People v. Ward (154 Ill. 2d 272, 1992)

JUSTICE MORAN

delivered the opinion of the court:

Following a jury trial in Cook County, defendant, Jerry Ward, was found guilty of the murder of Bruce Herd and Herd’s girlfriend, Pamela Williams (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)), the armed robbery of Bruce Herd (Ill. Rev. Stat. 1983, ch. 38, par. 18 — 2(a)), and possession of a stolen motor vehicle (Ill. Rev. Stat. 1983, ch. 95½, par. 4 — 103(a)(1)). After the verdict was rendered, the court found the defendant eligible for the death penalty, since he was over the age of 18 at the time the offenses were committed, he committed two murders, and they were committed in the course of an armed robbery. After finding that there were insufficient mitigating factors to preclude the imposition of the death penalty, the defendant was sentenced to death, as well as to a 30-year term of imprisonment for the armed robbery, and three years’ imprisonment for possession of a stolen motor vehicle. The death sentence was stayed (134 Ill. 2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603).

Concerning the guilt phase of the trial, defendant raises as issues whether: (1) the trial court erred in admitting into evidence a pair of undershorts alleged to be defendant’s; (2) the court improperly admitted a police officer’s testimony that brain matter was present on defendant’s face and clothing; (3) the defendant was denied due process when the tissue matter on defendant was not preserved; (4) defendant was denied a fair and impartial trial by the prosecution's references to Williams and her family; (5) the admission of testimony that defendant was unemployed was prejudicial error; (6) the trial court abused its discretion in replacing an ill juror; (7) defendant was denied his right to present a defense when the court refused to grant a further continuance to locate defense witnesses; (8) defendant’s statement regarding the offense of possession of a stolen motor vehicle should have been admitted under the completion doctrine; (9) defendant’s statement regarding the offense of possession of a stolen motor vehicle should have been admitted as a declaration against penal interest; (10) the evidence was sufficient to prove that he committed two murders beyond a reasonable doubt; (11) defendant was denied effective assistance of counsel; (12) the prosecution made improper remarks during its closing argument; and (13) defendant’s conviction for armed robbery should be vacated due to insufficient evidence.

Pertaining to his sentencing hearing, defendant raises as issues whether: (1) the State failed to prove that the offense of murder was committed in the course of an armed robbery; (2) defendant’s prison record was improperly admitted and considered as an aggravating factor; (3) defendant should receive a new sentencing hearing since the court decided that death should be imposed because he would be a danger in prison; (4) the court denied defendant a fair death penalty hearing in allowing evidence of an unsubstantiated rape charge; (5) the judge failed to properly consider mitigating evidence concern: ing defendant’s tragic family life; (6) the judge failed to consider defendant’s criminal history as a mitigating factor; (7) the judge erroneously considered in aggravation the fact that Bruce Herd was immobilized and then executed, that Williams did not resist but was executed, and that defendant intended to kill; (8) the imposition of a death sentence in this case was excessive and inappropriate; and (9) the introduction of testimony that defendant was a member of a gang at the sentencing hearing violated his constitutional right to free association.

Concerning the constitutionality of the Illinois death penalty statute, the defendant raises as issues whether: (1) the statute places a burden of proof on the defendant, precluding meaningful consideration of mitigation; and (2) the statute is unconstitutional because it does not sufficiently minimize the risk of arbitrarily or capriciously imposed death sentences.

The relevant facts are as follows. On February 15, 1986, in Chicago, the defendant allegedly shot Herd to death, beat Pamela Williams to death, and contemporaneously committed armed robbery by taking Herd’s automobile. The evidence utilized by the State in the prosecution of defendant was primarily circumstantial, and was introduced through the testimony of numerous individuals. Where necessary, additional relevant facts will be discussed as each individual issue is discussed in depth.

Clara Herd Johnson testified that on February 15, 1986, her brother, Bruce Herd, came to her house between 6:30 and 7:30 p.m. with his cousin Larry. After about 10 minutes, Herd left her house with the keys to her 1977 Buick. Gerald Williams and Charles Williams testified that at some time between 7 and 8 p.m. Herd arrived at the apartment of his girlfriend, Pamela Williams, at 3910 W. Lexington. They remained at the - apartment for a short time, then left saying they were going to the liquor store.

Curtis Rollins, who lived at 3837 W. Fillmore, testified that he was lying in bed sleeping on the night of the 15th when at about 9:20 p.m. he heard two gunshots. He looked out the window but could not see anything because a garage blocked his view. He also stated that at about 11 p.m. he went to the store and on his return he saw a body, which turned out to be Williams’, lying in front of a garage in the alley.

Police officers Joseph Scardino, James Peck and James Summerville testified that they responded to a call of a man being dumped from a car. They went to the rear of 914 S. Independence between 9:30 and 9:35 p.m. At that location they saw a black male lying in the snow, with a gunshot wound to his skull, later identified as Bruce Herd.

Officer Scardino left the scene accompanied by his partner, Officer Prendkowski, and they drove around the area when he heard a description of the “suspect vehicle” as a gray Oldsmobile with the left rear bumper protruding from the car. While driving north on Springfield he saw a gray car traveling in the opposite direction. Scardino slowed down as the gray car drove through the intersection, and at this time, Scardino noticed that the car fit the description. After seeing the squad car, the driver sped away. Scardino then made a U-turn and followed the car south on Springfield and into an eastbound alley. At about 917 S. Springfield the car struck a building. Scardino stopped the squad car behind the gray vehicle as its tires were spinning on a patch of ice in an attempt to pull off. Scardino approached the car on the passenger side while Prendkowski approached on the driver’s side. Defendant, who was driving the car, had his hands in the air, and as Prendkowski opened the driver’s door, defendant reached into his waistband with his right hand and flipped a gun onto the front seat; he then raised his hands back into the air. Prendkowski pulled the driver out of the car and Scardino went around to assist in the arrest. The officers recovered a Smith and Wesson .38-caliber revolver, with two spent cartridges, from the front seat. Scardino testified that he saw a “red substance in the form of dots” as well as “white fleshy material or matter” on the car and on defendant’s face and clothes. Then, over defense objection, he added that, based on his past experience, he believed the fleshy material to be brain matter.

