress defendant's alterna tive claim that defense counsel was ineffective for failing to ra ise the issue in a posttrial motion. See Starnes , slip op. at 5-6. C. State's Closing Argument Fi na ll y, defendant argues that he wa s deprived of a fair trial because of comments made by the prosecutor during closing arg ument. In particular, def endant complains about the following
re m arks made by Assistant State' s Attorney Glen Weber as he concluded his rebuttal closing argume nt: "Put

all of this evidence together as a whole. The humancondition. Now I

am going to ask you to send this Defe ndant a message: Prostitutes can be raped. Sherr y [S.] was raped inthis case

because all the evidence has proven it. I am going to ask y

ounow to reach deep down and be human and

have some

compassi on for someone who does hav e some dig

nityNo. 2--05--0819

-28-

to protect. This Defend ant tr ied to stri p her o f her l ast ve stige of human dignity. You c an help restore that dignity

with your verdict." Defendant

contends that the State's closing arg ument was improper

because it constituted a direct appeal to the jurors' sy

mpathies. Defendant notes that these comments were the last words the jury heard from eit he r p ar ty b efore retiring to deliberate, a nd he reasons that because he prese nted a tenable claim to th e jury

that his contact wit

h Sherry was consensual, an emotional appeal for
co mp as si on or sym pa th y co ul d w el l h av e c on vi nc ed th e j ur y to re tu rn a v er di ct of gu il ty. The State responds initially that defenda nt has failed to preserve this issue for review as defense counsel did not object to the complained-of remarks at trial and she did not raise the issue ina posttrial motion. Alternatively, the State asser ts thatthe pr osecu tor's isolated remarks were not prejudicial and that, in any case, they

were provoked by def

ense counsel's attempts to disparage the victim dur

ing her closing argume nt. We agree with the State that defenda nt waived this issue by failing to objec t to the remarks at trial and raise the issue in a posttrial motion. Enoch , 122 I ll. 2d at 18 6; People v. Swart , 369 I ll. App. 3d 614, 636

(2006); Wood , 341 Ill. App. 3d at 612. Defend ant conc edes tha

t he proc edurall

y defaulted this issue. However, he once again urges us to consider this issue under the plain-error doctrine. We note that the standard for reversal due to improper c losing ar gument b y th e St ate is much the same as the plain-error standard. People v. Libberton , 346 Ill. App. 3d 912, 922 (2004). Thus, as we have stated on a prior occasion, the failure to raise such an issue before the tr ial court has little effect. Libberton , 346 Ill. App. 3d at 922. Therefore , we will address the issue.No. 2--05--0819

-29-

Indetermining whether

the prosecutor's closing remar ks constituted error, we are guided by the following principles. Generally, prosecutors are afforded a great deal of latitude in closing argume nt. Peopl e v. Sl abaugh , 323 Ill. App. 3d 723, 729 (2001). As such, the State may comment
on the evide

nce and all reas onable

inferences drawn therefr

om. People v. Blue , 189 Ill. 2d 99, 127 (2000). However, argument that serves no purpose but to inflame the jury is improper. Blue , 189 Ill. 2d at 128; Slab uagh , 323 I ll. App. 3d at 729. Mor

eover, i t is imprope

r for the prosecu tion to direct the jury' s attention away f rom the elements of the crime by commenting on issues irrelevant to the question of guilt or innocence. People v. Moore , 356 Ill. App. 3d 11 7, 12 0 (2005). In a determination

of whether a prosecutor's re marks were improper, a closing argument must be viewed inits entire

ty and the allegedly

erroneous remarks must be viewed contextually
. Blue , 189 Ill. 2d at 128. As a general rule, an improper closing argume nt by the State will constitute reversible error only if there is doubt as to whether the jury would have rendered

a guilty ve

rdict absent any

improper comments. Libberton , 346 Ill. App. 3d at 924. Inthis case, the prosecutor's exhortations that the jury have some compassion for the victim and help her restore her dignity were based neither

