PEOPLE v. HOLLAND

JUSTICE MORAN delivered the opinion of the court:

Defendant, Daniel Holland, was charged by indictment with two counts of aggravated kidnapping (Ill. Rev. Stat. 1979, ch. 38, pars. 10-2(a)(3), (a)(5)); two counts of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1); two counts of deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3); one count of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2); and one count of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(1)). These charges stemmed from the sexual assault of a female suburban Cook County teenager. The indictment also charged the defendant with two counts of aggravated battery as a result of a confrontation with two police officers after his arrest (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(6)) and one count of unlawful use of weapons within five years of release from a penitentiary (Ill. Rev. Stat. 1979, ch. 38, pars. 24-1(a)(9), (b)). On defendant's motion, the court severed the counts charging aggravated battery of a police officer and the count charging unlawful use of weapons. Trial proceeded before a jury in the circuit court of Cook County on the remaining counts of the indictment.

Defendant was found not guilty of aggravated battery but was found guilty of aggravated kidnapping, rape, deviate sexual assault, and armed robbery. The court entered judgment on the verdicts and held a sentencing hearing to consider factors in aggravation and mitigation. At the conclusion of the hearing, the court found "that the offenses of rape, deviate sexual assault and aggravated kidnapping were `accompanied by exceptionally brutal [or] heinous behavior indicative of wanton cruelty.'" (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(2).) The court then sentenced the defendant to extended terms of 60 years' imprisonment for rape and deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(a)(2)) and an extended term of 30 years' imprisonment for aggravated kidnapping (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(a)(3)). These sentences were to run concurrently. As to the conviction for armed robbery, the court made a "separate and distinct" finding that the defendant's objectives changed during the course of the kidnapping from sexual gratification to armed robbery and that the sexual assault was completed before the armed robbery occurred. The court further found that this conviction was the defendant's fifth conviction for armed robbery and that society required protection from the defendant. On the basis of these findings, the court imposed a term of 25 years' imprisonment for armed robbery and ordered that it be served consecutively to the extended-term sentences already imposed. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-8-4(a), (b).) The court further ordered that "[a]ll of these sentences shall be served consecutive to any parole violations."

Defendant appealed, raising numerous errors but principally contending that an inculpatory statement made during his post-arrest interrogation by an assistant State's Attorney violated his Miranda rights ( Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602) and should have been suppressed. A divided appellate court agreed, concluding that defendant's waiver of his Miranda rights was invalid because he was not informed, prior to receiving his rights and giving an inculpatory statement, that an attorney was attempting to see him. The majority of the court also held that defendant's statement was inadmissible because it was the product of a police "subterfuge." ( 147 Ill. App.3d 323, 337-38.) We granted the State's petition for leave to appeal pursuant to Supreme Court Rule 604(a) (103 Ill.2d R. 604(a)).

The central issue presented is the validity of defendant's waiver of his Miranda rights. We also consider the following issues raised by the defendant: (1) that the State used its peremptory challenges to exclude black jurors in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712; (2) that his trial counsel was ineffective; (3) that his conviction for armed robbery was improper because the State failed to prove that he took the complainant's property by force or threat of force; (4) that imposition of an extended-term sentence for aggravated kidnapping was improper; and (5) that imposition of consecutive sentences was improper. We first summarize the facts pertinent to these issues.

Testimony presented at the hearing on defendant's motion to suppress various post-arrest incriminating statements established that the defendant was the object of a traffic stop at approximately 8 a.m. on May 4, 1980, by a Schiller Park police officer because the vehicle he was driving did not have a rear license plate. The officer ordered a check of defendant's driver's license and found that it had been revoked. While awaiting the results of the driver's license check, the officer noticed that defendant's vehicle — a dark blue Chevrolet Camaro, his clothing — blue jeans, a jean jacket, a white T-shirt bearing the word "Superscrew," and his physical appearance matched information contained in a reported abduction which occurred in Des Plaines, Illinois, at approximately 6 a.m. on May 4, 1980.

Defendant was arrested for improper vehicle registration, driving on a revoked license, and illegal transportation of alcohol. At the time of his arrest, a straight blade hunting knife was removed from his back pocket. Defendant was transported to the Schiller Park police station and, in a subsequent search, the complainant's high school identification card was found in a pocket of defendant's jacket. Also found in this search was $58.80 in currency and coins.