Officers Peck and Summerville, responding to the call, arrived at 914 S. Springfield shortly after defendant had been handcuffed. Peck and Summerville stated that they also saw a red substance on defendant’s face and on the front of his clothing along with “white flesh.” They saw the same red substance and “white flesh” on the trunk and right rear quarter panel of the car. Defendant was arrested at about 9:50 p.m. and then was transported to the station, but no attempt was made by the police to preserve the “white fleshy matter.”

Officer Hernandez testified that, at about 10:35 p.m. he went to the alley at 3824 W. Grenshaw where he saw a woman, later identified as Pam Williams, lying in the snow, with her head “bashed in.” A tire jack and hat were also lying in the snow near the body.

After police evidence technician Frank DeMarco collected all of the physical evidence in this case, Pamela Fish, a serologist for the crime lab, did an analysis of the blood samples submitted. She examined defendant’s clothing, as well as samples from the tire jack, the garage door, and the car trunk lid and right fender. All of the bloodstains were found to be consistent with the blood of Williams, but inconsistent with Herd’s and defendant’s blood.

Kathleen Galagan, a chemist in the crime lab, performed the gunshot residue analysis and determined that swabs taken from defendant’s hands were consistent with his having recently discharged a handgun.

Edmond Donaghue, the deputy medical examiner, performed the autopsy on both Herd and Williams. When he examined Herd, he recovered a lead bullet from the front of his neck. He determined that the cause of death was a gunshot wound to the back of the head. The examination of Williams revealed 46 external injuries and 11 internal injuries. The external injuries were to the back of the head, the face, neck, and upper back areas. The cause of death was multiple injuries due to beating. Her injuries were such that brain matter would have been emitted.

James Gainer, a police officer and firearm expert, examined the gun and casings. He was unable to conclusively determine that the recovered bullet had been fired from the gun taken from defendant. However, Gainer was able to conclude that the bullet had been fired from a Smith and Wesson .38, the type of gun recovered from the defendant.

Theatrice Patterson, a latent print examiner, analyzed the prints taken from the exterior of the car and its contents. He determined that a print recovered from the exterior passenger window and from one of the plastic cups was made by defendant. One print recovered from a 7-Up can belonged to Williams and a print from a plastic cup and another from the 7-Up can belonged to Herd. There were no prints recovered from the gun or the tire iron.

After the State rested, the defense’s motion for a directed verdict on the armed jobbery was denied. Detective Warren Gavin was then called by the defense and he stated that he had interviewed Curtis Rollins on February 17, 1986, and that Rollins did not tell him that he had heard two shots fired at 9:20 p.m. on February 15th.

Defense counsel attempted to introduce defendant’s statement made to police explaining how he had acquired the car, but the judge ruled such evidence not admissible. In his statement, the defendant indicated that he came upon the car, while it was running, with a gun on its seat, at the corner of Lexington and Springfield; that he got in on the passenger side, slid over and drove away.

Defense counsel then asked for a continuance to locate further witnesses. These witnesses would have allegedly testified as to defendant’s presence elsewhere, and to the fact that they saw two black men remove the body of another black man from the car and drive away. The court granted a recess to locate the witnesses; however, they were able to locate only one witness, Jedd Davis, during the time allowed them. Consequently, defendant chose not to have Davis testify, but instead rested his case.

After the defense’s motion for a mistrial based upon the State’s closing argument, which the court denied, the case went to the jury. After deliberating, it returned guilty verdicts on the murder, armed robbery and possession of a stolen motor vehicle charges. Defendant waived his right to a jury for sentencing.

During the first stage of the sentencing hearing, the court found the defendant qualified for the death penalty because he was over the age of 18 at the time the offenses were committed, and because he had committed two murders during the course of an armed robbery.

During the second stage of the sentencing hearing, the State presented evidence in aggravation, while the defense presented mitigating evidence. The court found that there was no evidence of a struggle by the victims, which made the killings appear to be executions. The court further concluded that defendant’s prior felony convictions indicated a propensity for violence. Moreover, the judge considered defendant to be a disciplinary problem in prison, having been found once with a knife while in the county jail, and on three separate occasions while in the Department of Corrections. The judge stated that he believed defendant is unable to assimilate into any society, citing specific incidents defendant had with guards in prison. In mitigation, defendant’s brother and uncle testified that his conduct was the result of striking back at society for the death of his mother and brother. After considering all of the evidence, the court found that death was an appropriate sentence for the defendant, and that there were no mitigating factors sufficient to preclude it. The judge also sentenced defendant to 30 years’ imprisonment for the armed robbery and three years’ for possession of a stolen motor vehicle. The court later denied a motion for a new sentencing hearing.

TRIAL ISSUES

Defendant alleges that there were numerous errors committed by the court during his trial. First, he contends that the court erred when a State witness was allowed to testify as to the results of an analysis performed on a pair of defendant’s bloodstained undershorts, which were later admitted into evidence, even though there was no foundation for such testimony because no witness identified them as belonging to the defendant.

It is the State’s position that defendant has waived review of this issue, since he did not object to the testimony, or to the admission of the undershorts at trial, nor did he include this issue in his motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) To properly preserve an issue for review, “[b]oth a trial objection and a written post-trial motion raising the issue are required.” (Emphasis in original.) (Enoch, 122 Ill. 2d at 186.) Failure to do so operates as a waiver of the right to raise the issue on review. (People v. Herrett (1990), 137 Ill. 2d 195, 209.) There is no indication that defendant could not have objected to the introduction of this evidence at trial if he truly believed there to be a lack of foundation and that the evidence was unduly prejudicial to him.

