People v. Seawright , 228 Ill. App. 3d 939 ( 1992 )

593 N.E.2d 1003 (1992) 228 Ill. App.3d 939 171 Ill.Dec. 183

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Keith SEAWRIGHT, Defendant-Appellant.

No. 1-90-0935.

Appellate Court of Illinois, First District, Sixth Division.

May 15, 1992.

James R. Kavanaugh, Chicago, for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, James E. Fitzgerald and Janet C. Mahoney, of counsel), for plaintiff-appellee.

Presiding Justice EGAN delivered the opinion of the court:

A jury convicted the defendant, Keith Seawright, of the murder of his wife, Estralita; he was sentenced to 30 years imprisonment followed by a three year period of mandatory supervised release.

Around 8 a.m. on June 23, 1986, the police were called by the defendant to his home at 262 Arcadia in Park Forest. The police found the defendant's wife, Estralita, in bed; she had been shot twice in the face. She was revived by paramedics but died on the way to the hospital. The defendant subsequently told the police that he conspired with a co-worker, Tim Reynolds, to kill his wife and that Reynolds did the killing. After the police investigated and exonerated Reynolds, the defendant confessed that he had shot his wife. He now maintains that his confession was the result of an illegal arrest and detention; that he was not proved guilty beyond a reasonable doubt; and that other errors deprived him of a fair trial.

The defendant filed a pre-trial motion to quash arrest and suppress evidence, claiming that he was arrested without probable cause. He also filed a motion to suppress his statements, arguing that they were not made voluntarily, and a motion to suppress evidence acquired when his home was searched. When the hearing on the defendant's pre-trial motions commenced, Judge Richard Samuels presided over the case.

The defendant's attorney told Judge Samuels that the motion to quash arrest and the motion to suppress statements were separate motions; however, he believed that the evidence on the two motions would overlap. Therefore, he explained that the evidence presented on the motion to quash arrest would be adopted as evidence on the motion to suppress statements.

After a hearing, Judge Samuels denied the motion to quash arrest; he found that the defendant had been arrested between 2 and 2:30 p.m. on June 23 and that the police had probable cause to arrest him at that time. The motion to suppress statements was continued to a later date.

On the next court date, the defendant's attorney filed a motion to reconsider the motion to quash arrest. He explained that evidence that would be introduced on the motion to suppress statements should also be considered on the motion to quash arrest. Judge Samuels did not say whether he would reconsider his ruling on the motion to quash arrest but continued the case to a later date.

Judge Samuels retired and was replaced by Judge Paul Foxgrover. At the next court date, the defendant told Judge Foxgrover that the case was up on a motion to reconsider the motion to quash arrest. He explained that new evidence would be introduced during the motion to suppress statements which should also be considered on the motion to quash arrest. Judge Foxgrover noted that Judge Samuels had made findings of fact when he denied the motion to quash; he expressed reservations about reconsidering findings of fact. At the defendant's request, however, he agreed to defer his ruling on the motion to reconsider until after the hearing on the motion to suppress statements.

After hearing testimony and arguments on the motion to reconsider, the motion to suppress the defendant's statements and the motion to suppress evidence obtained during the search of his home, Judge Foxgrover denied all three motions.

This is a confusing record, as Judge Foxgrover noted. The parties agreed to hear the pre-trial motions jointly. The statements of facts contained in the parties' briefs do not separate the testimony of the witnesses who testified at the motion to quash and suppress from their testimony at the trial. Our examination of the record discloses that the testimony of the witnesses at the pre-trial hearings was substantially the same as their testimony at trial. In any event, we shall consider the evidence adduced at trial in addition to the evidence presented at the pre-trial hearing in passing on the propriety of the trial judge's ruling on the motion to quash arrest and suppress evidence. (People v. Caballero (1984), 102 Ill.2d 23, 79 Ill.Dec. 625, 464 N.E.2d 223.) For the sake of brevity our statement of facts will, except in certain specified instances, make no distinction between the pre-trial testimony and the trial testimony.

Officer Fred Bailey of the Park Forest Police Department testified that he went to 262 Arcadia in Park Forest around 8 a.m. on June 23, 1986, in response to a call about a possible homicide. The defendant was at the front door; he told Bailey that his wife, Estralita, had been injured and was in the bedroom. Bailey and Sergeant Peck went into the bedroom and observed the victim and then went outside where the defendant was standing in the driveway. The defendant appeared unemotional.

The officers asked him what he had done before calling them. The defendant said that he had left for work around 10:30 p.m. the previous night and worked the 11 to 7 shift at a paper company in Alsip. He left work around 7:10 a.m. and arrived home approximately 20 or 25 minutes later. He parked in the driveway and used his key to enter the house through the back door. He saw several items of paper scattered about the kitchen and the living room, and all the lights in the house were on. He called to his wife but received no answer. He went into the bedroom and saw his wife lying on the bed. He tried to find her pulse and to wake her. He then went into the living room where he found the phone unplugged; he plugged it into the wall and called the police. He ran next door to get his neighbor; he brought the neighbor back to his house, showed her his wife and told her that he had called for the police and an ambulance.

Detectives Kuester, Lancaster and Myers arrived at the scene around 8:15 a.m. Lancaster took photos of the scene. Kuester talked with Bailey in the driveway, and Bailey told him what had happened. Kuester and Bailey approached the defendant and had a brief conversation with him. Kuester identified himself and asked the defendant to tell him what had happened. The defendant told Kuester essentially the same story he had related to Bailey. He said that when he found his wife, he pulled the blankets back and felt her body to see whether she was breathing. He went to the neighbor's house and knocked on her door; when she came to the door, he told her that his wife had been raped and beaten, and he told her to call the police. He did not explain why he found it necessary to call his neighbor.