Schiller Park police then contacted Detective John Meese of the Des Plaines police regarding the arrest of the defendant. Detective Meese asked that the defendant be photographed and held pending further investigation. Detective Meese obtained the defendant's photograph from the Schiller Park police and presented it along with six others to the complainant. After she identified the defendant's picture as representing her assailant, Meese made arrangements to transport the defendant to the Des Plaines station. Prior to moving the defendant, Meese spoke by telephone to Anthony Rocco, who represented himself as defendant's attorney. According to Meese, Rocco asked to be notified if the defendant was to be placed in a lineup. Meese testified that he telephoned Rocco later that afternoon and left a message that the defendant would be in a lineup.

Meese transported the defendant to the Des Plaines station. Upon arriving, Meese advised him of his Miranda rights and was present during an interview conducted by Assistant State's Attorney Ira Raphaelson, accompanied by Assistant State's Attorney Howard Freedman. The interview began at approximately 2:05 p.m. on the afternoon of May 4.

Meese heard Raphaelson give the defendant his Miranda rights. About 20 minutes later, Raphaelson left the interview room, leaving the defendant and Detective Meese alone together. At this time, Meese told the defendant:

"that we had received a report from the City of Chicago in reference to a female being raped in an alley. At that time his license plate was given as to the offending vehicle, and his vehicle was described as the same type vehicle.

At that time I told him that the woman could not make a positive identification of him; however, he would have to explain why his vehicle was at that particular location."

Meese also testified that, in fact, he had not received such a report. However, Meese stated that the defendant responded by saying "he now wished to tell the truth."

Meese summoned Raphaelson and remained in the room during this second interview. He testified that he again heard Raphaelson advise defendant of his Miranda rights. During this interview, the defendant gave an oral inculpatory statement in which he admitted that he had picked up the complainant and her companion on Irving Park Road in Des Plaines; that he forced the companion from his car; that he forced the complainant to accompany him; that he forced her to perform two acts of fellatio and also raped her on two separate occasions. In addition, he admitted taking the complainant's money and her high school identification.

Meese stated that the defendant did not complain of any injuries when he arrived at the Des Plaines police station. He stated that he observed no physical or mental coercion of the defendant during the two interviews conducted by Raphaelson. Meese also indicated that the defendant acknowledged that he understood his Miranda rights and at no time requested an attorney.

Assistant State's Attorney Ira Raphaelson testified at the suppression hearing that he interviewed the defendant twice on May 4 — once at approximately 2:05 p.m. and a second time at approximately 2:30 p.m. Raphaelson stated that he began the first interview by introducing himself and telling the defendant that he represented the State and not the defendant. He then advised the defendant of his Miranda rights. According to Raphaelson, defendant indicated that he understood his rights and agreed to talk. Defendant proceeded to give a false exculpatory statement in which he said that he had picked up a teenage girl and her boyfriend who were hitchhiking and that an argument ensued whereupon he ordered the two out of his car. The defendant explained his possession of the complainant's school identification card by saying that she had dropped it on the floor of his car, where he found it and placed it in the pocket of his jacket.

Raphaelson stated that he left the interview room. The defendant and Detective Meese remained inside with the door slightly open. Raphaelson stood about 10 feet from the door. He could not see the defendant, but he could see Meese, who was talking, presumably to the defendant. At approximately 2:30 p.m., Meese called him back into the interview room. Raphaelson reentered and again advised the defendant of his Miranda rights. Defendant again indicated that he understood his rights. He proceeded to give his oral incriminating statement.

Raphaelson testified that he then left the room and spoke to defendant's attorney, Anthony Rocco. According to Raphaelson, Rocco wanted to know what charges would be filed but did not ask to be present during any interviews or interrogations. Raphaelson also stated that, while he was aware that defendant's attorney had called the Des Plaines station, he was unaware of any request to speak with the defendant prior to any interviews. At approximately 4 p.m. on May 4, Raphaelson informed Rocco of the charges against the defendant.

Defendant's wife, Patricia Holland, also testified at the suppression hearing. She stated that a Schiller Park officer notified her around 8:30 a.m. on May 4, 1980, that her husband had been arrested for several traffic violations and that she should come to the station to post bond. Later that morning, she was informed that her husband was being held for the Des Plaines police, who were preparing other charges against him. Mrs. Holland was not told what charges were contemplated.