Notwithstanding his failure to raise an objection at trial, the defendant responds that, due to the nature of the harm inflicted upon him by this evidence, this court should review this issue as plain error under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). The plain error doctrine may be invoked in criminal cases to review an error which has not been properly preserved for review (1) where the evidence is closely balanced, or (2) where the error is of such magnitude that the defendant was denied a fair trial. (People v. Carlson (1980), 79 Ill. 2d 564, 576-77.) The plain error rule guards against the “possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved.” Carlson, 79 Ill. 2d at 576.

Defendant, relying upon People v. Rogers (1976), 42 Ill. App. 3d 499, contends that the second prong of the plain error rule has been satisfied here, since admitting this evidence without a proper foundation was so prejudicial that it deprived him of a fair trial. However, Rogers does not focus on the concept of plain error, which is at issue here. Furthermore, the court in Rogers held that the lack of a foundation constituted reversible error primarily because of certain prosecutorial comments which magnified the error by stressing the importance of the contested evidence. In the case at hand, there is no evidence that the State stressed the importance of the undershorts over that of the bloodstained pants and jacket.

In the case at bar, the serologist, Pamela Fish, examined what was represented to her as defendant’s jacket, pants, and undershorts. She testified as to each article, concluding that the bloodstains on each were consistent only with Williams’, but not defendant’s or Herd’s, blood type. Consequently, although the undershorts provide relevant evidence, their individual significance is greatly diminished because the jacket and pants worn by defendant (the admission of which is not challenged), on the night of the alleged murder, provide substantially similar evidence.

Further, there was a stipulation between the parties, which provided that if Detective Sherry were to be called as a witness, he would testify that People’s Exhibit No. 27 was “the undershorts that defendant was wearing at the time.” It was further stipulated that he delivered defendant’s undershorts to crime lab technician DeMarco for analysis. Although DeMarco’s testimony conflicted with the stipulation, any contradiction simply goes to the weight of the testimony.

As a result of the stipulation by defendant’s attorney, as well as the other noncontested substantially identical evidence, we do not believe that the testimony regarding, and the admission of, the undershorts deprived the defendant of a fair trial. We conclude that this is not an appropriate case for application of the plain error rule.

Defendant’s next allegation of error is that Officer Scardino was improperly allowed to testify that when Jerry Ward was arrested he had brain matter on his face and clothing. Defendant contends that this testimony should not have been allowed since the State did not establish that the officer was qualified as an expert in determining the presence of brain matter.

Although there were numerous references made to “white fleshy material or matter” on defendant’s face, clothing and car (none of which is now contested), there appears to be only a single reference to the substance in question as “brain matter,” as evidenced by the following excerpt:

“Q. [Assistant State’s Attorney Brogan]: Just to make one thing clear, you have testified that the defendant had what appeared to you to be blood and also this fleshy material, is that correct?

A. [Detective Scardino]: That is correct.

Q. Did you testify that it appeared that you saw that on the face of the defendant?

A. When we were at the vehicle, I saw what I believed to be — there were red splatter marks on his face and on his body, on his throat, clothing in the front. I believed it to be blood, yes.

Q. Had you ever seen anything like that white fleshy material before in your duties as a Chicago Police officer?

A. When someone is shot in the head and their brain matter was splattered on the wall in the adjacent area, it looked quite like that.

MR. SMITH: Objection.

THE COURT: I will sustain the objection to that description. It’s stricken from the record. The [jury] is asked to disregard it.”

It is clear that nonexperts may testify to the nature of substances observed by them with which they are familiar, and that testimony is not limited to a statement of the detailed characteristics observed, but may take the form of a conclusion as to what the substance was. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §701.5, at 488-89 (5th ed. 1990).) Here, the witness testified that he was familiar with brain matter from his prior experience, and, based on his prior experience, he concluded that the white fleshy matter looked like it. He did not give an “expert opinion” as to the nature of the tissue, nor at any time did the State proffer Scardino as an expert. As a result, this was entirely proper testimony.

Most importantly, and regardless of the propriety of the contested testimony, it is a fact that the defendant successfully objected to Detective Scardino’s reference to brain matter. After the judge sustained the objection, he then immediately admonished the jury to disregard that comment. Further, the jury was instructed under Illinois Pattern Jury Instructions, Criminal, No. 1.01 (2d ed. 1981) to disregard any testimony to which an objection had been sustained, or that it had been admonished to disregard. Although the prejudicial effect of improper testimony cannot always be erased from the minds of the jurors by an admonishment from the court, the act of promptly sustaining the objection and instructing the jury to disregard such statement has usually been viewed as sufficient to cure any prejudice. (Carlson, 79 Ill. 2d at 577; People v. Baptist (1979), 76 Ill. 2d 19, 30.) We do not find any reason to suppose that the court’s rulings were ineffective in this case. Thus, as a result of the precautions taken by the judge, any possible error was negated.

Defendant next contends that the court erred by allowing the police officers to testify about seeing the brain matter on defendant since they failed to preserve that evidence. He argues that the police could have preserved the evidence by either taking photographs of him or by taking samples from his face or clothing. According to the defendant, the failure of the police to do so denied him his right to have access to material evidence, and as a result, he claims that he was deprived of his constitutional right to due process and a fair trial.

