People v. Sims (244 Ill. App. 3d 966, 1993)

JUSTICE LEWIS

delivered the opinion of the court:

Defendant was convicted by a jury of the offenses of murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)), obstructing justice (two counts) (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4(a)), and concealment of a homicidal death (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3.1(a)). She appeals her convictions and her sentence of natural life without parole for the murder conviction. We affirm.

Before discussing the facts and issues in this bizarre and highly publicized case, we must first dispose of defendant’s motion to supplement the record with a book about the investigation and trial of this case authored by the trial prosecutor, Don W. Weber, and a newspaper reporter covering the trial for the St. Louis Post-Dispatch, Charles Bosworth. (D. Weber & C. Bosworth, Jr., Precious Victims (1991).) Alternatively, defendant requests this court to remand this cause to the trial court for a hearing so that the book can be made a part of the record on appeal. In reply to the State’s objection to the motion, the defendant also urges this court to take “judicial notice” of the book.

Defendant alleges in her motion to supplement the record that the first publication and printing of the book occurred in October 1991, after the record on appeal and defendant’s brief were filed in this court. In her post-trial motion, defendant raised the issue that the assistant State’s Attorney (prosecutor) was writing a book about the trial. The prosecutor admitted at the hearing on the post-trial motion that he had thought about and discussed writing the book with Charles Bosworth, Jr., during the trial; that he and Bosworth agreed to the project a week after the trial had ended; and that he signed a contract with the publisher to write the book a week before the sentencing hearing. The State’s Attorney, William Haine, stated: “[I] was in on all discussions involving trial strategy, witnesses, arguments, argument to the court and to the jury. And at no time did a book come up.”

Defendant claims that the book would show a conflict of interest by the trial prosecutor, prosecutorial misconduct, undisclosed discovery violations, and possible perjury by police witnesses. Defendant exhorts this court not to be “the only three people in the State who are forbidden to consider or know the contents of the book” and to do “poetic justice.” Finally, defendant feels that “[i]t is ludicrous for the State to suggest that this Appellate Court should stick its head in the same [sic] like an ostrich.”

Defendant claims that this “situation is entirely unique and no case law or other precedent in point is known to exist.” The only authority cited by defendant for allowing the record to be supplemented by the book is Supreme Court Rule 329 (134 Ill. 2d R. 329). This rule states in pertinent part as follows:

“Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court or a judge thereof. Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth.” (134 Ill. 2d R. 329.)

In construing Rule 329, the supreme court said:

“Rule 329, as the Committee Comments demonstrate, is a very broad provision whose object is to allow the record on appeal to be amended to correct inaccuracies, supply omissions, correct improper authentication, and settle controversies as to whether the record on appeal accurately discloses what occurred at trial.” (People v. Chitwood (1977), 67 Ill. 2d 443, 447, 367 N.E.2d 1331,1333.)

Rule 329 is not to be "used as a vehicle for introducing additional evidence into the record.” (People v. Miller (1989), 190 Ill. App. 3d 981, 989, 548 N.E.2d 1, 6.) Further, the supplementation must have a basis in the trial court record (People v. France (1987), 163 Ill. App. 3d 819, 516 N.E.2d 1036) and cannot be used to impeach or contradict the contents thereof. (People v. Miller (1989), 190 Ill. App. 3d 981, 548 N.E.2d 1.) Here, the supplementation of the record with the book would introduce new evidence into the record, some of which, if the defendant’s claims are accurate, would impeach and contradict matters of record.

The closest precedent that this court could find is People v. Sheridan (1977), 51 Ill. App. 3d 963, 367 N.E.2d 422. In Sheridan, defendant attempted to supplement the record on appeal with the separate record of the defendant’s accomplice who testified against defendant, to show that a deal had been made by the State and the accomplice for the accomplice’s testimony. The court pointed out that this was not a proper supplementation of the record as contemplated by Rule 329. It was, instead, an attempt to introduce evidence not contained in the trial record, and the defendant was not permitted to supplement the record with this material. The same reasoning is applicable here.

In addition, this court cannot consider the contents of the book under the doctrine of “judicial notice.” A court may take judicial notice of “that which everyone knows to be true.” (People v. Snulligan (1990), 204 Ill. App. 3d 110, 561 N.E.2d 1125.) However, we are not ready to accept everything that the prosecutor says or writes as being outside the area of controversy or so capable of being verified as to be beyond reasonable dispute. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §201 et seq. (5th ed. 1990).

