FIFTH DIVISION

										   June 28, 2002 

No. 1-99-4294

THE PEOPLE OF THE STATE OF ILLINOIS,

		Plaintiff-Appellee,

	v.

DEMETRIUS CUNNINGHAM,

		Defendant-Appellant.

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Appeal from the

Circuit Court of

Cook County

Honorable

Lon Schultz,

Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	Following a jury trial, defendant, Demetrius Cunningham, was convicted of

first degree murder, aggravated kidnaping, robbery and aggravated vehicular

hijacking.  Defendant was 15 years old at the time the incident occurred. 

Defendant was sentenced to 80 years for first degree murder, 30 years for

aggravated vehicular hijacking, 15 years for aggravated kidnaping and 7 years for

robbery.  The sentences were ordered to run concurrently.  Defendant now timely

appeals.

	On appeal defendant argues that his convictions should be reversed where:

(1) he was arrested without probable cause; (2) his confession should have been

suppressed; and (3) he was not proven guilty beyond a reasonable doubt; and the

trial court erred: (4) in permitting a witness to identify him in court; (5) in

denying his objection to hearsay; (6) in denying his motion to bar the State's

footprint expert's testimony; (7) in permitting the State's footprint expert to

testify regarding his statistical theory; and (8) in failing to order a mistrial

when a detective deliberately violated a court order.  Finally, defendant claims that the prosecutor's comments during closing arguments and rebuttal deprived him

of a fair trial.  Also, in a supplemental brief, defendant argues that his

extended-term sentence violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

	We will discuss the issues relating to defendant's confession and the

testimony of the State's footprint expert in this opinion.  All other issues will

be discussed in a Rule 23 (166 Ill. 2d R. 23)  order issued contemporaneously

with this opinion.  For the reasons that follow, we affirm defendant's

convictions and sentence. 

I.  STATEMENT OF FACTS

	On November 23, 1994, Elsie Orlinsky, the 80-year-old victim, was abducted in her 1992 Oldsmobile Delta from the Walgreen's parking lot on 55th Street and

Lake Park Avenue in Chicago.  Later that afternoon, her body was found at the

63rd Street beach.  The victim's car was not found at the scene.

A. State's Case In Chief

	Chicago police evidence technician Thomas Reynolds testified that on

November 23, 1994, he processed the crime scene.  Reynolds testified that the

victim's head was bloody.  Near the body, Reynolds observed a walking cane broken

into three pieces, some blood on the bottom of a 55-gallon drum that was near the

victim's head and impressions of shoeprints near the body.  No fingerprints could

be lifted from the drum because the surface was unsuitable.  Reynolds

photographed the scene, the victim and the footprint impressions.

	Richard Rubin testified that on November 23, 1994, he was a detective with

the Chicago police department who drew composite sketches.   Rubin met with a witness, Jose Lopez, who provided him with information from which he generated

a composite of the alleged offender in this case.

	Jose Lopez testified that on November 23 he was making a delivery in the

Hyde Park area.  Lopez said that while stopped at a stop sign at 53rd and Kimbark

Street, he saw a late model Oldsmobile pull into the intersection.  The car,

which was 15 feet away, stopped in front of Lopez for approximately 10 seconds. 

Lopez testified that later that evening, after seeing a story about the murder

on the news, he contacted the police and described the driver of the car.  Lopez

viewed a lineup at Area 2 but told detectives he was unable to identify the man

he saw in the car that day.  When asked which of the men most resembled the man

he saw, Lopez identified a man in the lineup named James Pugh.  On approximately

December 15, 1994, Lopez was shown a photograph array which included a photograph

of the defendant.  Lopez said he was unable to identify the driver of the car

from the photographs.  A few days later Lopez was shown another photograph array

which included a picture of the defendant.  Lopez said that if you put glasses

and a mustache on the defendant, "he looks just like him (the offender), he's got

that same goofy look."

	Donald Sebastian testified that he is the assistant principal of the Mt.

Carmel High School.  Sebastian testified that the beach area of 64th Street and

the lakefront was approximately one mile east of the school.  Sebastian testified

that on November 23, 1994, the school day was shortened from 8:30 a.m. to 12:05

p.m. as it was the day before Thanksgiving.  Mt. Carmel's attendance records

indicated that defendant was present in school that day.

	Gregory Talbert testified that on November 23, 1994, he was walking across

the intersection of 55th Street and Lake Park Street.  He saw a green Oldsmobile

speeding south on Lake Park, come skidding to a stop, and almost hit him.  Talbert said he looked inside the car and saw a white, older lady pressed up

against the glass of the window.  He saw the man on the driver side grab the

lady, put her in a head lock and punch her until she was unconscious. 

Approximately five to seven seconds elapsed until the car pulled away.  Talbert

viewed a lineup in early December of 1994 and positively identified James Pugh

as the driver of the car.  In October of 1998, Talbert was shown a photograph of

the original lineup and again identified Pugh.  At trial, Talbert testified that

he was now only 40% sure that the man he identified in the lineup was the driver

of the car.

	Douglas Heilman testified that he was a special agent with the Federal

Bureau of Investigation (FBI) in Chicago on November 23, 1994, assigned to a

carjacking homicide.  On December 12, 1994, he processed the victim's Oldsmobile

for evidence.  Thirty-three  fingerprints were lifted from the car.  Ten

fingerprints and one palmprint matched the prints of Lamont Borom.  None of the

fingerprints recovered matched those of James Pugh or defendant.  In addition,

a black and yellow screwdriver was recovered from the car.  Heilman testified

that on December 14 he executed a search warrant at defendant's home and

recovered five pairs of tennis shoes and a nylon jacket. 