o n the evidence presented at trial nor on a
reasona ble inference from such evidence. Mo reover, these issues were irreleva nt to whether defendant was guilty or

innocent. As such, we find that the prosecutor's remarks wer e improper as they served only to inflame the passions of the jury. See Peoplev. Spreitzer , 123 Ill. 2d 1, 38 (1988) (noting that the Sta

te was no t free " to invit e the j urors to e nter into s ome sort o f empath etic identificationwith the vi ctims") ; People v. Liner , 356 Ill. App. 3d 284, 297-98 (2005) (concluding that it was improper for the prosecutor to present closing a rgument that

evok ed sympathy

for theNo. 2--05--0819

-30-

victim based on her age and urg ed the jury to convict the defendant to protect other children in the county); Wood , 341 Ill. App. 3d at 614 (holding that it was improper f or the State to remark during closing argument that the jury place itself in the shoes of the victim). The ques tion r

emai ns, howeve

r, wh ethe r this error ros e to the lev el of

reve rsibl e err or. We find that it did n

ot. Defe ndant wa s convict

ed of two counts of aggr avated c riminal se xual assault pursuant to s ection 12 --14(a

)(1) of the Crimina

l Code of 1 961 (720 I

LCS 5/1 2--14(a

)(1) (We st 2002)). T

hat provi sion state s: "(a) The accused commits aggr avated criminal sexual ass ault if he or she commits criminal sexual assault and any of the following aggravating c ircumstances existed during *** the commission of the offense:

(1) the ac cused d isplayed, threa tened to use, or used a dangerous we apon, other than a firearm, or any

object fashioned or utilized in such a manner as to lead the victim unde

r the cir cumstanc es reas onably to believe it to be a da ngerous weapon[.]" 720 IL CS 5/12--14(a)(1) (West 2002). Relevant here, an individual commits the offense of criminal sexual a ssault if h e or she " commits
anact of sexual penetration by

the use of

force or threa

t of forc e." 720

IL CS 5/12--1 3(a)(1 ) (West 2002). Inthis case, defendant admitted to committing an act of sex ual pe ne tr at io n w it h S he rr y. Moreover, the State

presented overwhelming evidence that defendant's conduct was acc ompanied by the use of for

ce or threat of force in that defe ndant displayed, threa

tened to use, or used a

knife inthe commission of the offense. According to Sherry , in April 2003, defendant drove her to a dark,No. 2--05--0819

-31-

empty parking lot and ap p roached the passenger side of the vehicle with a knife in his right hand. Sherry stated that the blade of the knife measured five or six inches. At that point, defendant opened the door, instructed Sherry to leave the vehicle, and told Sherry to puther hands up and not to scream
or say any thing. Defendant

proceeded

to penetrate Sweat orally , vaginally , and anally. Da nielle and Stacey testifi ed to a similar series of events involving defendant, including the use of a knife. Alth ough def

endant q uestions Sherry' s, Danielle's, and Stacey 's versions of events, which he characterizes as "tes timony from thre e prostitu

tes, two of whom were a

dmitted co caine a

ddicts wit h criminal records," the jury was aware of the women's stations in life. I t is the fu nction of the jury to weigh th e w it ne ss es ' t es ti mo ny a nd as se ss th ei r c re di bi li ty. People v. Flowers , 306 Ill. App. 3d 259, 266 (1999 ). In

any event, the women's stories find corroboration in other evidence presented at defe ndant' s trial. In particular, de fendant provided police with two written statements on April 23, 2003, which
were read to the jury . In the first statement, defenda nt admitted picking up a

prostitute in April 2003. According

to defendant, he and the prostitute agree d upon a price for sex. After

he paid the woman, however, she balked, sta ting that she would not "do any thing" unless defendant paid her more
mo ne y. At

that point, defendant

pulled out a knife with a folding five-inch blade and told the woman to take off her clothes. The woman complied, and def endan t p ut aw ay t he knife. Defendant proceeded

to penetrate t

h e woman vaginally

and anally. I

n the second statement, defendant explained that as a result of certain li fe e vents, he

wanted to

die, so he

decided to contra ct AI DS. To accompl ish his go al, defenda nt bega n having unprotec ted sex with

prostitute s. At some p oint, defendant began to force the prostitutes to have se x with him, be cause

he di d n ot ha ve an y mo ne y.No. 2--05--0819

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Defendant

would drive the women to a secluded location and show t

hem a knife. These state

ments corroborate the wo men's stori es. More over, F rank Cipr ys t estified that Sher ry showed up

at his doorstep shortly after midnig ht on April 17, 2003, repeatedly stating that she had been