This court cannot amend Supreme Court Rule 329 or stretch the doctrine of “judicial notice” beyond recognition simply because we have a “unique opportunity” or because this case may have received more publicity than the average case. It is often forgotten that the State is also entitled to fair treatment and justice, and that the State must be given the opportunity to rebut and defend against the serious charges leveled by defendant. We appreciate defendant’s concern for judicial economy by settling all issues now rather than in future proceedings, but we are not so concerned with judicial economy that we totally ignore all the laws, rules, and procedures developed to protect all the parties involved in the litigation.

Furthermore, there is nothing in the record to assure the accuracy and veracity of the statements made in the book. Those matters and the weight they are to be given have to be determined in proper proceedings provided by law. This court has neither the authority nor the means of making such determination, nor can this court remand this case to the trial court for a hearing when no pleadings have been filed defining the issues to be raised.

The defendant’s motion to supplement the record falls outside the ambit of Rule 329, and the book is not admissible under the doctrine of judicial notice. Therefore, defendant’s motion to supplement the record is denied.

Even though the contents of the book cannot be considered in this case, we still must resolve the issue as to whether the fact that the prosecutor thought about writing a book about the trial he was prosecuting and any discussion he had regarding those thoughts during the trial constitute a per se violation of defendant’s right to a fair trial. We do not think that thoughts that may cross a prosecutor’s mind or discussions about such thoughts, without some showing that the defendant suffered harm, are sufficient to grant a new trial. Simply because a prosecutor, judge, or defense attorney may consider profiting from his or her involvement in a highly publicized trial does not necessarily mean that the prosecutor, judge, or defense attorney has engaged in conduct that violates the Code of Professional Responsibility. (134 Ill. 2d R. 1.1 et seq.) In addition, State’s Attorney Haine stated that he was involved in all phases of defendant’s trial,' and he was unaware of a book in the offing. We could not find anything in the record to indicate that the trial prosecutor or the State’s Attorney conducted himself during the trial in a manner calculated to prejudice the defendant’s right to a fair and impartial trial deriving from the prosecutor’s contemplation of writing a book.

We now present the facts in this long trial. There were, in essence, two murder trials within this trial. Defendant was charged with the murder of her six-week-old daughter, Heather. The facts surrounding the death of Heather, in April 1989, were so similar to facts surrounding the death of defendant’s infant daughter, Loralei, in June 1986, that the trial judge allowed the State to present the evidence surrounding the death of Loralei in order to show defendant’s modus operandi, intent, knowledge, lack of accident or mistake, and her identity in the death of Heather. The State proceeded chronologically in its presentation of the evidence, with the facts surrounding Lora-lei’s death being presented first and then the facts of the victim’s death. Since defendant is only charged with the murder of Heather, we shall reverse the order of discussion and show the facts surrounding the death of Heather before regressing in time to Loralei’s death.

Defendant’s initial version of the events of April 29, 1989, which she related to the police, was that she was at home alone with her 14-month-old son, Randall, and her six-week-old daughter, Heather. Her husband, Robert, was at work. Heather was in a bassinet downstairs and Randall was asleep upstairs. At approximately 10:30 p.m. that evening, she was taking the garbage out, and when she reached the bottom of the porch stairs, she saw a person 10 feet away pointing a gun at her. This person ordered her back into the house. Defendant remembered that as she stepped inside her kitchen door, she was hit on the back of the head and neck area with an unknown object, rendering her unconscious. Defendant did not regain consciousness until her husband awoke her at 11:20 p.m., about 45 minutes later.

Defendant’s description of her assailant to the police was that he was a man of medium build and that he was as tall as the policeman interviewing her. She was unable to determine the intruder’s race because he was wearing a dark ski mask, even though the mask had large circular eye holes. Defendant believed her assailant was a male by the sound of his voice, and she conjectured that he might be white.

Nine months later, when defendant testified at trial, she broke the news that the intruder of April 1989 was the same person who had broken into her home in 1986 and abducted her infant daughter Lora-lei. She knew that the assailant was the same person by his voice. She also stated that he was definitely a white male.