Kuester told the defendant that he wanted Bailey to take a formal statement for his case report; he asked the defendant if he would accompany Bailey to the police station for an interview. The defendant said that he would. During this conversation, the paramedics brought the victim out of the house and took her away in an ambulance. Kuester testified that the defendant did not say that he wanted to go to the hospital with his wife. Bailey drove the defendant to the police station; the defendant was not handcuffed, and he sat in the front seat of the car. On the way to the police station the defendant said that he needed some cigarettes. Bailey stopped at a gas station where the defendant went inside alone and purchased cigarettes.

When they arrived at the police station, Bailey took the defendant into the detectives' office. Bailey worked on his notes and only spoke to the defendant to verify the information he had previously given. Periodically, the defendant would ask Bailey if he thought Estralita was dead, but he never asked if he could go to the hospital.

After the defendant and Bailey left, Kuester and Lancaster called for the evidence technicians and continued their investigation. The house was secured as a crime scene; officers were stationed at various locations to prevent access to the scene. The evidence technicians arrived around 9:30 a.m., and Kuester and Lancaster stayed and assisted them until about 11 a.m.

Kuester and Lancaster walked up the driveway and observed the exterior of the house and the back yard. They found a shell casing in the driveway and a cassette tape on the air conditioner in the back yard. They found some jalousie window slats on the ground outside the garage, and they also noticed broken glass on the ground outside the garage and through the window in the interior of the garage. There was a sizeable opening into the garage. The doors to the garage were locked.

Kuester and Lancaster decided to look around the house to try to determine any offender's point of entry. They entered the kitchen and observed that the rear kitchen window was completely open. The screen from the open window was in the back yard near the window; it appeared to have been pushed out from inside the house. Kuester noticed that the window on the storm door was loose from its frame. The storm door and the wooden door behind it showed no signs of forcible entry. The windowsill underneath the open kitchen window was clean and free of any marks. The aluminum kitchen sink below the window was free of any scuff marks or shoe prints. The window edge and glass were uniformly dusty with no marks suggesting entry or exit through the window. There was dust on the window and around the frame of the window.

In the living room, Kuester and Lancaster saw various items, including department store bags and purses, scattered on the floor. The furniture, stereo equipment and television all appeared to be in their proper places. Books, papers, purses and other small objects were lying on the floor; some of these items were stacked on top of each other. There were no signs of forcible entry on the front door.

In the first-floor bedroom they saw a large water bed covered with blood. There was also blood on the floor near the bed. The blood was still in liquid form; some of it had started to coagulate. Kuester found two shell casings in the bedroom, one on the east side of the bed and one on the west side. There were cosmetics, jewelry, some clothing, a clock radio and a fan on top of the dresser. The drawers in the dresser were closed. There was jewelry hanging out of boxes in the bedroom, but it appeared undisturbed.

Kuester examined the two bedrooms on the second floor. One bedroom appeared to be an office. There were some items neatly stacked on the floor. The other bedroom contained a set of weights and a weight bench.

Kuester and Lancaster did not think that the house appeared to have been burglarized. They photographed the scene and then returned to the police station to request consent to search the vehicles in the driveway and in the garage. When they arrived at the station, the defendant was sitting in a chair in the detectives' office with Bailey and Myers; he was not handcuffed. Kuester showed the defendant two consent forms and asked him if he would give the officers permission to search the vehicle in his garage and the one parked in his driveway. The defendant said that he would give his permission, and he signed the forms, which also gave the officers permission to search the defendant's house. Kuester returned to the defendant's house and advised another officer on the scene that he had obtained the defendant's permission to search the two vehicles.

Robert Mazor, an evidence technician with the Cook County Sheriff's Police Department, arrived at the scene around 9:30 a.m. Lancaster showed Mazor around the house. They did not begin to process any evidence until Kuester returned with the signed consent forms around 10:30 a.m.

Mazor examined the upstairs office/bedroom and found a purse lying on the floor. A wallet containing money, credit cards, and a checkbook was on the desk. There was a cosmetics bag on the floor, and its contents appeared to have been poured out onto the floor next to it. In the kitchen, Mazor noted that the window over the sink was open and the screen was lying on the ground outside; the screen appeared to have been removed from inside the house. He noted that the automatic dialing portion of the alarm system had been disconnected from the phone line box. In the front room, he saw several items placed on top of each other; he thought this was unusual.

In the first-floor bedroom, he found two.38 caliber automatic shell casings; one was found on the east side of the bed and the other was found on the west side of the bed. He recovered four .38 caliber cartridges from a drawer in the nightstand on the west side of the bed.

Mazor found a shell casing on the driveway near the back door and two cassette tapes lying on top of the air conditioner behind the house. He examined the garage and noted that the slats from the garage window had been removed from the window and were lying on the ground outside the window. There were cobwebs around the window, suggesting to him that no one had entered the garage through that window. He also noticed that the garage of 260 Arcadia, the house just west of the defendant's house, also had a slat window from which the slats had been removed.

Inside the defendant's garage, Mazor noticed that the switch for the security light outside the garage was in the "off" position. The light was equipped with a light sensor, enabling it to turn on automatically at night and turn off automatically in the morning; however, the switch would have to be in the "on" position for the light to work. He examined the Lincoln Continental parked inside the garage and found that the cover on the steering column had been pried away and the turn signal lever had been broken off. He found both of these items in the garbage can in the garage. The ignition system on the car had not been bypassed; therefore, it could not have been taken without a key. The car's alarm system had been deactivated.