Commencing with Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, there has been a succession of United States Supreme Court cases dealing with a defendant’s constitutionally guaranteed right of access to evidence. Initially, in Brady, the Court held that in a State criminal case, the prosecution’s suppression of material evidence favorable to, and requested by, the defendant, violates the due process clause of the fourteenth amendment, irrespective of the good faith or bad faith of the prosecution. (Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97.) Subsequently, in United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392, the Court expanded Brady, holding that the prosecution had a duty to voluntarily disclose any exculpatory evidence that creates a reasonable doubt about defendant’s guilt. The next significant case in this area was California v. Trombetta (1984), 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528, wherein the Court limited the State’s duty to preserve evidence to that which might be expected to play a significant role in the suspect’s defense. Finally, in Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333, the Court further limited the State’s obligation by holding that unless the criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.

In Youngblood, the Court indicated that it did not want to impose “on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution. We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it ***.” Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.

In this case, the police’s failure to preserve the “white fleshy matter” can at worst be described as negligent. There was nothing offered by the defendant, other than mere speculation, evidencing bad faith on the part of the police. At the time of defendant’s arrest, Williams’ body (from whom the brain matter apparently originated) had not yet been found. Only Herd’s, who had been shot once at the base of the skull, had been recovered. However, no brain matter was found either on his body or where his body had been dumped. Consequently, the officers had no known tissue with which to compare the tissue which was found on defendant and the car. Consequently, no due process violation occurred because there was no evidence presented which demonstrated bad faith on the part of the police.

The defendant next argues that he was denied a fair and impartial trial as a result of the prosecution’s introduction into evidence of irrelevant and prejudicial factors concerning Williams and her family. Defendant specifically points to the testimony of Williams’ father and brother, as support for his allegation.

Williams’ father, Gerald, testified that his daughter was 25 years old at the time of her death; that she worked part-time; that she had dated Herd for approximately two years; that she had two children; that she lived with her parents and their other children; that on February 15, 1986, she was preparing a special dinner for Gerald’s birthday party which was to be held the next day; and that when Herd came over that evening, at about 8 p.m., she went with him to the store to purchase some beer for his birthday.

After the State had called Gerald Williams to testify as a life and death witness, Pam’s brother, Charles Williams, was called as a "witness. He testified that he saw his sister on that same day in his parents’ apartment, and that they were preparing to celebrate their father’s birthday. He stated that he had let Herd into the apartment some time after 7 p.m., and that Herd and his sister went to the store to get Gerald some beer for his birthday.

The defendant points out that the State then elicited the following prejudicial testimony from Charles:

“Q. [Assistant State’s Attorney Schultz]: Did you leave the apartment at some time?

A. [Charles Williams]: I left the apartment about 11:30.

Q. And after leaveing [sic] the apartment did you then at some point come back to the apartment?

A. Yes, after I was called and told my sister was dead.

Q. When did you receive that phone call?

A. About a quarter to 2:00.

Q. What did you do when you got the phone call?

A. When I got the phone call, I questioned my brother in law [sic].

Q. He is the person that called?

A. Yes, Then [sic] I hung up.

Q. Then what did you do?

A. Then I sat on the bedside for awhile and I called back to make sure. And I questioned him again.

Q. What did you do after you have digested that had [sic] information?

A. Then I informed my wife.

Q. At some point did you leave the apartment?

A. About 40 minutes lateer [sic].

Q. Where did you go?

A. I went on up Madison and Racine and told one of my friends.

Q. Did you have a chance to see Pamela again at some point?

A. Yes, down at the corner.

Q. At that time was she dead?

A. Yes, she was dead.”

The defendant contends that there was no legitimate reason to call the brother as a witness since the father had already testified as a life and death witness. He argues that the only purpose served by the victim’s brother’s testimony was to make the jury aware that Williams had family members who were affected by her death. As correctly pointed out by the defendant, “[t]his court has previously condemned prosecutorial efforts to present otherwise irrelevant information about a crime victim’s personal traits or familial relationships as material evidence in a criminal case.” (People v. Jimerson (1989), 127 Ill. 2d 12, 41; accord People v. Hope (1986), 116 Ill. 2d 265, 275.) In Hope, however, the court emphasized that every mention of the decedent’s family does not per se entitle the defendant to a new trial. Rather, the court must consider the manner in which the references to the murder victim’s family came about. Hope, 116 Ill. 2d at 276-78.

The facts here are very similar to those in Jimerson, 127 Ill. 2d 12. As in Jimerson, the defendant failed to object to this testimony at trial and he failed to raise this point in his motion for a new trial. Consequently, defendant has waived this issue for review. Enoch, 122 Ill. 2d 176.

Furthermore, we do not believe that the admission of this testimony constitutes plain error. Applying the two-prong test referred to previously in Carlson, 79 III. 2d at 576-77, we first conclude that the evidence is not closely balanced. Defendant was arrested after a police chase, in the victim’s car. This occurred very shortly after two gunshot sounds were heard and Herd’s body was discovered. He had white fleshy matter and blood on his face and clothing. The blood makeup was consistent with Williams’ blood. The arresting officer saw defendant remove a .38 Smith and Wesson gun from his waistband, which had two spent cartridges and bullets which were “non-factory.” Gun residue tests proved that defendant had recently fired a gun. The bullet recovered from Herd was a “non-factory” bullet fired from a gun with characteristics consistent with the gun recovered from the defendant. Witnesses identified the car defendant was driving as the one that “dumped” Herd’s body shortly before defendant’s arrest. Additionally, the second prong of the plain error test was not satisfied, as any error here is not of such a magnitude as to deprive defendant of a fair trial.

In Jimerson, the bulk of the information complained of was relevant and admissible, or else was elicited from the witnesses in an incidental, nonprejudicial manner. That was also the situation here, as the alleged improper testimony consumed a very insignificant portion of the many hours of argument and testimony during the trial. At no time during the guilt phase of the trial did the prosecution dwell upon the victim’s family’s relationship with her, their reaction to her murder, or its lasting effect upon them.