	Theodius Jackson testified that on November 25, 1994, he was standing on

a street in East Chicago, Indiana, when defendant and  his brother, Jason

Cunningham, pulled up in a new-looking car.  When he asked where they got the

car, defendant responded that he bought it from his uncle in Chicago for $500. 

Jackson saw Indiana plates on the car on that date.  A few days later, Jackson

again saw defendant.  Defendant said he was meeting Lamont Borom because Lamont

was using the car.  Jackson testified that he again asked defendant where he got

the car and defendant said he hit an old white lady and took her car.  Jackson further testified that on the evening of December 1, 1994, he was riding around

in the Oldsmobile with defendant and Lamont.  Jackson said that defendant again

told him that he hit an old white lady and took her car "by the Loop."  When

questioned where "the Loop" was, defendant said it was on the other side of Mt.

Carmel.  Defendant told Jackson he took the lady's purse, $10 and her keys. 

While riding in the car that night, defendant took a screwdriver out of the

armrest and began scraping a handicap sticker off the window.  Jackson stated

that defendant had a light mustache in November of 1994 and looked basically the

same now as he did when the incident occurred.  

	Lamont Borom testified that around Thanksgiving of 1994 he saw defendant

and his brother in a green Oldsmobile.  Borom said that the defendant told him

he got the car from a dope-dealing uncle in Alabama for $500.  Borom testified

that a week later he drove the car with Jackson and defendant riding as

passengers.  When Jackson questioned defendant as to where he got the car,

defendant said he hit an old white lady "in the Loop" and dragged her out of the

car.  Defendant said he took her purse, $10 and keys to her car.  Borom was

driving the car on December 12, 1994, with Jackson when they were pulled over by

a police car and arrested.  Borom testified that defendant allowed him to keep

possession of the car as long as he picked defendant up from school.

	Dr. Edmund Donoghue testified that he is the chief medical examiner for

Cook County.  Donoghue conducted the postmortem examination of the victim, Elsie

Orlinsky.  The examination revealed multiple injuries to the head and face

including a skull fracture and subgaleal hemorrhage.  In addition, the victim's

body had injuries consistent with being defensive injuries. Donoghue concluded

that the injuries observed on the victim were consistent with the victim having

been struck by a cane and a 55-gallon drum and that she died as a result of blunt trauma.

	Assistant State's Attorney (ASA) Peter Faraci testified that on December

12, 1994, he interviewed defendant in the presence of his father.  ASA Faraci

said that defendant told him that in November of that year he had left school and

was walking to the train station when a man pulled up in a vehicle at 63rd Street

and Dorchester Avenue and asked him if he wanted the car.  Defendant said that

he looked in the car to see if there was any blood, and once he determined that

there was nothing wrong with the car he said he would take it.  Defendant told

ASA Faraci that he took the car, replaced the license plates and drove back to

Indiana.  Defendant said that he could identify the man who gave him the car. 

ASA Faraci asked defendant's father to bring him back to the station on December

14.  

	Chicago police detective Michael Baker testified that on December 12, 1994,

he received a call from the East Chicago police department that a car taken in

a Chicago homicide had been recovered.  Baker proceeded to the station in Indiana

and interviewed defendant.  Defendant's parents were present at the station. 

Baker said that defendant told him that he was walking in the vicinity of 61st

Street and Dorchester Avenue at around 4 p.m. on November 23 when a man pulled

up in a car.  Defendant said the man offered the car and he took it, driving it

to Indiana, where he changed the license plates.  Defendant said that he was

watching the news on Thanksgiving Day when he saw a news story about a carjacking

and murder.  A composite sketch of the alleged offender was part of the story. 

Baker showed defendant the composite sketch of the offender and defendant said

it had a strong resemblance to the man who gave him the car.  Baker testified

that at that time he took defendant to the area of 61st Street and Dorchester so

that he could identify where he got the car.  

	Baker then took defendant back to Area 2, where ASA Faraci spoke with

defendant briefly.  Baker then requested that, due to the late hour, defendant's

parents bring him back to the station on December 14 because they had a suspect,

James Pugh, in custody and they wanted defendant to identify him. 

	Baker testified that on December 14 the defendant and his father returned

to Area 2.  Defendant viewed a lineup containing James Pugh but was unable to

identify anyone as the man who gave him the car.  Baker said that defendant was

then brought into an interview room alone.  During the motion to suppress, Baker

testified that defendant's father did not request to have an attorney present,

nor did defendant request an attorney.  Although defendant's father was present

at the station, he was not present in the interview room.  Baker confronted

defendant with the statements obtained from Borom and Jackson.  Defendant said

that he wanted to tell the truth.  At that point, Baker said he advised defendant

of his Miranda rights.  Baker testified that defendant's statement remained consistent with his previous statement but that defendant said he bought the car

from the man for $250.  Baker testified that he told defendant that he did not

believe him.  Defendant then told him that after school he was in the vicinity

of 54th Street and Lake Park Street when he saw an older white woman get forced

into a car by a black male.  He observed a struggle and then the car pulled out

of the lot.  Defendant said he ran after the car and followed it to the beach

house at 64th Street Beach.  He said he saw the black male drag the lady out of the car and beat her with a cane.  The man then took her purse and fled. 

Defendant said he then jumped in the car and took off.