Mazor noticed several markings on the car's trunk lock. He removed the lock and submitted it to the crime laboratory for comparison testing, along with a screwdriver he found on the workbench. During his examination of the scene, he recovered approximately 25 latent fingerprint lifts, as well as several footwear impressions.

While Mazor was examining the house, Kuester used a key which he found in the house to open the garage. He found broken glass on a workbench underneath the jalousie window, but none of the tools or other items on the workbench appeared to have been disturbed. There were undisturbed cobwebs across the opening of the window. Kuester said that he did not think anyone could have gone through the window without disturbing the cobwebs.

After he finished examining the garage, Kuester interviewed several of the defendant's neighbors, including Marilyn Rice. On the motion to quash arrest, he testified that he asked Rice about the window that was loose on the storm door; she told him that the window had been loose from the frame for quite some time, perhaps more than a month. He asked her whether the security light was usually on, and she said that it was on a timer and turned on every night. She said that the light had not turned on the previous night, however, and she became alarmed when she noticed that it was not lighted. She also told Kuester that Estralita had said that she always turned on the alarm system when she went to bed.

While Kuester was interviewing witnesses, Lancaster returned to the station and found the defendant sitting in the detectives' office with Bailey. Around 11:30 a.m., he called the hospital and learned that Estralita had died. When the defendant was told that his wife had died, he sobbed and asked to make a phone call.

Kuester returned to the police station between 1 and 2 p.m. The defendant was sitting in the detectives' office drinking coffee. Kuester summoned Lancaster and told him that the module on the defendant's home alarm system which enabled the system to dial the police had been unplugged. Kuester also had learned that the security light over the garage turned on every night, but that it did not do so on the night of June 22. He said that the window on the storm door, which the defendant had said was newly damaged, had been loose from its frame for a long time. Kuester noted that there was a substantial gap between the time the defendant arrived home at approximately 7:35 a.m. and his call to the police at approximately 7:45 a.m.; Kuester did not think that the defendant's explanation of his actions during that time adequately accounted for the entire period.

Kuester and Lancaster spoke with the defendant around 2:30 p.m. Kuester told the defendant that he wanted to ask him some questions about his wife's death, and he gave the defendant a copy of a "Constitutional Rights of Persons in Custody" form. The defendant read and signed the form; he said that he understood his rights and that he would talk to them. Kuester and Lancaster felt that the defendant was unemotional at the scene and at the station and that his answers sounded as if they were rehearsed. Also, his answers were inconsistent with the information received from Marilyn Rice, and his explanation of the reason that the alarm was disconnected did not make sense. From his examination of the house, Kuester did not believe that the house had been burglarized; valuable items remained in the house and there were no signs of forcible entry. Kuester and Lancaster said that after this conversation with the defendant they would not have permitted him to leave without instructions from the State's Attorney's office. Judge Samuels later found that it was at this point that the defendant had been placed under arrest. The defendant does not maintain that the police lacked probable cause to arrest him at that time.

Around 4 p.m. on that same day Kuester and Lancaster asked the defendant to submit to a polygraph examination. The defendant agreed, and Kuester and Lancaster drove him to the testing facility in Hillside. They stopped at McDonald's on the way to the facility and bought food for themselves and for the defendant. At the pre-trial hearing but not at the trial, Officer Lancaster testified that the polygraph examiner told the officers that the defendant was being deceptive in certain answers. After the test was completed, the officers took the defendant back to the station. The defendant was nodding off in the car. They arrived back at the station around 7 p.m. and Kuester advised the defendant that he was under arrest. Because the defendant appeared tired, the officers decided not to question him; instead, they put him in a cell and let him rest until morning.

After the defendant was placed in the cell, Kuester came and asked him to sign a form allowing the police to take his shoes to determine whether they were used in the crime and a form allowing the officers to search his house again. The defendant signed the forms and gave the officers his shoes; he returned to his cell where he remained until 8:30 the next morning.

After giving the defendant breakfast on the following morning of June 24, the officers brought him into the detectives' room and read him his rights which the defendant said he understood. Kuester told the defendant that there were some inconsistencies in his statement. The officers told him that they thought he was being deceptive, and they thought there was something more that he could tell them about what had happened to his wife. The defendant then told the officers that he had been at the home of Tim Reynolds, a co-worker, for a barbecue one month previously and had spoken with Reynolds about the defendant's debts and about Estralita's life insurance policy. He and Reynolds concluded that the defendant's financial pressures would be relieved if Estralita were killed. The defendant and Reynolds then went to the defendant's house, and he showed Reynolds where his two handguns were located. Over a period of several weeks the defendant and Reynolds discussed the matter at work; finally, they agreed that Reynolds would kill Estralita while the defendant was away and make it look as if she was killed during a burglary. While the defendant was at work on the night of June 22, he signaled Reynolds to follow through with the plan. He rushed home from work the next morning to see whether the job had been done.

The detectives went over the defendant's statement with him a couple of times, trying to get the facts straight. Around 11:30 a.m., they returned the defendant to his cell and began gathering information about Reynolds. They contacted Reynolds' employer, FSC Paper Company, and learned that he was scheduled to work that afternoon. They contacted the State's Attorney's office and requested a conference with an assistant State's Attorney from the felony review unit. Lancaster, Kuester and Officer Fitzgerald went to the Alsip Police Department and then went to FSC Paper Company and took Reynolds into custody. With Reynolds' permission, they searched his locker at FSC. They also searched the defendant's locker pursuant to a consent form they had obtained earlier. They arrived back at the Park Forest police station between 3:30 and 4 p.m. and met Assistant State's Attorney Schweihs.