Some reference to the victim’s family during the trial was necessary and inevitable to explain the circumstances of the crime. (See People v. Hayes (1990), 139 Ill. 2d 89, 142.) Much of the testimony in question here merely provided background factual information, and set the stage for the period leading up to the alleged murders. Much of Charles’ testimony as to how he discovered his sister’s death appears to have been volunteered by him, and was elicited incidentally, as the prosecutor was apparently attempting to obtain testimony that he identified Pam’s body at the scene. We do not discern here a calculated effort by the prosecution to present this information or material as evidence bearing on defendant’s guilt or innocence. (See People v. Free (1983), 94 Ill. 2d 378, 413-15.) Therefore, we hold that the references to the victim’s familial relationships were not so prejudicial as to deprive the defendant of a fair trial.

Defendant next contends that reversible error occurred when a witness testified-that defendant was unemployed. Officer Scardino testified to the following conversation he had with the defendant at the police station:

“Q. [Assistant State’s Attorney Brogan]: Approximately [at] what time did you have that conversation?

A. [Officer Scardino]: I would say somewhere around, maybe, 10:15.

Q. Did you have occasion to ask the defendant his address?

A. Yes, sir.

Q. And what did he reply?

A. He told me that he resided at 105 South Ashland in the City of Chicago, County of Cook.

Q. And did you have occasion to ask the defendant whether or not he was employed?

A. Yes, sir. And he stated to me that he was not employed.”

Defendant argues that by establishing that he did not live in the neighborhood and that he had no job, the State was allowed to imply to the jury that the defendant came into the neighborhood to make money the only way he could, by robbing and killing people. He further alleges that this evidence had no tendency to prove the offenses, but only served to cause the jury to believe that he was a bad person and hence likely to be guilty of the charged offenses.

Defendant again failed to object at trial to this testimony and he failed to raise this issue in his motion for a new trial. Consequently, defendant has not preserved this issue for review. (Enoch, 122 Ill. 2d 176.) Nevertheless, defendant argues that the admission of this particular evidence constituted plain error because it substantially affected his right to a fair trial. We disagree.

While defendant contends that the fact of his unemployment was used to imply that he was guilty, the State submits that his unemployed status, coupled with the location of his residence, was elicited only to challenge any potential evidence that defendant’s presence in the area could be accounted for. However, this testimony could realistically lead one to either of the two conclusions put forth by the parties. This line of questioning was isolated and very brief, was not closely related to other surrounding testimony, and there was nothing said during the State’s closing argument which associated his unemployment status with the propensity to commit these crimes. Consequently, we find that the defendant was not so prejudiced by the admission of this testimony as to deny him a fair trial; therefore, this alleged error does not amount to plain error.

Defendant next maintains that the court’s refusal to grant a continuance when one of the jurors became ill was an abuse of discretion that denied him a fair trial and due process. On the third day of trial and the second day of testimony, juror Vercie Williamson became ill. Defense counsel asked that the court adjourn for the day to allow Williamson a chance to recover and return the . next day, since the defendant indicated that he was not happy with the selection of the first alternate juror. The State then indicated that it would agree to switch the order of the alternates so that the second alternate would replace Williamson. The court dismissed Williamson, and defense counsel’s motion for a mistrial was denied. After some discussion, Williamson was replaced by the second alternate. Defendant now argues that he was denied his right to a fair trial and due process, since the “placement of the alternate on the jury resulted in a verdict against him by a tribunal not of his expressed choosing.”

As correctly noted by the defendant, after a trial has begun, a reasonably brief continuance may be granted to either side in the interest of justice. (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 4(f).) However, the request for a continuance is within the sound discretion of the trial court, and a failure to grant one will be reversed on review only when it is shown that the trial court abused its discretion and the refusal somehow prejudiced the defendant. People v. Wilson (1963), 29 Ill. 2d 82, 91-92.

Here, after the judge stopped the trial for the third time due to her illness, Williamson told the judge that she was feeling light-headed and might still have the flu; that she was not able to concentrate at all; that she was having hot flashes; that she had missed some of the testimony because of the way she was feeling; and that she expressed doubt that her condition would improve by the following day. The record firmly established that the trial court properly ascertained that the juror could not perform her functions, that the juror was ill, that she had lost her ability to concentrate, and that she had not been able to absorb testimony. Accordingly, the trial court wisely used its discretion and assigned an alternate to the jury. It is ridiculous to contend that the court abused its discretion when an alternate was substituted for an ill juror because the defendant did not care for the alternate as much as the original juror. The defendant, who had his opportunity during voir dire to challenge any juror he considered unacceptable (limited, of course, by the number of peremptory challenges granted to each side), does not demonstrate prejudice when a juror who was properly chosen as an alternative, but is now considered undesirable, sits on his jury. There must be some definite showing of prejudice. Clearly, the court acted in a manner to best preserve the defendant’s right to a fair trial by dismissing Williamson and replacing her with the alternate. Defendant has not demonstrated to this court that he was prejudiced by this replacement. The defendant has no constitutional right to a “tribunal of his own choosing,” as he claims, but only the right to an impartial jury (Ill. Const. 1970, art. I, §8), chosen through a joint effort of both parties in compliance with the statutory requirements. (See Ill. Rev. Stat. 1983, ch. 78, pars. 20 through 23; Ill. Rev. Stat. 1983, ch. 38, par. 115 — 4.) Accordingly, defendant was not denied a fair trial or due process as a result of the court’s refusal to grant a continuance to see if Williamson would recover by the next day.

Defendant next contends that he was denied both his right to present a defense and his right to testify, when the court refused to grant him a continuance to locate certain defense witnesses. During the trial, defense counsel told the court that he had sent an investigator out to serve subpoenas on certain witnesses to appear the following day. The next day, defense counsel asked the court for a continuance to locate five witnesses since his investigator was only able to serve one subpoena, that being on Charles Houston (who failed to show). One witness, William Rankin, refused the subpoena, and the other three, Benjamin Smith, Jedd Lee Davis, and Stanley Miller, could not be found.