Defendant also altered her initial version of the event when she testified at trial that she was uncertain about the exact time that she was knocked unconscious. Detective Mick Dooley had testified, prior to defendant’s testifying, that defendant told him on the night of Heather’s alleged kidnapping that she was knocked out about 10:30 p.m. and that her husband awoke her at 11:15 p.m., 45 minutes later. The nurse who saw defendant at the hospital around 12:35 a.m. that same night corroborated Dooley’s testimony when she testified that the defendant had also told her she was knocked out around 10:30 p.m. The testimony of Detectives Dooley and Rick McCain also established that, in their interview with the defendant at 3 a.m. the morning of April 30, she again reiterated that the incident occurred at approximately 10:30 p.m.

The testimony of Robert Sims, defendant’s husband, established that, when he arrived home from work between 11:12 and 11:15 p.m., he found defendant lying facedown on the kitchen floor. He called her name several times, but she appeared lifeless. He thought she had had a heart attack. He shook her several times and received no response. Robert went to check on the children, but he could not find Heather. He returned to defendant and shook her until, finally, she started groaning. He asked her where Heather was, to which defendant responded, “[I]n there in the bassinet.” She mumbled that when she took the garbage out, “some guy” walked up and told her to go back into the house, and then he hit her. Robert then ran down the hall and leaped up the stairs, with defendant right behind him. They found their son, Randall, asleep upstairs and unharmed. They came back downstairs and searched the house for Heather three or four more times. Defendant finally said, “[W]e have to call the cops,” and gave Robert the number she obtained from the side of the refrigerator.

Detective Dooley, an officer investigating Heather’s disappearance, testified that, at about 12:30 a.m. in the morning after the incident, he took defendant to the hospital, although she appeared to be fine. Defendant did not want to go, but she finally relented and walked unaided from the house to the police car. On the way to the hospital, defendant mentioned a home invasion that had taken place down the street from her home and that her husband was afraid that this kind of thing would happen, apparently meaning a home invasion and kidnapping. Defendant’s condition suddenly degenerated as they approached the hospital, she leaned forward moaning and rubbing the back of her neck. Dooley helped her out of the car and into the hospital, as he was afraid she might fall. He put her into a wheelchair once they were inside.

The nurse who examined defendant that evening testified that she did not see any lacerations, lumps, or bruises, but she did see some redness on the back of the neck where defendant had been rubbing. The nurse had never seen a person who was knocked out for a long time who was not confused and disoriented. Doctor Duk C. Kim, who also examined defendant that night, prescribed an ice bag and some Tylenol for defendant. Dr. Kim thought it “highly unlikely to impossible to correlate what she [the defendant] told me and then the findings [sic].” The doctor was going to discharge her when Detective Dooley insisted upon an X ray. The doctor agreed reluctantly. The X rays were negative. Detective Dooley then took defendant to the police station, where she was interviewed for an hour.

Dr. Mary Case, a forensic pathologist and neuropathologist, testified that a five-minute loss of consciousness is severe and a 45-minute loss of consciousness is “of quite serious concern.” A person who has been knocked out for a period of time would be “woozy” and in a stupor, would recover gradually, and would not be alert 10 minutes after recovering consciousness. According to Dr. Case, that person would have retrograde amnesia and would not remember anything that occurred 5 or 10 minutes or more prior to the blow. It also would be impossible for anyone knocked out 30 to 45 minutes to remember the blow.

Dr. Case further testified that she had performed the autopsy on Heather. It was her opinion that Heather had died by suffocation caused most likely by placing a hand across her mouth. The doctor determined that Heather must have been frozen after she died, and that her death must have occurred three or four days earlier, based upon the internal decomposition, the lack of external decomposition, and the bright red colors on the forehead, cheek, and neck, and from the loss of rigor mortis. It was also Dr. Case’s opinion that Heather’s death occurred near the time of her disappearance.

The testimony of other police officers established that trained tracking dogs were brought to the Sims home at 11:27 p.m. that evening, but the dogs did not pick up any scent of the intruder. The police investigation revealed that on the night of Heather’s disappearance a neighbor across the street was walking two of her dogs around 10:40 to 10:45 p.m. and then returned to her home and took her other two dogs out. The neighbor did not see or hear anything unusual.