Mrs. Holland then contacted Anthony Rocco and requested that he represent her husband. She reached Rocco around 1 p.m. on May 4. During that afternoon, she spoke to him on several occasions. During each conversation, Rocco related his unsuccessful efforts to see the defendant. Mrs. Holland further testified that she met attorney Rocco at the Des Plaines station around 3:45 p.m. Shortly thereafter, Rocco was permitted to meet with the defendant.

The defendant testified at the suppression hearing, stating that he spoke to his wife by telephone around 8:30 a.m. on May 4, 1980. He was in the custody of the Schiller Park police. He stated that he told his wife to contact attorney Rocco so that he could arrange for the defendant's release.

Defendant further testified that, while in the custody of the Schiller Park police, an officer pulled his hair. As he resisted, defendant stated, his hands were handcuffed behind him and his "arms were elevated to where [he] couldn't stand on [his] feet. [He] was knocked to the ground, kicked, hit." The defendant also stated that he was punched with a 40-inch night stick "where I would be covered with clothing." As a result, defendant stated that he lost tufts of hair, that his ribs hurt, and that his right knee became swollen. He testified that he was hit repeatedly under his chin with a billy club while his "mug shot" was taken. When he resisted, he was knocked to the floor and beaten again. Defendant received no medical treatment while at the Schiller Park station.

Defendant further testified that he was mistreated by Detective Meese of the Des Plaines police after he arrived at the Des Plaines station. According to the defendant, between the first and second interview with Assistant State's Attorney Raphaelson, he was left alone with Meese. During this time, Meese jabbed him in the ribs for about 5 to 10 minutes. Meese then said that the defendant "better start answering questions or he was going to kick my ass." Shortly thereafter, Raphaelson returned. However, defendant did not tell Raphaelson about Meese's physical mistreatment or about his verbal threat. According to the defendant, he then told them "what [he] believed [they] wanted to hear." There followed an incriminating statement in which defendant admitted that he had picked up the complainant and her boyfriend; that he forced the boyfriend out of the car; that he forced the complainant to perform two acts of fellatio; that he raped her. Defendant stated that, throughout this entire period, no one advised him of his Miranda rights.

Defendant also testified that, after his arrival at the Des Plaines station, he repeatedly asked for an attorney. Ultimately, he did see his attorney, Anthony Rocco, but not until he had given his inculpatory statement and had been placed in a lineup. When he did see his attorney, defendant told him of the physical mistreatment he had received. On May 5, defendant stated that he was taken to Cermak Hospital, where he was told that he probably had fractured ribs in the mid-chest area. Defendant was given medication for pain and told to take sitz baths for his knee.

Anthony Rocco, defendant's attorney, also testified at the suppression hearing. He testified that he first saw the defendant at 4 p.m. on May 4 and that he was limping. Rocco stated that the defendant said that he had been beaten and showed Rocco his right knee. According to Rocco, the knee was discolored. Rocco also stated that the defendant said that he had been mistreated by the Schiller Park police and by Detective Meese of the Des Plaines police.

Attorney Rocco did not testify regarding his various attempts to reach the defendant and talk to him prior to any questioning. However, during his closing argument on the motion to suppress, Rocco stated that he talked to Detective Meese by telephone around 1 p.m. on May 4 and specifically requested to talk to the defendant prior to any questioning. Rocco also argued that, sometime between 1 and 3 p.m., he made this same request of Assistant State's Attorney Raphaelson. Rocco concluded his argument by noting that he was not permitted to see the defendant until after he had given an incriminating statement and had been placed in a lineup.

At the close of testimony on defendant's motion to suppress, the court concluded "that [the] degree of physical confrontation contaminate[d] any statements defendant would have made at the Schiller Park Police Station, and accordingly any statements made relevant to this cause made by the defendant in the Schiller Park Police Station * * * are hereby suppressed, and suppressed in toto." The court also found that the defendant was given his Miranda rights by Assistant State's Attorney Raphaelson and further found that "no physical cruelty was proved to be exerted by the police department in Des Plaines." The court concluded that defendant's "will was not overborne, and he acted without any compulsion or inducement of any sort whatsoever, and he received his rights, and he acted freely and voluntarily and intelligently when he made the statements of 2:05 and 2:30."

The case against the defendant proceeded to trial. During opening arguments, the State made no mention of defendant's incriminating statement in reviewing what it expected to prove and by what evidence. However, defense counsel Rocco did refer to defendant's inculpatory statement during his opening argument.