	Baker testified that he told defendant the story was nonsense.  Defendant

then put his head down, sat there for a minute and said "I went off, I killed

her, I took the old white lady's car."  Defendant continued saying that he wanted the car so he brought a disguise (a heavy jacket and ski mask) to school, went

to the Walgreen's parking lot, approached the car and shoved the old white lady

in the car.  Defendant said she was struggling and tapping on the window so he

held her down.  He pulled behind the beach house, pulled her out and "just lost

it," hitting her with a garbage can several times.  He then drove off.  Defendant

told Baker that he had destroyed the disguise, except for the pair of gym shoes

he was wearing which were under his bed at home.  Baker participated in the

execution of the search warrant of defendant's home which recovered a pair of

Nike gym shoes. Despite the confession, defendant was released from Area 2 that

evening.  Defendant was not charged with the homicide until one year later.

	On cross-examination Baker testified that defendant was originally

interviewed as a witness.  However, after he viewed the lineup, defendant was not

free to leave until they had straightened out why he was unable to identify Pugh. 

Baker admitted that defendant was alone in the interview room with him and

another detective, that he knew defendant was only 15 years old and that although

youth officers were present that evening in Area 2, none were present during the

interview.  Baker additionally testified that defendant did not give a written

statement.

	At this point of the trial, the State informed the court that the footprint

expert it was going to have testify, William Bodziak, had not yet arrived.  As

it was early in the day, the defense agreed to proceed with its case and allow

the State's expert to testify the next day.  The jury was informed of this. 

William Bodziak subsequently testified that he is a self-employed forensic

consultant in the area of documents, footwear and tire impression evidence. 

Bodziak testified that from 1970 until 1998 he was a special agent for the FBI. 

Bodziak spent many of those years at the FBI in the laboratory division developing classes of footwear and tire impressions.  Bodziak has been qualified

as a footwear, tire and document examiner since 1976.  He had testified as a

footprint expert more than 100 times. 

	Bodziak testified that defendant's Nike shoes were sent to him for analysis

in 1995.  Bodziak evaluated the photographs of the foot impressions from the

scene by creating a series of test impressions including overlays.  Bodziak

testified that, in regard to the left shoe:

	"I found that the size and the design corresponded.  I found the

general condition corresponded; but I wasn't able to find any of the

accidental random characteristics that would enable a positive

identification.  Based on this examination, I am of the opinion that

this shoe could have made this impression; but there was

insufficient detail and accidental characteristics of an identifying

nature that would have enabled me to go further and say this shoe

positively made it."

Bodziak testified similarly with regard to the right shoe as well. 

B.  Defendant's Case 

	Before Bodziak arrived, Paul Sahs testified that he was a retired police

officer self-employed as a forensic consultant.  Sahs also made test impressions

and compared defendant's shoes with the impressions left in the sand at the scene

of the crime.  When questioned about the left shoe, Sahs testified that "his

opinion was that the known shoe did not make the impression in the sand because

of various differences."  Sahs testified similarly with regard to the right shoe

as well.

	Denise Davis testified that on November 23, 1994, as she approached the intersection at Lake Park Street and 55th Street, she saw an older white female

walk towards a greenish Oldsmobile in the Walgreen's parking lot.  Davis saw a

black male, medium build, wearing a skull cap and thick glasses, with a mustache

and a little fuzzy gray and black beard, approach the woman from behind.  Davis

testified that she was approximately 10 feet from this man and had a good

opportunity to see his face.   The man pushed the lady in the car into the

passenger seat as he got into the car.  The man was hitting the woman and she was

screaming.  The car then pulled out of the lot and headed west on 55th Street.  Davis testified that 10 to 15 seconds had elapsed from the time the man got into

the car until the car drove off.  Davis ran to a police car parked on 53rd Street

and told them what she had witnessed.  

	The next day, Davis went to Area 2 and provided detectives with a

description of the man she saw.  Davis told the police she would be able to

identify the individual who abducted the woman from the parking lot.  On December

1, Davis returned to Area 2 and viewed a lineup.  Davis identified James Pugh as

the man she saw involved in the carjacking.  At trial, Davis testified that

defendant was not the man she saw abduct the victim from the Walgreen's parking

lot.  Davis admitted on cross-examination that she believed she had seen the

abductor on two occasions after the incident.

	Detective Paul Bernatek testified that he arrested James Pugh on December

1, 1994, on unrelated charges.  Bernatek observed bruising on the palms of both

of Pugh's hands when he was arrested.  Photographs of Pugh's hands were taken and

introduced into evidence at trial.  Bernatek testified that Pugh was placed in

three lineups on December 1.  Bernatek stated that both Denise Davis and Gregory

Talbert positively identified Pugh, while Mr. Lopez stated that, of the

participants in the lineup, Pugh most resembled the abductor.  	Dr. Darryl Graden testified that he was a dentist who examined defendant's teeth several

times from 1993 to 1997.  Graden testified that defendant did not have an

overbite or a space between his teeth, as did the person described by witness

Lopez. 

	Dr. Jerry Browning testified that he was a family physician who examined

the defendant in 1994 and 1995.  Browning testified that defendant did not

require the assistance of glasses.  Browning additionally testified that at the

time of trial defendant was heavier and taller than he was in 1994.  

	John Eierman, a police officer, testified that when he interviewed Theodius

Jackson on April 15, 1997, Jackson told him that he was afraid of being charged

with a crime when the Cook County State's Attorney's office interviewed him in

connection with the Orlinsky murder.

	Douglas Cunningham, defendant's father, testified at trial and at the

motion to suppress hearing that when he brought defendant to Area 2 to view the

lineup, he told detectives that he did not mind if defendant was questioned

concerning the lineup, "but anything other than viewing a lineup, I wanted to be

present; and if he needed an attorney, I would want an attorney present." 