"raped in the ass" and that the attacker had a knife. This evidence also corroborates that Sher ry 's enc ounter with defendant was not c onsensua

l. While defendant points out that no one noted any c uts on Sherry, the statute under which defendant

was convicted allows for a conviction of aggrava

ted criminal sexual assault if th e a cc us ed "d is pl ay[ s]" or "t h reaten[s] to use" a dangerous weapon. 720 I LCS 5/12-- 14(a)(1) (West 2002) . Give n the s trong c ase for defend ant's guilt, we cannot say that there is doubt
as to whe ther t he jury

would hav e rende

red a g uilty verdict absent th e imprope

r commen

ts. Accordingly , we find no reversible error. Defendant

also argues that

because the prose cutor in th

is case " indulge d in improp er appe als to sympathy " on previous occasions (see People v. Clarke , 245 I ll. App. 3d 99 (1993) ; Slau baugh , 323 Ill. A pp. 3d 723; Libberton , 346 Ill. App. 3d 912) and hasfailed to heed admonishments that he notdo so, we shoul d reverse d efendant's conviction and remand for a new trial. We decline defendant's invitation. Our supr eme cour t has note d that a pa

ttern of i ntentiona l prosec utorial mi sconduc t may

so seriously undermine the inte grity

of judicial proceedings as to support reversa l under the plain-error doctrine. People v. Johnson , 208 I ll. 2d 53, 64 (2003). However, as we pointed out in Libberton , "nowhere in Johnson did the court indicate that prior admonishm ents to the

prosecu tor reg arding

his improper comments in other cases areappropriately considered in deciding

a pattern of intentional miscond uct exists in the trial b eing reviewed." Libberton , 346 Ill. App. 3d at 938 (supplementalNo. 2--05--0819

-33-

opinion on rehearing). Moreover , the isolated improper comments during the State's rebuttal closing argument can hardly

be characterized as a pattern of prosecutorial misconduct like that referenced in Johnson . Defendant asserts that assistant State's Attorney Weber's words were the last the jury heard from either party

before retiring

to deliberate. While that is true, the jurors wereinstructed that neither sympathy

nor prejudice should influence them , tha t the evidence they should consider consistsonly of the testimony of the witnesses and the exhibits the court received, that closing argume nts are not evidence, and that any portion of closing arg

uments not based on the evidence should be disregarded. See People v. Desant iago , 365 Ill. App. 3d 855, 865 (2006) (concluding that trial court' s instruct

ion that c losing a

rgumen t does not c onstitute e

vidence mit i gates any

potential prejudice arising from improper closing arg ument). As such, we cannot say that the im

propriety in the State's argument was of such mag nitude as to deprive defendant of a fair trial. Ne vertheless, we reiterat e tha t we do not

approve of the co mplained-of rema rks and w e aga

in urge trial judg es to vigorou sly

guard agains t such impr

oper ar gument a nd unprof essional conduct. See Libberton , 346 Ill. App. 3d at 927 (Hutchinson, J., dissenting), 939 (supplemental opinion on rehea ring). Fi na ll y, having found

that the comments identified by d efenda nt did not de

prive him o f a fair trial, we reje ct defe

ndant' s alterna

te claim that defe nse coun sel was ineffec tive for f ailing to challenge the remarks. See Starnes , slip op. at 5-6. III. CONCL

USION For the foregoing

reason s, we af

firm t he jud gment o f the ci rcuit court of Wi nneba go Co un ty. Affirmed. O'MALL EY and CALL

UM, JJ., concur.