The State's principal witness was the complainant. She testified that she and her boyfriend left a party they were attending around midnight on May 4, 1980. A short while later, they discovered that their car had a flat tire. After pulling off onto the shoulder of Irving Park Road in Des Plaines, they found that the spare tire was flat as well. They turned on the car's emergency flashing lights, but no one stopped to give assistance. After about an hour, they decided to sleep in the car and go for help in the morning. They turned off the flashing lights, turned on the parking lights, and went to sleep.

The two awoke at dawn, approximately 6 a.m., on May 4 and began walking down Irving Park Road. Almost immediately, the defendant drove up in a blue Chevrolet Camaro and offered to give them a ride. They accepted and got into defendant's car. The complainant sat in the front passenger seat while her companion sat in the back seat. After driving around awhile, the defendant grabbed the complainant around her shoulder, placed a knife to her throat, and ordered her companion out of the car. When he refused to exit, the defendant said that he would kill the complainant unless he complied. He acquiesced and the defendant drove off with the complainant.

The complainant continued, testifying that the defendant held the knife under her arm while he drove. Defendant proceeded to the parking lot of an apartment complex where he ordered her to disrobe. After undressing, she testified that the defendant pushed her head into his groin area, where his penis entered her mouth. Defendant then stated, "you're not getting it hard," whereupon he cut her on the right leg from the upper thigh to the hip.

She stated that the defendant began driving again while his penis remained in her mouth. The defendant drove to an alley on Diversey in Chicago and parked. She said that a woman saw them drive into the alley. The defendant stopped the car and forced her to straddle him and the defendant's penis entered her vagina. Defendant then ordered her out of the car and forced her to perform a second act of fellatio. Next, he told her to turn around and face the car, at which time she again felt his penis enter her vagina.

Defendant returned her clothes and told her to get dressed. He then told her to close her eyes and, when she asked why, he said, "it'll be easier that way. I'm going to knock you out." The complainant testified that she told him he could have anything he wanted, giving him her high school identification card while the defendant took her money, approximately $60. She concluded her testimony by stating that she began walking towards a grocery store and that she observed the defendant drive away in a vehicle that did not have a rear license plate.

The testimony of the victim's boyfriend corroborated the complainant's testimony about the events leading up to the abduction. He testified further that he was shown a picture of the defendant along with several other pictures and identified that of the defendant as representing the man who offered him and the complainant a ride on the morning of May 4, threatened him, and drove off with her. During his testimony, he also made an in-court identification of the defendant.

Medical testimony was presented confirming that the complainant had been cut on the right leg. There was also medical testimony confirming the presence of semen and spermatozoa in the vaginal swab taken from the complainant approximately an hour and a half after her release.

The State rested its case in chief. The defense elected not to present a case. Defense counsel, however, cross-examined all of the State's witnesses at length, establishing, among other things, that the semen and spermatozoa found in the vaginal swab could not be linked directly to the defendant nor could its age be determined; that no semen was found in the crotch of the bib overalls worn by the complainant; that no semen was found on defendant's underwear or on the jeans worn by the defendant; that the complainant's fingerprints were not found either in or on the defendant's automobile. During closing argument, defense counsel reviewed the State's case in detail. He concluded by saying, "Think of all the factors I've pointed out to you. I must have pointed out to you 20, 30 reasonable doubts in my opinion. Consider those." Defense counsel also reminded the jury that the defendant had been subject to physical force by police.

The first issue on appeal is the validity of the defendant's waiver of his privilege against self-incrimination after receiving his Miranda rights while in custody at the Des Plaines police station.

The State contends that the appellate court erred in holding defendant's waiver invalid because it was given without knowledge that an attorney was attempting to confer with him. In support of its position, the State argues that this case is controlled by Moran v. Burbine (1986), 475 U.S. 412, 89 L.Ed.2d 410, 106 S.Ct. 1135. In Burbine, a custodial suspect confessed after receiving and waiving his Miranda rights. He did so without knowledge that his sister had retained an attorney to represent him and that an associate of the attorney had been in telephone contact with the police specifically indicating that "she would act as Burbine's legal counsel in the event that the police intended to place him in a lineup or question him." While the associate was told that Burbine would not be questioned until the following day, police in fact interrogated him later that evening, securing three written statements which Burbine was unsuccessful in suppressing.