Schweihs received a call from either Fitzgerald or Kuester around 2 p.m.; he did not try to contact a court reporter after receiving the call. He arrived at the station around 3:30 or 4 p.m. and questioned the defendant in the detectives' room. The defendant had already signed a Miranda waiver form; he asked the defendant if he had signed the form and if he wanted to talk to him. The defendant did not request an attorney. Schweihs was aware that the defendant had been in custody since Monday. The defendant told Schweihs the same story about how he and Reynolds had planned to kill his wife.

After talking with the defendant, Schweihs questioned Reynolds for approximately 2½ hours. Reynolds said that the defendant and Estralita had attended a cookout at his house about one month previously and that he and the defendant had talked about the defendant's financial troubles. However, Reynolds said that they did not discuss Estralita's life insurance policy, nor did they discuss shooting Estralita. Reynolds admitted that he had gone with the defendant to his house and observed several weapons and then returned to Reynolds' home with some beer.

With Reynolds' consent, Kuester, Lancaster, Schweihs, Fitzgerald and a South Chicago Heights police officer searched Reynolds' home and interviewed his wife. Reynolds' wife indicated that he was home sleeping on the night of June 22 and that he did not wake up until 8:30 or 9 a.m. the following morning. The officers returned to the Park Forest police station and interviewed Reynolds again. Reynolds agreed to take a polygraph examination, and the officers arranged for the examination to take place the following morning at the Illinois State Crime Laboratory in Joliet.

After Reynolds was taken to the Matteson Police Department lockup facility around 12:30 or 1 a.m., Schweihs questioned the defendant again. Schweihs read the defendant his rights and he indicated that he understood them. The defendant agreed to make a written record of the statement he had made that afternoon. As the defendant repeated his statement, Fitzgerald typed what he was saying. The defendant read the typed statement, made corrections to it and signed it. The defendant was returned to the cell around 2 a.m. At the conclusion of the statement, Schweihs approved murder and solicitation to commit murder charges against the defendant. Schweihs testified that while the defendant was giving his statement, he did not appear tired, and he was not falling asleep.

Later that morning, Fitzgerald and Lancaster took Reynolds to the crime laboratory in Joliet for a polygraph examination. Kuester called the State's Attorney's office and spoke with Assistant State's Attorney Patricia Woulfe. Kuester explained to Woulfe that the detectives wanted to continue their investigation, and he asked for permission to hold the defendant another day at the station, rather than take him to court. Woulfe gave Kuester approval to continue holding the defendant.

Fitzgerald and Lancaster returned to the Park Forest police station around 11:30 or noon and discussed with Kuester the results of the polygraph test given to Reynolds. The detectives concluded that Reynolds was not involved in the murder and that the defendant had falsely implicated him.

Around 4 or 4:30 p.m. Fitzgerald and Lancaster brought the defendant into the detectives' room, read him his rights and began questioning him. The defendant admitted that Reynolds had not been involved in the shooting. The officers located Kuester and told him that the defendant had changed his story. Lancaster then released Reynolds from custody.

After advising the defendant of his rights again, Kuester and Fitzgerald asked him whether he had lied about Reynolds' involvement in the murder. The defendant admitted that he had lied about Reynolds' involvement, and he said that he had personally shot his wife. The detectives talked with the defendant until about 6:25 p.m.; Fitzgerald took a photograph of the defendant eating dinner in the detectives' office around 6 p.m. At the end of the conversation they asked him if he would agree to provide a written statement, and he said that he would. As the defendant repeated his statement, Fitzgerald wrote what he was saying. He then went into another room and typed the statement; he returned and presented the typed copy to the defendant. The defendant read the statement, made some corrections and additions and signed it. In the statement the defendant said that he had shot Estralita twice so that he could collect the money from her life insurance policy. Estralita had incurred a lot of bills, and he needed the life insurance money to pay them. He admitted that he had scattered papers around, pushed the kitchen screen out, pulled the slats out of his garage window and his neighbor's garage window and damaged the car to make it look as if Estralita had been killed during a burglary.

Fitzgerald took another photograph of the defendant at 7:22 p.m. as he was making corrections on the written statement. The statement began at 6:36 p.m. and concluded at 7:24 p.m.; the defendant was then returned to his cell for the night. The next morning, June 26, the defendant was taken to the Markham courthouse for arraignment.

John Watley, Estralita's father, testified that she had been at his house on Sunday, June 22, around 7 p.m. They talked about a house that she was in the process of buying, and she asked him to lend her $8,000 to enable her to purchase the house. He agreed to give her the money. He gave her money now and then for things that she wanted, and he had purchased furniture for her house. When she was growing up, she had become accustomed to a good lifestyle.

Watley had paid the premiums on a $25,000 life insurance policy for Estralita until she married the defendant. Watley and his wife were the beneficiaries of the policy. After Estralita married the defendant, the insurance agent told Watley that the beneficiary on the policy had been changed.

On the morning of June 23, an unidentified person called Watley and told him that his daughter had a problem. He immediately went to her house, where he saw the defendant standing by himself in the yard. Just after he arrived, the paramedics brought Estralita out and put her in the ambulance. When the ambulance pulled away, he said to the defendant, "I'll see you at the hospital." The defendant said, "Okay." He went to the police station twice that day and tried to see the defendant, but the officers told him that he could not see the defendant because he was under investigation.

Dr. Joanne Richmond, a pathologist, testified that she performed an autopsy on Estralita Seawright. Her external examination revealed a gunshot wound that entered the left eyebrow and exited just above and in front of the right ear, and another gunshot wound on the left side of the lip. There were embedded particles of gun powder around the entrance wound by the eyebrow, indicating that the gun was between six inches and three feet from the eye when it was fired. The exit wound by the right ear had tearing and abrasions, indicating that the head was supported, possibly by a pillow, when the bullet was fired. The cause of death was massive bleeding caused by multiple gunshot wounds.