Douglas testified that an hour elapsed after his son was taken to view the lineup

and when he was finally brought into the interview room where defendant was

sitting, defendant's eyes were puffy, his face was red and swollen and it looked

like he had been crying.  

	Eliot Cunningham, defendant's uncle and a former Chicago police officer,

testified that he was with Douglas Cunningham at Area 2 while defendant was in

the interview room with the detectives.  Eliot testified that defendant's parents

were denied access to him during this interview.  

	Lonnie Randolph testified that on December 14, 1994, he was a practicing attorney and State Senator.  Randolph received a phone call from another attorney

and he proceeded to Area 2 at approximately 10:30 p.m. on the 14th.   After speaking with Mr. and Mrs. Cunningham, the police made Randolph wait a half hour

to 45 minutes before he was allowed to see the defendant.  Randolph testified

that when he was finally allowed to see defendant, defendant was obviously

distraught, his face was puffy.  Randolph said that defendant looked scared. 

Randolph also testified that defendant did not wear any glasses and did not have

any facial hair.  

	Finally, Robert Louise Cunningham, defendant's mother, testified that in

1994 defendant did not wear glasses, did not have facial hair, did not have an

overbite and did not have a space between his teeth. 

	The jury deliberated for 10 1⁄2 hours and returned verdicts of guilty of

first degree murder, aggravated vehicular highjacking, aggravated kidnaping and

robbery.  Defendant was sentenced to concurrent sentences of 80 years for first

degree murder, 30 years for aggravated vehicular highjacking, 15 years for

aggravated kidnaping and 7 years for robbery.  Defendant now appeals.

II.  ANALYSIS

A.  Defendant's Confession 

	Defendant asserts that the trial court should have suppressed his

confession because it was not voluntary.  The State bears the burden of proving,

by a preponderance of the evidence, that a confession was voluntary.  People v. Gilliam, 172 Ill. 2d 484, 501 (1996).  To determine the voluntariness of a confession, including one from a juvenile, the court looks to the totality of the

circumstances. Gilliam, 172 Ill. 2d at 500.  Factors to consider include individual aspects of the accused (age, intelligence, background, experience, mental capacity, education, physical condition, and experience with the criminal

justice system), and the nature of the interrogation (the legality and duration

of the detention, the duration of the questioning, and any physical and mental

abuse by police).  Gilliam, 172 Ill. 2d at 500-01.  No one factor is dispositive.  Gilliam, 172 Ill. 2d at 500.  "The benchmark of voluntariness is not whether the defendant would have confessed in the absence of interrogation but, rather,

whether the defendant's will was overborne at the time of the confession." 

People v. Plummer, 306 Ill. App. 3d 574, 584 (1999), citing People v. Brown, 169 Ill. 2d 132, 144 (1996).

	Additionally, we have recognized that the taking of a juvenile's confession

is a "sensitive concern."  In re G.O., 191 Ill. 2d 37, 54 (2000).  Because of this, the "greatest care" must be taken to assure that the confession was not

coerced or suggested and that "it was not the product of ignorance of rights or

of adolescent fantasy, fright or despair."  In re G.O., 191 Ill. 2d at 54.  This court also recognizes a "concerned adult" factor in considering whether the

juvenile, either before or during interrogation, had an opportunity to consult

with an adult interested in his welfare.  In re L.L., 295 Ill. App. 3d 594, 600- 01 (1998).  The absence of a parent is one factor to consider but is not, itself, determinative of whether the juvenile's confession should be suppressed.  People v. Pogue, 312 Ill. App. 3d 719 (1999).   Similarly, the absence or presence of a youth officer is not alone determinative of voluntariness, but is a material

factor to consider.  In re Lashun H., 284 Ill. App. 3d 545, 555 (1996).    	The key is whether the absence of an adult interested in defendant's

welfare contributed to the coercive circumstances surrounding the interrogation. 

In re D.C., 244 Ill. App. 3d 55, 61 (1992).  Police conduct that frustrates a parent's attempt to confer with a juvenile is a significant factor in determining voluntariness of a juvenile's confession.  In re Lashun H., 284 Ill. App. 3d at 552.  In reviewing a defendant's confession, we will accord great deference to the trial court's factual findings, and we will reverse those findings only if

they are against the manifest weight of the evidence.  However, we will review de novo the ultimate question of whether the confession was voluntary.  In re G.O., 191 Ill. 2d 37, 50 (2000).

	In G.O., our supreme court noted that G.O., a 13 year old, was arrested in the late hours.  When initially questioned, he denied involvement in the crime. 

He was not questioned again until four hours later.  There was no evidence G.O.

was abused or failed to receive his Miranda warnings.  G.O.'s mother was not told he was under arrest for murder or that he would be asked to waive his rights by

the officers when they called her.  A youth officer was present during the second

questioning.  G.O. was never asked to sign a formal waiver of his rights, his statements were never reduced to writing, and the statements were never given to

him to review or sign.

	On appeal, the appellate court reversed the trial court's denial of the

defendant's motion to suppress statements.  In re G.O., 304 Ill. App. 3d 719 (1999).  Our supreme court reversed the appellate court, holding:

	"We agree with the State that a juvenile's confession should not be

suppressed simply because he was denied the opportunity to confer

with a parent or other concerned adult before or during the

interrogation.  Nevertheless, we believe that this is a factor that

may be relevant in determining whether a juvenile's confession was

voluntary.  This is particularly true in situations in which the

juvenile has demonstrated trouble understanding the interrogation

process, he asks to speak with his parents or another 'concerned adult,' or the police prevent the juvenile's parents from speaking

with him."  In re G.O., 191 Ill. 2d at 55.