The Supreme Court concluded that a suspect's knowing and intelligent waiver of his Miranda rights does not require knowledge that an attorney has been retained or information that the attorney has been in contact with the police or has attempted to see the suspect. The Court held that "[o]nce it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the state's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law." ( Moran v. Burbine (1986), 475 U.S. 412, 422-23, 89 L.Ed.2d 410, 422, 106 S.Ct. 1135, 1142.) Since the Burbine standard was met in this case, the State urges that we apply it and hold that defendant's waiver was valid.

The defendant argues that the appellate court was correct in rejecting Burbine and following instead this court's decision in People v. Smith (1982), 93 Ill.2d 179. Initially, defendant notes that the Burbine Court expressly invited the States to adopt more stringent standards for evaluating a suspect's waiver of his Miranda rights under applicable State constitutional provisions when it stated that "[n]othing we say today disables the States from adopting different requirements for the conduct of its employees and officials as a matter of state law." ( Moran v. Burbine (1986), 475 U.S. 412, 428, 89 L.Ed.2d 410, 425, 106 S.Ct. 1135, 1145.) The defendant urges that we accept this invitation and apply Smith to find that his privilege against self-incrimination guaranteed by article I, section 10, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 10) was violated when the Des Plaines police and the assistant State's Attorney failed to inform him that an attorney had been contacted and was attempting to see him.

We decline defendant's invitation. In our view, Smith and Burbine are clearly distinguishable cases with Burbine being virtually on all fours with the instant case. Here, as in Burbine, a relative secured counsel for the suspect; the suspect was unaware that counsel had been retained; all communication between the police or prosecutors and the attorney was by telephone. Smith differs significantly from Burbine and the instant case. In Smith, the suspect actually met with an attorney after his arrest and personally retained him as counsel. Further, a partner of the retained counsel personally went to the jail where defendant was being held and asked to meet with him. She did not limit her communications to telephone conversations with the authorities or ask to be notified in the event authorities anticipated questioning her client or placing him in a lineup. Applying Burbine, we hold that the defendant was given his Miranda rights at the Des Plaines police station, that he understood the nature of those rights, and that his Miranda waiver was valid despite the fact that he was not told that an attorney wanted to confer with him prior to any interrogation or lineup.

The appellate court also held that defendant's Miranda waiver was invalid because it was secured by Detective Meese's "subterfuge." Meese told the defendant that he had received a report from the Chicago police department that his vehicle was seen in the same alley where the complainant was raped and that he would have to explain why his vehicle was there. However, no such report existed.

The State argues that this "subterfuge" does not invalidate the defendant's Miranda waiver. The State maintains that neither the Supreme Court nor this court has held that a lie, misrepresentation, or half-truth is sufficient to invalidate a Miranda waiver. Frazier v. Cupp (1969), 394 U.S. 731, 739, 22 L.Ed.2d 684, 693, 89 S.Ct. 1420, 1425 (a false statement by police that his co-defendant had confessed "is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible"); People v. Kashney (1986), 111 Ill.2d 454, 465-67 (a false statement by an assistant State's Attorney that defendant's fingerprints were found at the scene of an alleged rape is insufficient to invalidate a Miranda waiver); People v. Martin (1984), 102 Ill.2d 412, 426-27 (same).

The defendant responds by arguing that, while a misrepresentation standing alone may not invalidate a Miranda waiver, a misrepresentation which is coercive in effect will invalidate the waiver. Defendant relies on Lynumn v. Illinois (1963), 372 U.S. 528, 530-35, 9 L.Ed.2d 922, 924-27, 83 S.Ct. 917, 918-21, and Spano v. New York (1959), 360 U.S. 315, 319, 322-23, 3 L.Ed.2d 1265, 1269, 1271-72, 79 S.Ct. 1202, 1205, 1206-07. In Lynumn, the Supreme Court invalidated a confession given after police told the defendant that, if she did not cooperate, her children would be taken away and she would lose her public aid. The Court held that these statements amounted to threats and that Lynumn's confession was coerced. In Spano, the defendant, upon his arrest, telephoned a close friend who, at the time, was enrolled in a police academy. On four separate occasions, the friend's police superiors ordered him to play on the defendant's sympathy by telling the defendant "that [his] telephone call had gotten him into trouble, that his job was in jeopardy, and that loss of his job would be disastrous to his three children, his wife, and his unborn child." In fact, the friend's job was in no way placed in jeopardy by the defendant's call. On the totality of the circumstances, the Court held that the defendant's will was overborne, which rendered his confession involuntary. However, use of the defendant's friend and the friend's false statement that his job was endangered was only one of a number of factors which rendered the confession involuntary. Spano was foreign born, emotionally unstable, with no criminal history, and was subject to questioning for eight continuous hours.