Karen Vanderwerff, a forensic firearm and toolmark examiner with the Illinois State Police, examined three cartridge casings and four live cartridges recovered in this case. She determined that all three of the casings had been fired from the same gun. She also found that the three casings were of the same caliber as the cartridges, and that at least one of the cartridges had been chambered in the same .38 caliber automatic weapon from which bullets from the three casings had been fired.

Vanderwerff also examined the lock assembly taken from the trunk of the Lincoln Continental parked in the defendant's garage and a screwdriver which was also found in the garage. She determined that at least one of the marks present on the lock assembly had been made with the screwdriver.

Vanderwerff examined photos of the victim and noted that there was stippling around the wound above the left eye, indicating that the gun was between six inches and two feet away from the victim when it was fired. There was no stippling around the wound on the lip, indicating that the gun was three to five feet from the victim when it caused that wound.

Michael Wheeler and Paul Hodges, paramedics with the Park Forest Police Department, testified that they went by ambulance to 262 Arcadia at 8 a.m. on June 23, 1986, in response to a call regarding a battery victim. Wheeler checked the victim and found that her body was warm but she was not breathing and had no pulse. Her body was not stiff and there was no pooling or lividity. Wheeler asked Hodges to help him try to revive the victim.

Wheeler, Hodges and their lieutenant successfully revived the victim. The defendant, who was standing in the doorway, did not say anything, but looked surprised. They took the victim to the hospital in the ambulance; they lost her pulse on the way. The hospital staff tried to revive the victim, but they were unsuccessful. She was pronounced dead around 9:10 a.m.

James Fazekas, a latent fingerprint examiner with the Illinois State Police Bureau of Forensic Sciences, testified that 16 of the 25 lifts obtained from the defendant's home were suitable for comparison. He conducted a comparison of the lifts and found that 12 of them were not the prints of the victim, and he could not give an opinion on whether four of them were made by her. He determined that none of the 16 prints was made by either the defendant or Reynolds.

The defendant testified that he and his wife, who worked as a cosmetologist, were preparing to move to a new house in Matteson, Illinois. When he left for work around 10 p.m. on June 22, 1986, his next-door neighbor and one of her daughters were at his house with Estralita, who was talking on the phone. He worked until his relief arrived around 7:20 a.m. the following morning. He punched out, but the time clock was not working; it had been broken all week. He changed his clothes and drove home, arriving there around 8 a.m.

He parked his car in the driveway, and as he approached the kitchen door, he noticed that the screen on the storm door was loose. He entered the house and saw that all the lights were on and there were papers and clothes strewn about the room. He thought this was unusual. He called his wife's name, but she did not respond. He went into the bedroom and saw a lump in the bed; Estralita looked as if she was sleeping in the bed with the covers over her head. He pulled the covers back and saw that her face was swollen and there was blood all over the bed. He began crying and screaming; he tried to wake her up; he could not feel her pulse. He ran to the front room to call the police, and found that the phone was unplugged. He plugged the phone into the wall and called the operator; she connected him with the police. He told the dispatcher that his wife had been beaten and raped and asked her to send a squad car and an ambulance right away.

He ran next door and banged on Marilyn Rice's back door. She came to the window and asked what was wrong. He asked her whether she had heard anything the night before and to come to his house. She came to his house, and he showed her how he had found Estralita. She screamed and asked him whether he had called the police. He said that he had called them and they were on their way. He asked her to call his in-laws; she called Mr. Watley and told him that there had been an accident and asked him to come over immediately.

When the police and the paramedics arrived, he directed them to the bedroom. He watched as the paramedics worked on Estralita, and he kept asking them if she was going to be alright. Officer Bailey grabbed his arm and took him outside and questioned him. He was upset and crying and punched the fence a couple of times.

The officers questioned him until about 8:45 a.m. and then took him to the station. He told the officers that he wanted to go to the hospital with his wife, but they told him that he had to come to the police station for questioning. Officer Bailey grabbed him by the arm and put him in the squad car. The defendant said that his mother-in-law, Mrs. Watley, was standing nearby and heard him tell the police that he wanted to go to the hospital. Mr. and Mrs. Watley told him that they would meet him at the hospital, and he replied, "Okay, I'll see you there."

Although his car was operable, the police did not offer to let him follow them to the station. Instead, he rode in the squad car with Officer Bailey. He was not handcuffed, and he sat in the front seat of the car. On the way to the station, he asked Bailey if he had any cigarettes; Bailey stopped at a gas station and bought the defendant some cigarettes.

When the defendant arrived at the police station, an officer took him to an interview room and left him there alone. About 10 minutes later, Sergeant Kuester came in the room and questioned him for approximately 30 minutes. Kuester or Lancaster told the defendant that they had to search the premises and they needed his signature. He signed two forms allowing the officers to search his two vehicles. After he signed the forms, the officers asked him to empty his pockets; they took his keys, watch, wallet and belt. The officers locked the defendant in a cell and left. About an hour later the officers returned and took the defendant back to the same interview room for more questioning. At 1:30 p.m., he signed a form giving the officers permission to search his locker at work.

The police did not tell the defendant that Estralita was dead until just before they were going to take him for a polygraph test. He asked if he could make a phone call, and the officers said that he could. He called his mother at work and told her that Estralita was dead.

He did not remember stopping for food on the way to the polygraph test. The polygraph examination took two or three hours. After the test was completed, they returned to the Park Forest police station and the officers took his shoes, belt, watch, and wallet; he was then returned to a cell. He could not remember at what point during the day they took his clothes.