Under the facts of that case, the supreme court held the confession was

voluntary.  G.O. never asked to speak with a parent, the police never frustrated

the mother's attempt to confer with him, G.O.'s detention was valid, G.O. was

intelligent and did well in school, and G.O. conceded there had been no physical

coercion.

	Similarly, in another recent supreme court case, People v. Morgan, 197 Ill. 2d 404 (2001), a 14 year old's confession was held to be voluntary although he

did not confer with an interested adult prior to or during his interrogation. 

In that case the defendant confessed at the crime scene to killing his

grandparents.  He repeated the confession at the police station.  The court noted

that the defendant was an average student, the defendant was not abused or

threatened during the interview, the defendant was given his Miranda rights, and the defendant wanted to tell what happened when he approached the officer at the

scene.  Further, when he was being interviewed, defendant was not handcuffed and

the questioning only lasted 30 minutes each time.  The court also noted that

although defendant's parents were not contacted, that did not render his

confession involuntary.  Defendant told the interviewing officers that his legal

guardians were his grandparents, and they were now deceased.  The police did not

obtain information regarding defendant's mother until they interviewed the

defendant.  Also, defendant never requested to speak with a concerned adult. 

	In a motion to cite additional authority, defendant cites People v. McDaniel, 326 Ill. App. 3d 771, (2001), where this court found that a 14 year old's confession was involuntary.  In that case, defendant was arrested at 2 a.m.

in his mother's home.  Defendant was held in an interview room for five 5 hours and told he could not give a statement until the assistant State's Attorney

arrived.  Defendant's mother arrived at the police station at 2:30 a.m. and was

denied access to her son until 8 a.m., after defendant confessed.  This court

held that the evidence demonstrated that the police frustrated defendant's

mother's attempt to confer with him where a police officer's testimony

corroborated that defendant's mother made numerous requests to see defendant and

was denied.  McDaniel, 326 Ill. App. 3d at 784-85.

	Even more recently, this court in People v. Griffin, 327 Ill. App. 3d 538 (2002), held that a 15 year old's confession was involuntary where the police

frustrated the parents' attempts to see him, he was denied the presence of a

"concerned adult," and the circumstances of the detention were coercive. 

Defendant was arrested and brought to the police station at 11 p.m, detained for

over 18 hours, was questioned for 30 minutes at 3 a.m., and did not make a

statement until 5 p.m. the following day.  Defendant's parents stayed at the

station all night, which  indicated an interest in their son.  The police refused

them access to their son.  While the trial court did not believe that the parents

repeatedly asked a woman at the front desk to see their son, it specifically

found that the evidence that the police refused to allow defendant's parents to

see their son was "unequivocal and uncontroverted."  Griffin, 327 Ill. App. 3d at 546.   

	In applying these cases to the facts at hand, we find that defendant's

confession was voluntary.  First, defendant contends that his statements were

involuntary where there was no concerned adult present during the confession. 

Specifically, he argues that his father was denied access to him and that no

youth officer was present during the interview.  Defendant argues that he

testified that when he was brought into the interview room he asked to speak with his father and the detectives refused.  Defendant also argues that his father

testified that he told the detectives that he did not want his son questioned

without an attorney or himself present.  In its ruling denying defendant's motion

to suppress, the trial court extensively reviewed the testimony at the motion to

suppress and made extremely detailed findings of fact which take up 38 pages of

the record.  While G.O. had not been decided at the time the trial court ruled on this case, the trial court certainly complied with G.O.'s caution that, for the "great deference" "standard of review to function as it is intended, trial

courts must exercise their responsibility to make factual findings when ruling

on  motions to suppress."  G.O., 191 Ill. 2d at 50.  

	The trial court specifically found the defendant's testimony that an

attorney or parent's presence was requested prior to the inculpatory statement

was "not believable."  The trial court found that the police did not prevent

defendant's father from speaking to him.  The court also found there was not any

"credible evidence in the record that Demetrius or any of his family members ever

asked for or invoked Demetrius' right to counsel prior to making his statement." 

As the trial court noted, the record revealed that defendant was brought into the

station two days before he made the incriminating statement as a witness. 

Defendant's parents were on notice of defendant's information and connection to

this crime on December 12.  Defendant was at home for the next two days during which his parents could seek an attorney's advice or counsel defendant regarding

his involvement. 

	We acknowledge that defendant's father was present at Area 2 but not asked

to be present during the interview.  However, we are mindful of the other facts

in this case as well.  On December 12, the police were told by Borom and Jackson that they had gotten the car from defendant, who told them he had killed an old white lady when he took it.  On that same day, defendant admitted to the police

that he had indeed loaned the car to Borom and that he knew that it had been

taken in a carjacking during which the owner was murdered.  Defendant voluntarily

came to the station with his father on December 14 to view the lineup.  He came to the station at approximately 6 p.m. and was brought into the interview room

by 6:30 p.m.  Defendant was brought into the interview room directly following

the lineup in order for the police to determine why he was unable to make an

identification. Defendant's interview lasted under 30 minutes, with the actual

statement lasting less than 10 minutes.  The trial court found that defendant

repeated his confession in the presence of his father.  These facts are directly

opposite of the extreme facts present in Griffin and McDaniel and, therefore, those cases are easily distinguishable.  The trial court found in the case at bar

that the father's absence did not in any way contribute to or create a coercive

atmosphere.  It is exactly the function of the trial court to determine the

credibility and the weight and inferences to be drawn from the evidence.  People v. Golden, 323 Ill. App. 3d 892, 901 (2001).