Lynumn and Spano are clearly distinguishable from the case at bar and, in our view, do not control. Unlike Lynumn, Detective Meese's so-called "subterfuge" was not employed to suggest that the defendant would suffer physical, emotional, or material harm if he did not explain the presence of his automobile in the alley where the complainant was raped. Here, unlike Spano, there is no indication that the defendant lacked the capacity to understand his rights. He was questioned only briefly. Finally, Meese's statement did not threaten or imply that either the defendant or a loved one would be harmed in some way if the defendant asserted his right to remain silent rather than explain the presence of his automobile in the alley.

We also find unconvincing defendant's contentions that Meese's statement was false or misleading. It is true that Meese had not received a Chicago police report placing defendant's vehicle in the alley. However, the complainant testified that a woman saw the defendant drive into the alley where he then raped her, and the record indicates that Meese spoke to the complainant before interviewing the defendant. We hold, therefore, that defendant's waiver of his Miranda rights was unaffected by Meese's statement and is valid.

Defendant, however, advances a third argument in support of his contention that his Miranda waiver was invalid. He argues that his physical mistreatment by Schiller Park police should be imputed to the Des Plaines police and the assistant State's Attorney. Under his theory, physical coercion by one governmental entity renders involuntary any statements made to another governmental entity even though no physical force is used by the second entity. In support of this argument, defendant relies on People v. Thomlison (1948), 400 Ill. 555, 562-64, and People v. Santucci (1940), 374 Ill. 395, 398-401. In Thomlison, the defendant confessed to Alton, Illinois, police the day after being "brutally assaulted" by members of the same police force. In Santucci, the defendant confessed to Chicago police three days after being "severely beaten" by members of the Chicago police force in an unrelated incident. In both cases, this court held that the confessions were involuntary because the physical coercion of the first encounter carried over to and tainted the encounter which produced the confessions. Since the circuit court, in the instant case, suppressed defendant's statements made to the Schiller Park police because it found that there had been some type of "physical confrontation" while the defendant was in their custody, defendant concludes, on the authority of Thomlison and Santucci, that the "physical confrontation" tainted the interrogation by the Des Plaines police and the assistant State's Attorney which resulted in his oral incriminating statement. We do not agree.

Our review of the record indicates that there was no affirmative showing that the defendant was beaten by Schiller Park police. The defendant, testifying during the suppression hearing, claimed that he was beaten. However, two counts of the indictment against the defendant were for aggravated battery of two Schiller Park officers. At the conclusion of the suppression hearing, the court did not find that the defendant had been beaten but, rather, that there had been some sort of "physical confrontation." The court gave the defendant the benefit of any doubt and suppressed all statements made while in the custody of the Schiller Park police. However, in the absence of an affirmative finding of physical coercion by the Schiller Park police, there can be no coercion available to infect either the interrogation of Detective Meese of the Des Plaines police or the interrogation of Assistant State's Attorney Raphaelson.

The "physical confrontation" between the defendant and the Schiller Park police had no bearing on the events which transpired between the defendant and the Des Plaines police or the assistant State's Attorney. Accordingly, we conclude that the statement made by the defendant to the assistant State's Attorney while in the custody of the Des Plaines police was not coerced.

Defendant presses two other arguments in support of the appellate court's decision reversing his conviction. First, he contends that the State used its peremptory challenges to excuse two black prospective jurors solely on the basis of their race in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712.

We decline to address this issue because we find that the defendant, a Caucasian, does not have standing to assert a Batson violation. Under Batson, the defendant challenging the exclusion of prospective jurors because of their race must show "that members of his race have been impermissibly excluded." (Emphasis added.) ( 476 U.S. 79, 93, 90 L.Ed.2d 69, 85-86, 106 S.Ct. 1712, 1721.) Since defendant is white and the excluded prospective jurors are black, he is unable to show that members of his race have been excluded impermissibly. Thus, he is unable to establish the threshold element of a prima facie Batson violation.