The court stated that it would not grant a continuance to the defendant in the hopes of his finding any of these witnesses, especially since their testimony was only speculative. However, the court did grant a 10-min-ute recess for counsel to confer with defendant as to whether or not he would testify. During the recess, Jedd Lee Davis appeared and said that he knew the address of the father of Stanley Miller, one of the missing witnesses. Defense counsel again requested a continuance until the next day, in order to locate Miller.

After the State objected to the motion for a continuance, the court agreed to grant a one-hour and 20-min-ute recess, to allow defense counsel time to find Miller. Defense counsel returned and indicated that he could not locate Miller, and he informed the court that he would not present Davis as a witness without Miller. Consequently, he had no more evidence to offer. Then, defendant informed the court that he would only testify if his witnesses did, and he complained that he was not allowed sufficient time to gather his witnesses.

The judge stated that he was not convinced, from the information he had, that those witnesses would be able to provide defendant with a defense. Therefore, the judge denied the defendant’s request for an additional continuance.

Defense counsel stated that of the individuals he was trying to locate, two were alibi witnesses and one was an occurrence witness. One alibi witness, Jedd Davis, did eventually appear that day, but according to defendant, his testimony alone would not sufficiently cover the time period in question. A police report which the court reviewed indicated that the other alibi witness, Stanley Miller, told the police that he remembers seeing defendant on the “14th or 15th” on Pulaski and Arthington with other individuals, but that he did not give a time. The occurrence witness, Charles Houston, gave a statement to the police that at approximately 9:30 p.m. on February 15, 1986, he saw two individuals in a parked car, located in a vacant parking lot at 3830 Taylor Street. He further stated that he observed one of those individuals, a black male, take the body of another black male out of the auto and place it on the ground. He then got back into the car and drove away slowly. He could not identify either of the two individuals in the car, but he did identify the abandoned body as Herd’s.

The defendant correctly notes that a motion for a continuance may be granted when a material witness is unavailable and the defense will be prejudiced by the absence of his testimony (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 4(b)(3)). The granting of the motion, however, is within the sound discretion of the trial court, and its ruling will not be reversed on appeal in the absence of a clear abuse of that discretion. (People v. Collins (1985), 106 Ill. 2d 237, 281.) In reviewing the denial of a request for a continuance sought to secure the presence of a witness, the factors to be considered are: (1) whether defendant was diligent; (2) whether defendant has shown that the testimony was material and might have affected the jury’s verdict; and (3) whether defendant was prejudiced. People v. Boland (1990), 205 Ill. App. 3d 1009, 1013.

Here, the defendant argues that the court abused its discretion by refusing to grant the motion for a continuance, and in doing so, violated defendant’s right to present a defense, his right to testify on his own behalf, and his right to due process. In support of his position, the defendant argues that a continuance should have been granted so that these witnesses could have been procured. He alleges that their testimony would have been relevant because no exact time was established as to when the offenses occurred, only that it was probably after 8 p.m. and before 9:30 p.m. He further argues that Miller’s and Davis’ testimony would have established a reason for the defendant’s presence in the area, that being that he had friends in the neighborhood. Also, Houston’s testimony would have shown that someone else might have committed the murders, because Houston saw two individuals, while only the defendant was found in the car by police.

The State, on the other hand, replies that this motion was properly denied, contending that the defendant has not shown a clear abuse of discretion by the court, nor has he shown that his defense was prejudiced, both requirements for reversal. The State contends that the record proves that these witnesses were not alibi witnesses as alleged by the defendant at trial, nor was the verdict affected by their absence.

At the time of defendant’s request for the continuance, he sought the testimony of three individuals whom he claimed he was with at the time of the murders: Davis, Rankin, and Miller. Rankin refused defendant’s subpoena to appear as his witness, and the defendant did not seek a warrant or aid from the court to compel his appearance. Davis was present, in court, but defendant chose not to have him testify. Defense counsel represented to the court that Davis was not going to cover the time period of the homicide, despite the fact he had told the court hours before Davis showed up that he was an alibi witness. As for both Miller and Rankin, there was no evidence which corroborated defendant’s assertion that these witnesses were able to provide defendant with an alibi. Miller told Officers Cornelison and Thomas that he was in a car, drinking with Davis, Rankin and Burton, on either the “14th or 15th,” and that defendant then walked by and joined them. However, both Davis and Miller acknowledged that (according to the belief of Officer Switski, who had interviewed Miller) this incident was not at the time of the murder. Defendant did not show to the trial court that this “potential testimony” was relevant in establishing defendant’s whereabouts at the time of the murders. Accordingly, we conclude that the trial court did not abuse its discretion when it denied defendant’s request for a continuance.

Furthermore, we reject defendant’s argument that he was deprived of the right to testify on his own behalf as a result of the court’s ruling. His failure to testify was his own choice, presumably a strategic one. Additionally, defendant claims that he was denied his constitutional right to present his own witnesses to establish a defense. This is not so. The court never refused to allow defendant to call any witnesses. If his witnesses would have been available, presumably they would have been allowed to testify. It appears that defendant was less than diligent in sending out an investigator to try to locate the five witnesses only one day prior to their scheduled testimony.

Defendant also urges that Miller and Davis should have been allowed to testify to establish a reason for defendant’s presence in the neighborhood. Defendant overlooks the fact that Davis was present, in court, pursuant to a subpoena, and could have testified to their drinking together on the 14th or 15th, but defense counsel chose not to call him. Thus, defendant cannot now claim he was prejudiced on this basis. Consequently, we find that defendant was not denied his right to present a defense, to testify on his own behalf, or to due process.