On May 3, 1989, four days later, Heather’s naked body was found in a plastic trash bag in a trash barrel at a riverside park area in Missouri. This park area was just across the bridge from Alton, Illinois, approximately 2.7 miles, or a drive of less than six minutes, from defendant’s home. Witnesses’ testimony revealed that the trash bag was not in the trash barrel at 10:30 a.m., but that the bag was present in the trash barrel at 1 p.m.

The police and the Federal Bureau of Investigation (FBI), through forensic testing, traced the trash bag in which Heather’s body was found to a roll of trash bags still in defendant’s home. According to defendant’s theory, the alleged kidnapper removed only Heather and a trash bag from her home and did not touch or disturb anything else. The supposition is that the intruder then smothered Heather, removed her clothes, put her into the trash bag obtained from defendant’s home, stored her body in a freezer, and dumped her into a barrel in Missouri four days later.

Defendant’s parents, who lived about a four- or five-minute drive from defendant’s home, were away on a trip on the date of Heather’s disappearance. Defendant’s husband called them at approximately 2 a.m. on April 30, 1989, and they told Robert that they would come back that day. Defendant had a key to her parents’ home and had known about their planned trip several days before their departure.

Robert’s sister, Linda Condray, testified that she came over to defendant’s home about 8 a.m. the morning of April 30, just before defendant left to go to her parents’ home. An unexplained gap as to defendant’s whereabouts was presented when defendant contradicted her sister-in-law’s testimony. According to defendant’s testimony, she left her home that morning before her sister-in-law arrived and went to her sister-in-law’s home rather than her parents’ home. Her sister-in-law’s husband, who supposedly helped defendant unload the car, was never called to verify defendant’s story. Defendant’s sister-in-law also testified that defendant and defendant’s husband arrived at her house just before 3 p.m., and that they arrived separately. The police left defendant’s home at approximately 11 a.m. on April 30.

Defendant’s father testified that he first saw defendant, after arriving home from his trip, when he went to Linda Condray’s home after 3:30 p.m. on April 30, 1989. Defendant’s parents’ freezer was almost empty, according to defendant’s aunt, who opened it later that day to get some meat.

Defendant and her husband testified that they were home the morning and the afternoon of May 3, 1989, the day Heather’s body was found, thus asserting they could not have driven to Missouri to deposit Heather’s body in the trash barrel. Defendant’s and Robert’s testimony was not corroborated by any other witnesses, even though both claimed the press had been outside their home constantly since Heather’s disappearance.

Stephanie Werner Cook, defendant’s hospital roommate when Heather was born, testified that defendant told her that three years earlier a masked gunman had knocked her unconscious, while she was returning from taking the trash out, and that the gunman had taken her baby, Loralei. Defendant’s daughter Loralei was abducted on June 17, 1986, but, at that time, defendant had told the police that the masked gunman came into her house and down into her basement, where defendant was watching television. He made defendant lie on the floor, did not hit her, took Loralei out of the bassinet by the basement stairs, and took off with defendant in pursuit, when she heard her door close. Cook related to her mother defendant’s story of being knocked out while returning from emptying the trash, and when the news came out six weeks later that defendant’s daughter had been abducted while defendant was taking out the trash and that a masked gunman had knocked defendant out, she contacted the police. Defendant denied that she told Cook details of Loralei’s kidnapping and murder.

The evidence of Loralei’s abduction, presented by the State, was that at approximately 10:20 p.m. on June 17, 1986, a masked gunman appeared on defendant’s basement stairs. He wore a dark ski mask, a dark short-sleeve t-shirt, and dark pants. Defendant’s dog, a collie, had not barked or given any warning, even though the screen door was locked, had a closer on it, and made a definite loud squeak when it closed. The gunman supposedly entered by this screen door, because a cut had been made in the screen. When the gunman left and defendant heard the squeak of the door, she jumped up and ran after the gunman. Once outside, she saw a “shadowy figure” running down the driveway to the south, and she heard what she thought was someone running on gravel. She yelled and chased after him. The Grays, the neighbors who lived at the end of defendant’s driveway, did not hear her, even though it was a hot summer evening and their windows were open. Mr. Gray was getting a glass of water in the kitchen at about the time of the alleged abduction, and he did not see or hear anything suspicious when he looked over at defendant’s house. Defendant came to their door and requested help. In spite of Mrs. Gray’s pleas to defendant to wait for the police to arrive, defendant insisted on returning to her house to call her husband, who was at work.