	Defendant asserts that his father had requested to see defendant for over

two hours following the interview and that his uncle was denied access to

defendant.  Defendant also points out that an attorney was contacted and he was

not allowed to see defendant until 30 or 45 minutes after he arrived, at around

11 p.m.  Defendant argues that this evidence establishes that the police

frustrated his right to have a "concerned adult" present during the interview. 

We disagree.  As the trial court noted, this evidence concerns police conduct

after the incriminating statements were made and "shed little light on the issue of voluntariness."  It is important to note that the trial court precluded the

State from eliciting any of the statements defendant made after he saw his father.  

	As for the presence of a youth officer, it is uncontested that youth

officers were present in the police station but were not present during the

interview.  Again, we are mindful that although this absence is a significant

factor in the totality of the circumstances analysis, there is no requirement

that a youth officer be present when a minor is questioned.  People v. Griffin, 327 Ill. App. 3d 538 (2002).  In light of the other factors discussed, especially

the evidence that defendant had an opportunity to confer with his father up to

30 minutes before the interview began, the interview lasted only 30 minutes and

defendant confessed only 20 minutes after his status changed from witness to

potential suspect, we do not feel that the absence of a youth officer created an

atmosphere so  coercive as to render defendant's confession involuntary.  

	In addition, we note that our supreme court has found the "concerned adult"

factor particularly relevant in the following situations: "the juvenile has

demonstrated trouble understanding the interrogation process, he asks to speak

with his parents or another 'concerned adult;' or the police prevent the

juvenile's parents from speaking with him."  In re G.O., 191 Ill. 2d at 55. Here, the evidence established defendant was attending a private high school and there

was no evidence of "apparent learning or emotional disabilities."  The trial

court found that defendant did not ask to speak with a parent or "concerned

adult" and that the police did not prevent defendant's parents from speaking to

him.  In making its findings, the trial court said that it he was applying the

holding in In re J.J.C., 294 Ill. App. 3d 227 (1998), a case discussed by G.O., 191 Ill. 2d at 55.

	The evidence also supports the trial court's finding that defendant was

advised of his Miranda rights and understood them.  Defendant was advised of his Miranda rights immediately prior to his incriminating statement and once again during the interview.  The trial court found that "there is no credible evidence

in the record that due to his age, education, physical, mental, emotional or

psychological condition that he was not able to understand or knowingly waive his

constitutional rights."

	The trial court also specifically found defendant's testimony regarding

verbal and physical abuse from the police to be not credible.  Again, we defer

to the trial court's determination of witness credibility.  People v. Kolakowski, 319 Ill. App. 3d 200, 213 (2001).

	Weighing against admission is defendant's age and his lack of any

significant prior history with the justice system.  However, considering the

totality of the circumstances, we find defendant's confession was given

voluntarily and free from coercion. We therefore hold that the trial court

properly denied defendant's motion to suppress his confession.

B. EXPERT TESTIMONY

1.  Discovery violation

	Defendant next argues that the trial court erred in denying the defendant's

motion to bar all or a portion of the testimony of the State's footprint expert,

Bodziak.  Bodziak utilized the test impressions and overlays he made of the

defendant's Nike shoes in formulating his opinion and in explaining his opinion

during his trial testimony.  Defendant contends that the State never informed him

of the existence of the impressions and overlays and that they were not given to

the defense until an hour before Bodziak testified.  Therefore, defendant

maintains that he was prejudiced where he called his footprint expert out of

order, before Bodziak, unaware of the overlays.

	In a criminal case, the provisions of Supreme Court Rule 412 require the

State, upon a defendant's request, to disclose material and information within

its possession or control, subject to certain qualifications, including, among

other things, the names of the witnesses it intends to call at trial and any

reports or statements of experts made in connection with the particular case,

including the results of physical or mental examinations and of scientific tests

and experiments or comparisons and a statement of the qualifications of the

expert. 134 Ill.2d Rs. 412(a), (c).  Rule 412 was substantively amended,

effective March 1, 2201, but the amendments are not pertinent to this case.  At

the time of trial, Rule 412 further provided: 

	"(f) The State should ensure that a flow of information is

maintained between the various investigative personnel and its

office sufficient to place within its possession or control all

material and information relevant to the accused and the offense

charged. 

	(g) Upon defense counsel's request and designation of material or

information which would be discoverable if in the possession or

control of the State, and which is in the possession or control of

other governmental personnel, the State shall use diligent

good-faith efforts to cause such material to be made available to

defense counsel." 134 Ill.2d Rs. 412(f), (g).

The State has a duty to use due diligence to ensure that it becomes aware of

discoverable matters and must see that there is a proper flow of information

between all the branches and personnel of its law enforcement agencies and legal

officers. People v. Leon, 306 Ill. App. 3d 707, 712 (1999).  The purpose of the discovery rule is to afford the accused protection against surprise, unfairness,

and inadequate preparation and to afford the defendant an opportunity to

investigate the circumstances from which the evidence arose. People v. Robinson, 157 Ill.2d 68, 79 (1993).  Compliance with the discovery provisions is mandatory

and will be excused only where the prosecutor was unaware of the existence of the statement or discoverable evidence and could not have become aware of it in the

exercise of due diligence. Leon, 306 Ill. App. 3d at 713.