Defendant’s next allegation of error is that the court refused to allow into evidence that portion of his statement to the police regarding his possession of the stolen vehicle. Shortly after the defendant was arrested, he was interviewed by the police. A portion of that interview was elicited through the direct examination of Officer Scardino, as follows:

“[Assistant State’s Attorney Brogan]: At some point did you have occasion to have a conversation with this defendant?

[Officer Scardino]: Yes, sir.

Q. And where did that conversation take place?

A. In the interview room at the detectives — on the second floor with the detectives.

Q. And besides yourself and the defendant, do you recall if anyone else was present?

A. My partner Officer Prendkowski was there.

Q. Approximately what time did you have that conversation?

A. I would say somewhere around, maybe, 10:15.

Q. Did you have an occasion to ask the defendant his address?

A. Yes, sir.

Q. And what did he reply?

A. He told me that he resided at 105 South Ashland, in the City of Chicago, County of Cook.

Q. And did you have occasion to ask the defendant whether or not he was employed?

A. Yes, sir. And he stated to me that he was not employed.”

In addition to this portion of the conversation, as testified to by the State’s witness, the defendant made additional statements to the police at that time; however, they were not elicited by the State during direct examination, and the court did not allow defense counsel to cross-examine the witness as to those statements. According to the defendant, he had told the police the following: that he saw the car at the corner of Lexington and Springfield with the motor running and a gun on the seat; that he got in on the passenger side, slid over and drove away; that he saw the police make a U-turn and, as a result, he hit a fepce and wall; that he got blood on his clothes when he stopped to urinate prior to being stopped by the police; that if he had killed the victims he would have done it in one place; that he touched the gun but did not fire it; and that he was in the car for only 5 to 10 minutes.

Under the “completion doctrine,” when a portion of a conversation is related by a witness, the opposing party has a right to bring out the remainder of that conversation to prevent the trier of fact from being misled. (People v. Weaver (1982), 92 Ill. 2d 545, 556-57.) The defendant argues that as a result of Weaver, he should have been able to elicit the remainder of the interview of the defendant by the police. The failure of the court to allow this testimony, according to the defendant, denied him his right to a fair trial and due process of law.

The State, on the other hand, relies on People v. Olinger (1986), 112 Ill. 2d 324, which is distinguishable from Weaver and similar to the facts in the instant case. In Olinger, as in this case, the State introduced a portion of defendant’s statement, and the defendant was precluded from bringing out the remainder. The court in Olinger noted that the defendant attempted to introduce his own exculpatory statements without having to take the stand and face impeachment. That court ruled that “[a] defendant has no right to introduce portions of a statement which are not necessary to enable the jury to properly evaluate the portions introduced by the State.” Olinger, 112 Ill. 2d at 338.

We agree with the State that Officer Scardino’s testimony as to defendant’s address and employment was not misleading, and that defendant’s additional testimony as to his actions with regard to the automobile was not necessary to enable the jury to properly evaluate the elicited testimony. Further, the “admission of evidence under this doctrine is limited to that which is relevant, material, and concerns the same subject at the same time.” (Emphasis added.) People v. Barlow (1989), 188 Ill. App. 3d 393, 411; People v. Pietryzk (1987), 153 Ill. App. 3d 428, 438.

In the present case, the excluded testimony did not concern the defendant’s address and employment status. Rather, defendant simply wanted to introduce his exculpatory statement without having to take the stand and face impeachment. As such, the court’s ruling in precluding defendant from presenting his version as to how and why he came into possession of the car was not erroneous.

Defendant attempts to distinguish this case from Olinger by claiming that this excluded testimony is not exculpatory at all, but is inculpatory, since he is admitting to the possession of a stolen motor vehicle, a crime of which he was eventually convicted. However, this attempt fails, even though the excluded testimony could have led to his conviction on this charge, since its primary purpose for being introduced was to prove that defendant did not commit the more serious crime, namely the murder of the two victims. Consequently, we find that defendant was not denied his right to a fair trial or due process of law as a result of the judge’s action here.

Defendant next asserts that his statement to the police regarding his possession of the stolen automobile should have been admitted under the “[statement (or declaration) against interest” exception to the hearsay rule. Defendant claims that the failure of the court to admit his statement into evidence denied him his right to due process, to a fair trial, and to present a defense.

We conclude that this argument is without merit since this exception to the hearsay rule is simply not meant to apply to the statement of a party.

“The assumption that people do not make false statements damaging to themselves furnishes the basis for the hearsay exception admitting declarations against interest. Such a statement will be that of a nonparty, for if the statement is that of a party, offered by her opponent, it comes in as an admission ***.” (Emphasis added.) M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §804.7, at 695 (5th ed. 1990).

Although some judicial opinions fail to distinguish the declaration against interest exception to the hearsay rule from admissions, there is a clear line between the two evidentiary principles. While admissions relate to statements of a party, declarations against interest relate to statements of a nonparty. (See People v. Berry (1988), 172 Ill. App. 3d 256, 261.) Consequently, we find that the trial court’s decision with regard to this issue is correct, as the defendant’s statement, admitting his possession of the stolen vehicle, does not fall under the declaration against interest exception to the hearsay rule.

Assuming, arguendo, that defendant had been a non-party, his statements would still not have been admissible, as his post-arrest statements were not offered by him as a declaration against his interest, but rather, were offered to support defendant’s own position, which is substantially exculpatory in nature (that he had stolen the victims’ car, but that he had not seen or harmed them). Further, this testimony would not have been allowed as an admission either, since it was not offered against a party, but rather, was offered to support defendant’s own position.

Consequently, we find the defendant’s statement admitting his possession of the stolen vehicle does not fall under the declaration against interest exception to the hearsay rule. Accordingly, we find that the trial court’s decision with regard to this issue was correct.