The police arrived and brought three trained tracking dogs. The dogs, in spite of their success record, did not pick up any strange scents around the driveway or the road. The next morning, the police brought other dogs to search, again without success.

On the morning of June 18, 1986, the police were to search east of defendant’s home, and divers were going into a pond next to defendant’s property. At that time, Lieutenant Wayne Watson of the Illinois State Police suggested to the defendant that this was a good time for the defendant to go with the police to give a statement, but defendant protested that she did not want to leave the house. According to Lieutenant Watson, defendant said: “[N]o, no, I want to be here when they bring her body up.” She then stuttered and said: “[T]hat is not what I mean. I mean my baby is alive and I want to be here when they bring her on the porch.”

Loralei’s nude body was found on June 24, 1986, about 100 feet north of the rear of defendant’s house near the top of a ravine in a heavily wooded area with dense underbrush. It appeared from the evidence that someone had thrown the body of Loralei off the top of the ravine after coming through defendant’s backyard. The argument espoused by defendant, that the abductor returned to her home sometime after June 17, while the police were investigating Loralei’s disappearance, and, in 100-degree weather, climbed a steep ravine in a woods thick with underbrush to place the child near the top of the ravine, belied logic and reason.

The police recreated the scene of the night Loralei was allegedly kidnapped by having a policewoman lie on the floor as defendant did and, upon hearing the screen door close, jump up and run outside. Another police officer closed the screen door, ran to the back of the house, acted as if he were disposing of Loralei’s body down the ravine, and then ran down defendant’s driveway. A videotape of the several reenactments that covered all of the possible routes the kidnapper could have taken was made and shown to the jury at trial. These reenactments revealed that it was impossible for the kidnapper to have run north to the back of the house, dispose of the body of Loralei, and return south past the house and be 75 feet down the gravel driveway by the time defendant came up from the basement and saw and heard the “shadowy figure.” The policewoman, playing the role of defendant, arrived at the driveway before or at the same time the policeman, acting as the intruder, ran past her. These enactments tracked closely the version of events related by the defendant to the police at the time of Loralei’s disappearance.

No ransom demand was made, and nothing was disturbed in the house in both daughters’ abductions. The killer removed the clothing of both infants. Defendant lived in two different locations at the times of the abductions, and she had an unlisted telephone number on both occasions, so her address was not readily available to the public. Her husband worked swing shifts both times so that it would have been difficult for anyone outside of the plant to know when he was going to be at work. Seven trained dogs with high success rates in tracking unknown persons were unable to detect the scent of the alleged intruder on the two occasions.

Defendant told a co-worker in 1983 that she did not want children: “[Especially not a little girl.- It’s too much trouble.” Defendant’s roommate in the hospital when Loralei was born heard defendant crying and apologizing, while talking on the telephone to her husband, for having a baby girl. Defendant’s husband admitted that defendant had apologized for having a girl, but defendant denied making such apology. Linda Heistand, a friend of defendant, testified defendant had stated that she feared Loralei would be kidnapped, before Loralei disappeared, which testimony was denied by defendant. Several nurses testified that defendant and Robert were not excited or interested in the birth of Heather. Another good friend of defendant, June Gibson, testified that three weeks after Heather’s birth, defendant said she did not know how much longer she could “handle it,” referring to the fact that she slept downstairs with Heather, while her husband and Randall slept upstairs. Defendant also denied this. Defendant’s husband admitted on the witness stand that defendant moved back upstairs with him after Heather disappeared, and before her body was discovered, they had “good” sex. Defendant again denied this.

Following the trial, the jury found the defendant guilty of murder, of obstructing justice, and of concealing a homicidal death. The same jury that convicted defendant determined that the defendant was eligible for the death penalty, but after the hearing on aggravation and mitigation, the jury found there were sufficient mitigating factors to not impose the death penalty. The court then imposed a natural-life sentence on defendant. The defendant appeals and raises numerous issues for consideration. Because of the nature of the issues raised by the defendant, we will not consider these issues in the order raised by the defendant, but we will consider them in the order that they were presented to the trial court.