	We hold the State did not violate Supreme Court Rule 412 in failing to

provide the defense with Bodziak's overlays.  First and foremost, defendant's

discovery request did not ask for the impressions and overlays.  The request

sought only "any reports or statements of experts...made in connection with this

particular cause including the results of physical or mental examinations, any

specific tests, experiments or examinations."  Defendant received Bodziak's

report which contained his conclusions approximately four years before trial

commenced.  The defense had ample opportunity to contact Bodziak during that time

frame to discover his methodology and to request any overlays.  In addition, the

defense never requested a continuance when they became aware of the overlays in

order to review them or discuss them with Bodziak or their own expert.  

	Even if we were to assume arguendo that the State violated the discovery

rules, defendant's argument would still fail.  In cases where the State has

violated discovery provisions, the real issue a reviewing court must address is

whether the discovery violation unfairly prejudiced the defendant and whether the

trial court failed to eliminate the prejudice.  People v. Weaver, 92 Ill.2d 545, 559 (1987).  In this case, the defense suffered no prejudice.  First, the jury

was presented with Bodziak's conclusion that it was possible defendant's Nike

shoe could have made the print, however, there was insufficient detail to

determine with certainty that his shoe made the print.  Defendant was able to

cross-examine Bodziak on how he arrived at this conclusion.  During cross-

examination, defense counsel asked several questions regarding a book authored

by Bodziak on shoeprint evidence.  Defendant also presented direct testimony

which rebutted Bodziak's testimony.  Defendant's expert testified that defendant's Nike shoe could not have made the print.  Defendant's expert had also

utilized similar overlays and had received Bodziak's report long before trial.

In addition, defendant was provided with the overlays before Bodziak's testimony

began.  While this did occur after his own expert had already testified,

defendant did not seek to recall his witness, nor did he request a continuance

at any point.  The trial court did not abuse its discretion by refusing to strike

Bodziak's testimony where the defendant suffered no prejudice from the discovery

violation.  See People v. Pursley, 284 Ill. App. 3d 597, 605 (1996).

2.  Statistical theory

	Defendant next claims that the trial court erred in allowing Bodziak to

testify regarding a statistical theory.  At issue is the following testimony on

direct examination:

	"Q: (Would you tell us how) the particular shoe size

	would be diluted over the purchase in relation to the

	purchase of other shoes.

	A: The size or design?

	Q: The size, design, and general condition.

	A: All right.  There is, according to the Footwear Industry of 

	America, there is approximately one and-a-half billion shoes 

	that are sold; whether they are imported sold or made in 

	America sold, but they are sold in the United States every 

	year. One and-a-half billion is an extremely large number.

	In any particular design there may be a couple of hundred 

	thousands, for instance, of this shoe made each year; but in 

	a particular size, such as this is a size 12, there may be 

	only ten percent of that, so twenty thousand shoes.  When you 

	divide the one and-a-half bill [sic] into twenty thousand, you 

	are talking about a very infrequent occurrence.

	Q: One out of twenty thousand comes out to about- well, 

	the math, one out of every three hundred thousand?

	A: I believe so.

	Q: Does that sound about right?

	A: Just as an- for example, yes."

The defense did not object to this testimony on direct examination.  On cross-

examination, defense counsel asked:

	"Q: All right. Now when all is said and done with

	everything that you have testified here today, you cannot say 

	that the shoes, 54-A and B created the unknown footprint in 

	the sand, could you?

	A: That was my testimony; that is right.

	Q: You can't do it.  It could have been made by another 

	shoe?

	A: It could have been made, yes.

	Q: And while Mr. Sahs in his opinion said it was- they

	did not make the impression, all you are saying is that it 

	could have; but it could have been made by another shoe?

	A: It could have been made by another shoe in the same general 

	condition with the same mold characteristics and the same size 

	and design.

	Q: And with regard to the number of shoes that were made, 

	you estimated was a one and-a-half billion shoes that come 

	into the country?

	A: The latest information from the Footwear Industry of

     America is that each year approximately 100-excuse me- one 

	and-a-half billion shoes are sold in this country.

	Q: All right. And then your indication was that in a

	particular shoe size it was 20 percent of-

	A: Well, well for size 12, it is about 9.6, 9.7 percent;

	so approximately 10 percent.  And that hypothetical I gave, 

	if there were 200,000 pairs sold, then that would be 20,000.

	Q: But that is exactly what it is is a hypothetical, right?

	A: That is what-

	Q: As you sit-

	A: -I was asked, yes.

	Q: As you sit there you have no idea how many of those

	shoes were made, do you?

	A: I don't think it is 200,000; it is probably less, but 

	I don't know the number now.

	Q: You just don't know?

	A: That is right."

	On redirect, the State again elicited from Bodziak that of the approximated

1.5 billion shoes sold in the United States in a given year, he estimated that

20 thousand would be of the same size and design as defendant's shoes.  When the

State asked "So that is one out of every 300,000?" the defense said, "Objection

Judge," offering no basis for the objection.  The court overruled the objection,

and Bodziak answered "yes."  On re-cross, defense counsel again confirmed that

Bodziak did not know how many of that particular shoe were made or how many of those shoes were in the Chicagoland area at the time of the murder.  