The defendant testified on the pre-trial motions, but not at the trial, that the officers brought him back to the detectives' room and told him that he had flunked the polygraph test and that they thought he was lying. They asked him to name people that he had invited to his house within the past few months.

The officers put him back into the cell, and although he was tired, he was unable to sleep. The steel bunk in the cell did not have a mattress or a blanket; there was a bright light shining directly into the cell; and the drunk person in the adjacent cell sang and screamed all night.

The next day the officers questioned him again. They told him that he was lying and said that he had "planned it." They had all of his bills, and they asked him how he could afford to pay them. They asked whether Estralita had a boyfriend. He told them that she had been married twice, and she was dating someone when they met. Her ex-boyfriend had come over to their house one night after they were married; he had a gun and was banging on the door and screaming.

The officers asked the defendant whether he kept weapons in the house. He told them where he kept his two guns, and they asked who else knew where the guns were kept. He said that Estralita knew where they were, and his father knew that he had the guns. They asked him to name all of the people that he let into his home, and he mentioned Tim Reynolds. They asked where Reynolds lived and worked, and he told them. One of the officers left the room for a while, and when he came back he asked several questions about Reynolds; the officer suggested that Reynolds was the killer. The defendant told the officers that he had shown Reynolds his guns, but that he could not believe that Reynolds had killed Estralita. This questioning went on for hours. The defendant was tired and upset, and he could hardly keep his eyes open.

The officers repeatedly put the defendant in the cell and brought him back out again, telling him that they did not think he was telling the truth. They told him that they had checked out Reynolds and determined that he was not involved. The defendant told the officers numerous times that he was tired and he wanted to stop the questioning, but they continued interrogating him.

Schweihs came in and introduced himself. Lancaster said, "Okay, Keith, tell the assistant State's Attorney what you told us." The defendant said, "What did I tell you?" Lancaster said, "You know, Reynolds did it." The defendant said that he had not told the officers that Reynolds did it. Schweihs got up and left; he returned a few hours later. The defendant remembered someone typing; the officers shook him and woke him up a few times and told him to sign documents. He signed and initialed several documents. He signed the statement and initialed changes on it because the officers told him to. Some of the information on the statement came from him, but about 80 percent of it came from the police officers. The officers asked him to read the statement, but he refused.

At one point, the officers took the defendant out of the cell and drove him back to his house. He did not know what day it was. They went to the back yard and asked him where he had thrown the guns. He said that he had not thrown any guns anywhere.

The defendant signed a lot of things because the officers told him to. He did not know what he was signing. The officers led him to believe that they were going to let him go. They never told him that he was under arrest; they just kept telling him that they had a few things to clear up. He was unaware that people were trying to contact him at the police station. When he was shown his second typed statement at trial, he said that he did not remember signing the statement or writing, "I also suspect that she was seeing another guy named Jess" at the bottom of the page; however, he acknowledged that the sentence and his signature were in his handwriting.

During his testimony on cross-examination at trial, the defendant revealed his financial situation. Before he married Estralita, he had very few financial obligations. At the time of her death, he owed $16,000 on one car and $10,000 on another. He owed $16,000 on credit cards and had a bank loan in the amount of $19,490. Estralita had purchased a mink coat and charged it to their American Express card. They had sold the house on Arcadia for $47,000 and were in the process of purchasing a new house for $85,000. Estralita had purchased carpeting for the house on Arcadia in December of 1985, and she was in the process of buying rugs and drapes for their new house.

At the hearing on the motion to suppress the defendant's statements, Assistant State's Attorney Patricia Woulfe testified that she received a phone call from attorney James Kavanaugh around 5:15 p.m. on Wednesday, June 25, 1986. Kavanaugh told her that he was trying to contact the defendant but the police would not let him speak to the defendant. At Kavanaugh's request, Woulfe called the police station around 5:30 p.m. and spoke with Officer Lancaster. She requested that the officers refrain from questioning the defendant. She called the station again around 6:50 p.m. and asked for Detective Kuester, but she was unable to speak with him.

The defendant's mother, Dorothy Mae Seawright, testified both at the motion to suppress and at trial. She said that around 4:15 p.m. on Monday, June 23, 1986, she received a telephone call at work from the defendant. He told her that Estralita had been shot and raped, and said that he had just learned that she was dead. He said that he was at the Park Forest police station and that he was getting ready to take a polygraph test.

A few minutes later, she called back to the police station and was told that the defendant had left. She went home and then called the station again. The person who answered told her that the defendant was not back yet. When her husband arrived home, she told him what had happened and they both went to the Park Forest police station around 7:30 or 8 p.m. Detective Kuester told Mrs. Seawright that she could not see the defendant, and he suggested that she go home and relax. He told her that he would contact her when they had finished questioning the defendant.

On Tuesday, June 24, Mrs. Seawright called the station approximately three times, and each time she was told that she could not speak with the defendant because he was being questioned. She went to the station around 1 p.m.; an officer told her that she could not see the defendant because they were still questioning him; he said that they would contact her when they were finished. She returned to work; she called the police station again before she went home from work and was told that she still could not speak with the defendant. She called attorney James Kavanaugh's office and left a message for him.

She returned to the police station on Wednesday, June 25 and was once again told that she could not see the defendant. Kavanaugh returned her call that day, and she arranged for him to represent the defendant. The defendant never asked her to call a lawyer; he did not think he needed one. Mrs. Seawright finally saw the defendant on Thursday, June 26, in the courtroom.