Defendant argues, in the alternative, that the exclusion of the only two black prospective jurors in the jury array violated his sixth amendment right to trial by a jury representing a fair cross-section of the community. Neither this court ( People v. Gaines (1984), 105 Ill.2d 79, 88; People v. Williams (1983), 97 Ill.2d 252, 278-80) nor the Supreme Court ( Batson v. Kentucky (1986), 476 U.S. 79, 84-85 n. 4, 90 L.Ed.2d 69, 79 n. 4, 106 S.Ct. 1712, 1716 n. 4) have so held. We decline to overrule this court's prior holdings by finding that the peremptory exclusion of blacks or other minorities violates the fair cross-section requirement.

Defendant next argues that he received ineffective assistance of counsel at trial and urges this ground as an alternative basis for affirming the reversal of his conviction. According to the defendant, the State had decided not to use his inculpatory statement as part of its case in chief. However, the State reversed its position and placed the statement into evidence after defense counsel specifically mentioned the defendant's statement in opening argument before the jury. The defendant claims that this is an example of his counsel's ineffectiveness. The defendant also claims that cross-examination by counsel was often "irrelevant," "suggestive," "misleading," and "improper," forcing the trial court into frequent off-the-record admonitions. Defendant maintains that this conduct is indicative of incompetence.

To prevail on a claim that trial counsel was ineffective a defendant must show that counsel's performance fell "outside the wide range of professionally competent assistance" and "but for counsel's [incompetence], the result of the proceeding would have been different." Strickland v. Washington (1984), 466 U.S. 668, 690, 694, 80 L.Ed.2d 674, 690, 698, 104 S.Ct. 2052, 2066, 2068; People v. Collins (1985), 106 Ill.2d 237, 273-74; People v. Albanese (1984), 104 Ill.2d 504, 525-27.

Our reading of the record leads to the conclusion that the defendant has failed to sustain his burden on either prong of the Strickland test. As to the competence of defendant's trial counsel, we note that he succeeded in severing three counts of the indictment against the defendant. Trial counsel also succeeded in suppressing defendant's statements made to the Schiller Park police and was vigorous, if unsuccessful, in his efforts to suppress the incriminating statement given to the assistant State's Attorney at the Des Plaines station. Counsel's defense was effective enough to win a verdict of not guilty on the charge of aggravated battery of the victim.

Counsel was effective in creating a record which provided several grounds on which to challenge on appeal the validity of defendant's Miranda waiver. During selection of the jury, counsel challenged the State's use of its peremptory challenges to exclude black prospective jurors.

The record also reveals that counsel was vigorous in his cross-examination of witnesses with the apparent purpose of raising reasonable doubt in the minds of the jurors. For example, counsel brought out the fact that the complainant's fingerprints were not found either in or on the defendant's automobile. He also established that there was no semen found on defendant's underwear or other clothing and that the semen found on the complainant's clothing and in her vaginal swab could not be linked positively to the defendant. Finally, in closing argument, counsel stressed the inconsistencies he had developed during cross-examination, arguing that each one raised a reasonable doubt and that each one would support a verdict of not guilty on all counts.

The record establishes that counsel was active in his defense both in pretrial proceedings and during trial. On the totality of this record, the fact that he was first to raise defendant's inculpatory statement pales into insignificance. Further, even if we were to conclude that the reference to defendant's inculpatory statement was incompetent, it would remain incumbent upon the defendant to show that, but for that error, he would have been found not guilty. In view of the accurate and unwavering in-court and out-of-court identifications of the defendant by the complainant and her companion, we believe that there was ample evidence adduced to find the defendant guilty beyond a reasonable doubt. Therefore, even if it was error to raise the existence of defendant's incriminating statement, it cannot be deemed prejudicial on this record. We conclude that the defendant has not established that he received ineffective assistance of counsel.

Defendant also challenges his conviction for armed robbery affirmed by the appellate court. He contends that the State failed to prove that he took the complainant's school identification and money by force or threat of force, an essential element of the offense of armed robbery. After a thorough review of the record on this issue, we find ample support for defendant's armed robbery conviction.

The complainant testified that, after the final sexual assault, the defendant returned her clothing and told her to get dressed. After she did so, the defendant told her to close her eyes and, when she asked why, replied, "it'll be easier that way. I'm going to knock you out." To avoid further physical attack, she offered the defendant "anything he wanted." She then handed over her identification and the defendant took her money. Throughout this exchange, the defendant remained armed with the hunting knife he had displayed during the entire course of his sexual attacks on the complainant.