	Defendant maintains that the State failed to lay the proper foundation for

such statistical conclusions and, therefore, the trial court committed reversible

error allowing the testimony in.  At trial, defense counsel did not object at all

to Bodziak's statistical testimony given on direct.  On cross, defense counsel

had Bodziak repeat the number of shoes sold in the United States annually and the

approximate number of shoes with the same size and design as defendant's.  The

first time the defense objected to Bodziak's testimony regarding the comparison

of those two numbers was on re-direct.  This objection was made without stating

its basis.  Our supreme court has held that it is well settled "that the failure

to object on proper grounds at trial results in waiver of the issue through

'procedural default.'" People v. Lewis, 165 Ill. 2d 305, 336 (1995).  Further, defense counsel had Bodziak repeat on cross-examination the testimony about which

he complains now.  A criminal defendant cannot complain on appeal about the

introduction of evidence which he procures or invites.  People v. Williams, 192 Ill. 2d 548, 571 (2000).  Finally, defendant did not object to Bodziak's

statistical testimony on direct.  An issue which has not been objected to during

trial and raised in a post-trial motion is not preserved for appeal.  People v. Fender, 325 Ill. App. 3d 168, 175 (2001).

	In the instant case, Bodziak testified that the numbers he was providing

were approximations based on information obtained from the Footwear Industry of

America as well as from Nike.  Bodziak did not testify to, or claim to have,

exact and certain numbers of shoes produced in this country.  Defense counsel had

the opportunity, and took it, to expose this fact during cross-examination.  The

defense presented their own shoeprint expert who testified that Nike used several

molds to produce the type of shoe worn by defendant and which left the shoe print found at the scene.  Bodziak testified, as defendant himself points out, that he

did not know exact numbers of shoe production, and that the figures he was

testifying to were not specific to the type of Nike Air Bound shoes found in

defendant's house.  Bodziak testified that any figure resulting from dividing the

number of shoes sold in the United States in a year by the number of shoes made

of a particular design should be treated as an "example", not as a conclusive,

reliable number.  Bodziak admitted his numbers were estimates.  Defense counsel

had the opportunity to minimize the effect of Bodziak's testimony during cross-

examination.  Also, the jury was repeatedly informed that Bodziak's conclusion

determined only that defendant's shoe "could have" made the print. Based on the

record, we find that the issue of Bodziak's testimony regarding "statistical

analysis" has been knowingly waived.  

	In People v. Campbell, 146 Ill. 2d 363 (1992), our supreme court held that under appropriate circumstances, shoeprint evidence may be as reliable and

trustworthy as any other evidence.  In People v. Aquinaga, 231 Ill. App. 3d 153 (1992), the State presented testimony from a forensic examiner from the Chicago

Police Crime lab.  That investigator testified that there were 10 individual

characteristics and unique markings found on the defendant's shoes and on

shoeprints found at the scene of the crime, including separated lines, broken

ridges, notches and cuts.  In the investigator's opinion, only the defendant's

shoe could have made the impression on an envelope found near the victim's

apartment. "This shoeprint evidence, standing alone, was sufficient to support

a conviction for murder."  People v. Aquinaga, 231 Ill. App. 3d at 174; citing People v. Campbell, 146 Ill. 2d 363 (1992).  The defendant in Aguinaga had called a manufacturer's agent for the exclusive seller of Pony athletic wear in northern

Illinois.  The agent testified that approximately 2,000 pairs of shoes with the same design and size as defendant's had been sold in the Chicagoland area. For

analysis of case law discussing the admissibility of footprints as evidence, the

issue is thoroughly discussed in Footprints as Evidence, 35 A.L.R. 2d 856, and its many updates.

	Defendant cites People v. Harbold, 124 Ill. App. 3d 363 (1984), for the proposition that is improper to introduce statistical probabilities for the

purpose of establishing a historical fact.  Harbold addressed a situation in which the State's experts testified that they analyzed blood samples prepared

from physical evidence in the case and typed those samples according to ten

systems of genetic characteristics or "markers."  One of the experts testified

that given the ten groups of characteristics tested and the percentage of

population known to display each characteristic..." the probability of an

accidental match is less than one in 500."  Harbold, 124 Ill. App. 3d at 367.  The appellate court reversed defendant's conviction holding that, while experts

may "testify to the percentage of the population exhibiting certain combinations

of blood characteristics," it was improper to express "the similarity between the

perpetrator and defendant in terms of the likelihood of a random match." 

Harbold, 124 Ill. App. 3d at 383. 

	We note that in People v. The Almighty Four Hundred, 287 Ill. App. 3d 123 (1997), this court affirmed the admission of a statistical probability estimate

testified to by a DNA expert.  Citing People v. Miller, 173 Ill. 2d 167, 188-89 (1996), this court held that the trial court did not abuse its discretion in

allowing the DNA expert to testify that the likelihood that the blood on the

defendant's pants came from someone other than the victim was less than one in

a billion.  People v. The Almighty Four Hundred, 287 Ill. App. 3d at 129-30.

	We note that Bodziak's testimony that approximately 1.5 billion shoes are sold in the United States and 20 thousand of those are of the same design and

size as the defendant's shoes was not used in terms of the likelihood of a random

match, as condemned in Harbold.  The resulting estimated number arguably described a percentage of the "shoe population" exhibiting certain

characteristics.  However, comparing the characteristics of shoes with the

combinations of blood characteristics in the population requires quite a leap. 

Our research has not found a reported case discussing the admissibility of

statistical probabilities in a case involving shoeprint evidence.  While this

issue was deliberately waived in the instant case, courts should be concerned

that such testimony may have an impact on a jury out of all proportion to its

true value.

	For the foregoing reasons, in this opinion and for the reasons set out in

our Rule 23 order issued contemporaneously with this opinion, we affirm

defendant's convictions and sentence.

	Affirmed.

	CAMPBELL, P.J. and REID, J., concur.