Marilyn Rice testified at the hearing on the motion to quash arrest, the hearing on the motion to suppress statements, and the trial. Shannon Hollum, Rice's daughter, testified at the hearing on the motion to quash arrest and at the trial. Rice and her children had moved into the house next door to the Seawrights on June 6, 1986. Estralita came over to visit Rice the day she moved in, and they instantly became friends. On June 23 she went over to Estralita's house around 1 a.m.

Rice had noticed that the security light over the garage was lighted every night previously, but it was not lighted that night. When Estralita answered the front door, Rice told her that the light was not on; Estralita said that she did not know what was wrong with it, but she was afraid to go out to try to turn it on.

Rice's daughters, Shannon Hollum and Shaundra, came over to Estralita's house shortly after Rice arrived. Rice went home around 1:30 a.m. and went to bed. She did not wake up or hear anything unusual that night.

Shannon Hollum testified that she waited outside the Seawrights' house that night and saw the defendant taking the garbage out. At that time, the security light was on. After the defendant left, she went inside the house. At that time, the security light was off. When she entered the house, her mother and her sister Shaundra were there. Shannon went home around 2 a.m.; she stayed up and watched television until about 2:45 a.m.; and then went to bed. She did not hear anything unusual that night.

The following morning, Rice heard the defendant banging on her door and screaming. He told her that Estralita had been raped and beaten and he asked her to come over to his house. He did not ask her to call the police or an ambulance. She went to the defendant's house and saw Estralita lying on the bed. She asked the defendant if he had called the police and the paramedics, and he said that he had. She went into the living room and saw cosmetics bags strewn about the floor.

At the hearing on the motion to suppress statements, Rice testified that Estralita had told her that she turned on the alarm system when she was home alone. She also testified that Estralita had received a couple of phone calls from an unidentified man three or four days prior to her death. She contradicted Kuester's testimony about the window on the storm door. Kuester had testified that Rice told him that the window had been loose for more than a month; but she testified that she had not told him that and that the window had not been loose prior to the day of the murder. She also testified that the defendant had his hands behind his back when the officers put him into the rear of the squad car, and she thought that he was handcuffed.

Larry Hutson testified that his back yard faced the back yards of the houses on Arcadia and that his yard was four houses away from the defendant's yard. Around 5 a.m. on June 23, 1986, he heard two explosions that sounded like gunshots; they were about 1½ seconds apart. He could not tell which direction the sounds came from; they could have come from the high crime area near his house. He said that he had heard a lot of firecrackers around the fourth of July, but these explosions did not sound like firecrackers. He did not call the police.

Robert Parks, John Packwood and Cleophus Dell all worked with the defendant and testified they saw him on the morning of June 23. Parks said he last saw him around 6:45 a.m.; Packwood testified he relieved the defendant around 7:15 that morning and talked with him for three or four minutes before Packwood started his shift. The defendant did not appear nervous or hurried. Dell testified he saw the defendant in the parking lot around 7:28 that morning and that the defendant did not appear unusual.

Officer Fitzgerald testified in rebuttal that when the defendant gave his first written statement between 11:30 p.m. on Tuesday, June 24 and 2 a.m. on Wednesday, June 25, the defendant never nodded off and the officers never had to wake him up to answer questions. He appeared alert and was always responsive to the questions he was asked. He never complained about not having enough sleep.

Officer Lancaster testified in rebuttal that the defendant was brought out of his cell approximately four times for questioning. During the entire period he was detained at the Park Forest police station, the defendant was brought out of his cell and questioned for a total of nine or ten hours. The only time he saw the defendant nod off was on the night of June 23, before 7 o'clock; the officers then put him in his cell so that he could rest for the night.

The parties stipulated that no gunshot residue was found on the pants and shirt that the defendant was wearing when the police arrived at his house, but that those items could have been in close proximity to a discharging firearm. They also stipulated that the driving time from FSC Paper Company to the defendant's residence was approximately 25 minutes when driving at the posted speed limit. Blood found underneath the victim's fingernails could have come from either the victim or the defendant, but did not originate from Timothy Reynolds. One Caucasian head hair was found on the victim's panties, which did not originate from the victim, the defendant, or Timothy Reynolds. The footwear impressions found at the scene did not match each other, and they did not match the shoes the defendant was wearing at the police station or another pair of men's gym shoes found in his house. The parties further stipulated that it was impossible to determine the age of a footwear impression.

The first question to be addressed is whether the defendant was illegally arrested. The defendant does not dispute the trial judge's finding that the police had probable cause to arrest him after 2 p.m. on June 23. Instead, he argues that Judge Samuels erred in finding that the defendant was not under arrest when he left his home with the police around 8:30 that morning, before they had acquired probable cause.

In determining whether an individual was under arrest, a trier of fact must determine whether a reasonable person in the same circumstances, innocent of any crime, would have concluded that he was not free to leave. (People v. Brown (1990), 136 Ill.2d 116, 125, 143 Ill.Dec. 281, 554 N.E.2d 216.) Because the test is objective rather than subjective, it is irrelevant whether the defendant believed he was under arrest or whether the police intended to detain the defendant against his will, unless that intent was conveyed to the defendant. (People v. Bury (1990), 199 Ill. App.3d 207, 213, 145 Ill.Dec. 281, 556 N.E.2d 899; People v. Holveck (1988), 171 Ill.App.3d 38, 47, 121 Ill.Dec. 25, 524 N.E.2d 1073.) A reviewing court may not reverse the trial judge's finding on a motion to quash unless that finding was manifestly erroneous. People v. Booker (1991), 209 Ill.App.3d 384, 391, 154 Ill.Dec. 211, 568 N.E.2d 211.

The defendant's argument depends upon his own testimony that he wanted to go to the hospital with his wife but the police told him that he had to go to the station with them. The defendant testified that he told the officers numerous times that he wanted to go to the hospital; the police officers testified that the defendant never made any such request.