It is clear from the complainant's uncontradicted and unimpeached testimony that she parted with her property in order to avoid being a victim of yet another act of violence. Under these circumstances, the State proved beyond a reasonable doubt that the property of another was taken by force or threat of force. ( People v. Tiller (1982), 94 Ill.2d 303, 316.) We, therefore, affirm defendant's conviction for armed robbery.

Defendant's final two issues concern sentencing. He first contends that the circuit court erred in imposing an extended-term sentence on the conviction of aggravated kidnapping because it is not an offense of "the class of the most serious offense of which the offender was convicted." (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(a).) He contends that aggravated kidnapping is a Class 1 felony while rape and deviate sexual assault are Class X felonies. He concludes that, under the extended-term sentencing provision, only the convictions for rape and deviate sexual assault can provide the basis for extended-term sentences.

The State concedes that the extended-term sentence for aggravated kidnapping was improper. Therefore, on the authority of People v. Jordan (1984), 103 Ill.2d 192, 204-07, and People v. Evans (1981), 87 Ill.2d 77, 87, we vacate defendant's sentence for aggravated kidnapping.

Defendant's final challenge is directed at the imposition of a consecutive sentence on the armed robbery conviction as well as the court's order that all sentences for the instant convictions were to be served consecutively to "any parole violations." We first consider the propriety of a consecutive sentence for the armed robbery conviction.

Section 5-8-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-8-4(a), (b)) provides that a consecutive sentence may be imposed where the court finds: (1) that the offense receiving the consecutive sentence was substantially different from the other offenses for which the defendant was sentenced, and (2) that imposition of a consecutive sentence is necessary to "protect the public from further criminal conduct by the defendant."

The record reveals that the circuit court expressly found that the defendant's objective changed during the course of the kidnapping. The court also found that the initial motivation for the kidnapping was sexual gratification and further found that the sexual assault was completed at the time the defendant robbed the victim. The court then referred to the defendant's prior convictions for four armed robberies and concluded that society required protection from the defendant's future criminality. The court then ordered that the sentence for armed robbery be served consecutively to the concurrent sentences imposed for rape, deviate sexual assault, and aggravated kidnapping.

A consecutive sentence imposed pursuant to applicable law and supported by the record will not be disturbed on review. ( People v. Steppan (1985), 105 Ill.2d 310, 323.) We believe that the court had ample grounds to impose a consecutive sentence for the armed robbery conviction.

It is manifest beyond peradventure that, at the time of the armed robbery, the sexual assault of the complainant had terminated and that the defendant was preparing to release her. The complainant testified that the defendant had returned her clothes and that she was dressed when the defendant threatened to "knock her out," subsequently taking her identification and money. After taking possession of this property, the defendant allowed her to leave and, while leaving, she saw him drive away.

It is also clear that society requires protection from the defendant. He committed a traumatic series of sexual assaults over the course of two hours upon a teenage girl, threatened to kill her throughout the ordeal, and threatened to kill her if she reported the incident to the police. These events occurred while the defendant was on parole on four convictions for armed robbery, the same offense committed here. Thus, there is more than adequate support for the court's order that the sentence for armed robbery be served consecutively, and we affirm this order.

Defendant's second sentencing challenge is to the court's order that all sentences imposed in the instant case were to be served consecutively to "any parole violations." He contends that a sentence consecutive to "any parole violations" is insufficiently specific and that remand for resentencing is required.

The State argues that the court meant to order that the sentences in the instant case were to be served consecutively to defendant's reconfinement for violation of parole on his prior armed robbery convictions. According to the State, the record shows the case numbers of the prior convictions in addition to a presentence report containing a notation of these convictions along with a narrative indication that a warrant for parole violation had issued, with the Prisoner Review Board preparing to take action at a later date.

This court has affirmed imposition of sentences consecutive to an unrelated prior sentence where the completion of the prior sentence and the beginning of the later sentence can be ascertained from the record. ( People v. Toomer (1958), 14 Ill.2d 385, 387.) We agree with the State that the necessary certainty can be derived from this record and, therefore, affirm the order that the sentences in the instant case are to be served consecutively to any remaining portion of the defendant's sentence for the four prior armed robbery convictions.

For the reasons stated herein, we reverse the judgment of the appellate court. We affirm defendant's convictions and all sentences with the exception of the extended-term sentence for aggravated kidnapping, which is vacated. The cause is remanded to the circuit court of Cook County for resentencing on the aggravated kidnapping conviction.

Appellate court reversed; convictions affirmed; cause remanded.

JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.