Defendant next contends that the evidence presented during his trial was insufficient for the jury to find him guilty beyond a reasonable doubt of murdering Herd and Williams. His contention is based primarily upon the fact that the reliability of the gunshot residue analysis and the blood sample analysis are suspect, and are therefore not conclusive as to defendant’s guilt. Consequently, defendant argues, his right to due process was violated.

This court has repeatedly held that the standard to be applied in reviewing the sufficiency of evidence in all cases, whether the evidence is direct or circumstantial (People v. Pintos (1989), 133 Ill. 2d 286, 290-93), is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Collins, 106 Ill. 2d at 261.

As outlined previously, the evidence established that the victims left Williams’ home to go shopping, in Herd’s sister’s car, at approximately 7:30 to 8 p.m. on February 15, 1986. The police received a telephone call notifying them that a man had been dumped from a car in an alley at approximately 9:20 p.m. The description of the car matched Herd’s sister’s car. The police went to that alley to investigate at about 9:35 p.m., and there they found Herd, who was fatally shot in the back of the head. At approximately 9:45 p.m., other police officers in the area spotted the suspect car, with defendant driving it. Defendant, after seeing the police officers, attempted to elude them, but, during the ensuing chase, he crashed into a building. When the officers approached defendant, they saw him take a gun from the waistband of his pants and place it on the seat beside him. While the defendant was being arrested, the police saw blood and white fleshy matter on his face, his clothing, and on the automobile.

Williams’ body was later found at approximately 10:35 p.m., in an alley two blocks away from where Herd’s was discovered. She had been beaten to death with a tire jack, with blood and white fleshy matter splattered on a garage door near her.

Tests performed on defendant’s hands for gunshot residue indicated that he had recently fired a gun. Ballistic comparisons between the bullet that killed Herd and the gun recovered from the defendant established that the gun was a .38 caliber and that the bullet was a “non-factory” .38 caliber. Although the recovered bullet possessed the same general characteristics the bullets test fired from the gun, namely that they had seven lands and grooves with a twist to the right, it could not be conclusively determined that this particular gun fired the bullet that was recovered from Herd. The expended cartridges found in the gun were also nonfactory or “reload” cartridges.

Defendant’s fingerprints were recovered from the car window, as well as from a plastic cup found inside the car. Tests performed on the blood that was splattered on defendant confirmed that it was consistent with Williams’ bloodtype, but not with defendant’s or Herd’s. Also, the blood swabs taken from the tire jack, garage door, and car trunk lid indicated that that blood was also consistent with Williams’ bloodtype.

As stated before, defendant primarily bases his position upon the unreliability of the evidence derived from the scientific analyses of the gunshot residue and the blood splatters. Specifically, defendant alleges that the atomic absorption spectrophotometer (AAS) technique, which was utilized for the gunshot residue analysis in this case, is less than 100% accurate, and can sometimes produce false results. Therefore, according to defendant, it is possible that defendant had merely handled the gun, and had not actually fired it. Similarly, defendant contends that the scientific evidence gathered from the blood samples using electrophoretic procedures was not conclusive as to defendant’s guilt, as it could not be determined that it was definitely Williams’ blood splattered on the defendant.

Although these scientific tests do not conclusively prove that defendant is guilty, the results nevertheless are valuable evidence to be used in conjunction with the remainder of the evidence gathered in this case. The tests that were utilized are generally accepted tests used by forensic scientists in determining whether an individual has recently fired a gun (see People v. Cole (1988), 170 Ill. App. 3d 912, 931-32) and in detecting genetic markers in blood (People v. Thomas (1990), 137 Ill. 2d 500, 517-18; People v. Eyler (1989), 133 Ill. 2d 173, 213-16). Further, there is no indication that there are more thorough or accurate methods available to accomplish these specific tasks. As such, the expert testimony of the forensic scientists, using their community’s accepted testing methods, was sufficient, in conjunction with the remainder of the evidence, to sustain the State’s burden. Consequently, we believe that the cumulative effect of all of the evidence is sufficient, when viewed in the light most favorable to the State, to prove beyond a reasonable doubt that defendant murdered Herd and Williams.

Defendant next contends that he was denied effective assistance of counsel, in violation of the sixth amendment, due to certain omissions by his attorney. This court has previously held:

“[T]he constitutionally guaranteed assistance of counsel has not been provided if the defendant can prove that counsel’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings were so serious as to ‘deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.] The court also indicated a defendant must establish ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” People v. Albanese (1984), 104 Ill. 2d 504, 525, quoting Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.

Accordingly, we must apply the Strickland test, adopted by this court in Albanese, to the facts of the case at hand. In applying this standard, the Supreme Court has determined:

“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. *** If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069-70.

In this case, defendant urges that his trial counsel erred in (1) failing to call witnesses at trial who were called at sentencing; (2) failing to locate certain “alleged” alibi witnesses; (3) failing to make a motion in limine to preclude the introduction of defendant’s prior convictions; and (4) failing to object to the admission of certain evidence, testimony and improper remarks by the State. Defendant submits that he probably would not have been convicted had his attorney not committed these alleged errors. We disagree, for our review of the record demonstrates that even assuming, arguendo, that the alleged errors, taken together, constituted substandard representation, it has not been established that but for them, there was a reasonable probability that the result of this case would have been altered, in view of the overwhelming evidence of defendant’s guilt. Accordingly, there is no need to review the individual claims of inadequate representation to determine whether counsel acted within the range of reasonable professional assistance.

Defendant next argues that during the prosecutor’s closing argument, he made remarks based on personal opinion; cast aspersions on defense counsel; vouched for the credibility of the State’s witness; made an appeal to the jurors’ passions; violated a court ruling; and made improper ref