The defendant also relies on Marilyn Rice's testimony that she thought he was handcuffed and placed in the back seat of the squad car outside his house. However, the defendant testified that he sat in the front seat and was not handcuffed.

The record supports the judge's finding that the defendant was not under arrest when he summoned the police to his home and then agreed to accompany Officer Bailey to the police station to assist in the investigation of his wife's murder. The judge concluded that a reasonable man in the defendant's situation would have believed that he was free to go to the hospital or to the police station, and that this defendant voluntarily chose to go to the police station. Implicit in this finding is that the judge did not believe the defendant's testimony that he repeatedly expressed to the officers his desire to go to the hospital.

The cases cited by the defendant, Dunaway v. New York (1979), 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824, People v. Avery (1989), 180 Ill.App.3d 146, 128 Ill.Dec. 691, 534 N.E.2d 1296, and People v. McGhee (1987), 154 Ill.App.3d 232, 107 Ill.Dec. 369, 507 N.E.2d 33, are factually inapposite.

In Dunaway, it was conceded that the police would have restrained the defendant if he tried to leave the police station. In Avery, the defendants were picked up at their homes and taken to a police station. The officers told the defendants they were investigating a shooting. The defendants were not told they were free to leave; each was left in an interrogation room and was told the officers would "get back to him later." (180 Ill.App.3d at 153, 128 Ill.Dec. 691, 534 N.E.2d 1296.) The police reports stated that the defendants had been arrested at their homes.

In McGhee, the police approached the defendant in his uncle's back yard the day after a killing and asked him to go with them to the police station. They drove the defendant to the station in an unmarked police car; on the way, they drove past the area where the victim's body had been found. The defendant was placed in an interview room at the station and left alone. He was later questioned four or five times over a 12-hour period and eventually he made an incriminating statement. The defendant was a juvenile, a fact the McGhee court emphasized.

The facts of this case are more similar to those of People v. Woodson (1991), 220 Ill.App.3d 865, 163 Ill.Dec. 369, 581 N.E.2d 320. In Woodson, the defendant called the police after his wife and daughter were killed. When the police arrived, the defendant told an officer that someone named "Hollywood" had murdered his wife and daughter, and he gave the officer a license plate number and Hollywood's address. The victims were taken to the hospital; the defendant's wife was believed dead, but it was not known whether his daughter was dead. The defendant was also taken to a hospital because he complained of pain in his chest. After he was released from the hospital, the defendant accompanied the officers plastic bag containing several types of ammunition was found in a gun cabinet in defendant's bedroom. Defendant does not quarrel with testimony concerning .38 caliber ammunition, but only with that regarding ammunition which was not suitable for use in the gun found under the mattress. Defendant maintains that such testimony was unrelated to the crimes charged and tended to suggest that the defendant is a violent person. This issue has been waived by defendant's failure to object to this testimony at trial. (People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124.) Moreover, we believe that this testimony would have little, if any, prejudicial effect. See People v. Brown (1982), 106 Ill.App.3d 1087, 62 Ill.Dec. 670, 436 N.E.2d 696.

Defendant next contends that his trial counsel was ineffective because he did not object to the introduction of the cocaine into evidence on the basis of an inadequate chain of custody and because counsel's argument to the jury focused on the armed violence charge while ignoring the charge of possession of cocaine. To establish ineffective assistance of counsel, defendant must show that his counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel's errors the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.) Errors in trial strategy, judgment or tactics alone will not render counsel's performance deficient. (People v. Siverly (1990), 194 Ill.App.3d 981, 141 Ill.Dec. 697, 551 N.E.2d 1040.) Inasmuch as we have found that the testimony presented at trial was sufficient to establish a chain of custody, we find no error by defense counsel in failing to object. With respect to alleged deficiencies in counsel's argument to the jury, we note that the cases relied upon by defendant are inapposite. People v. Hattery (1985), 109 Ill.2d 449, 94 Ill.Dec. 514, 488 N.E.2d 513, and People v. Woods (1986), 151 Ill.App.3d 687, 104 Ill.Dec. 443, 502 N.E.2d 1103, presented situations in which defense counsel admitted his client's guilt. No such admission was made by counsel in this case and we consider counsel's decision to emphasize the more serious offense in his argument to the jury to be a matter of trial strategy. We find that defense counsel's performance was not deficient.

Defendant next contends that the prosecutor committed error in misstating the law by suggesting that constructive possession of a weapon was sufficient to prove that a person was armed. Defendant did not object, but he maintains that this was plain error. Defendant specifically refers to the following statements by the prosecutor:

"Is he armed? Well, what do we know? It's his house, it's his bedroom, he's lying in bed naked. He must feel pretty comfortable in that room, pretty safe. He has a loaded gun inches from his hands, from being able to use it. It's loaded."

We do not agree that these statements nor any other portion of the prosecutor's argument, can reasonably be characterized as a misstatement of the law. We find no error.

Finally, defendant contends, and the State agrees, that convictions for both armed violence and the underlying predicate felony cannot stand where a single act is the basis for both offenses. (See People v. Donaldson (1982), 91 Ill.2d 164, 61 Ill. Dec. 780, 435 N.E.2d 477.) Although defendant in this case was sentenced only on the armed violence charge, judgments of convictions were entered on both the armed violence charge and the underlying felony of possession of a controlled substance. We therefore vacate the defendant's conviction for possession of a controlled substance.

For the reasons stated above, we affirm the defendant's conviction for armed violence and vacate his conviction for possession of a controlled substance.

Affirmed in part and vacated in part.

HAASE and STOUDER, JJ., concur.