I. DEFENDANT DENIED FAIR TRIAL

Our first consideration in this appeal is defendant’s contention that she was denied a fair trial by an impartial jury. Under this argument, defendant raises the following subissues: (1) that the court erred in denying defendant’s motion to appoint and to pay for requested experts; (2) that the court and the prosecution did not ensure a trial free from publicity generated by defendant’s case; and (3) that the court erred in denying defendant’s challenges of prospective jurors for cause.

A. MOTION FOR EXPERT WITNESSES

Defendant filed a pretrial motion requesting the appointment of several experts: a trace evidence examiner; a pollster to ascertain the extent and effect of adverse pretrial publicity in Peoria County; a medical consultant; a jury consultant; and a forensic pathologist. Defendant also sought payment of the experts from the State. The trial judge denied the motion. On appeal, defendant argues that because of questions as to the time and cause of death, because of the trash bag evidence, and because of the publicity generated, experts were essential to afford defendant an ability to confront the State’s evidence and to assure a fair trial. We affirm the trial court’s denial of the motion.

A similar motion was considered in People v. Hebel (1988), 174 Ill. App. 3d 1, 527 N.E.2d 1367. In Hebei, this court set forth what a defendant must do for the appointment and funding of expert witnesses: (1) a defendant must apprise the court of the need for expert witnesses and the relevancy of the expert’s testimony; (2) a defendant must identify the expert whom he wishes to employ; (3) a defendant must give the court an estimate of the fees involved; and (4) a defendant must establish indigency. (Hebel, 174 Ill. App. 3d at 34, 527 N.E.2d at 1388-89.) These requirements preclude the grant of a blank check on the county treasury to a defendant who can afford to hire his own experts, prevent the hiring of unneeded experts, prevent the hiring of experts whose opinions might not be relevant to any of the issues in the case, and prevent the hiring of so-called experts who really might not be experts.

Defendant failed to meet the requirements set out in Hebei. Defendant never apprised the trial court who the experts were that she wished to employ, the relevance of their testimony, the necessity of the experts, and the estimated cost to Madison County. For instance, defendant complains that expert testimony was needed to counteract Dr. Case’s testimony that defendant could not have been rendered unconscious for more than five minutes and remember the events immediately preceding the blow, that defendant could not have been oriented and capable of telling her story to her husband and the police shortly after gaining consciousness, and that she could not have remembered the blow delivered. However, defendant does not indicate if an expert exists who could counter Dr. Case’s testimony, who this expert is, what his or her qualifications are, and what this expert would cost.

Additionally, defendant never established her indigency, a prerequisite to the receipt of county assistance under the statute. (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 3(d).) At the motion hearing, defense counsel argued that defendant was unable to afford the hiring of experts. Defense counsel stated that defendant had no funds of her own but admitted that her husband was now back to work. However, defense counsel qualified his admission by stating, “He makes barely enough to eke by.” Defense counsel also asserted that defendant had sold her house and that all available funds have been used already in her defense. While these statements were designed to show defendant’s indigency, we find the statements by counsel to be self-serving and not based on sworn testimony. We also note defendant never filed an affidavit listing her assets and liabilities such as is required before counsel is appointed by the court (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 3(b)), which would have been more persuasive on this issue. Furthermore, defendant employed private counsel to represent her at trial. She also posted cash bail in the sum of $40,000, which was later released to her when she was held without bond following the filing of the charge of murder. This evidence negated her unsupported claim of indigency.

Finally, we note the recent supreme court case of People v. Peeples (1993), 155 Ill. 2d 422. In that case, evidence was not properly preserved for testing, and other evidence tested in the State crime laboratory was not allowed to be tested by defendant’s expert. The supreme court held that, in spite of these problems, based upon the facts in the case, defendant was reasonably afforded an opportunity to prepare his defense. (People v. Peeples, 155 Ill. 2d at 480.) Based upon the facts in this case, we conclude that defendant was reasonably afforded an opportunity to prepare her defense in spite of being denied her requests for appointment of various experts. Thus, the trial court did not err in refusing defendant’s motion for appointment and funding of these unknown experts.

B. PUBLICITY AND SEQUESTRATION OF THE JURY

Defendant contends that the publicity about this case, from its inception and lasting throughout the trial, prevented her from obtaining a fair trial. Specifically, defendant asserts that she was unduly prejudiced by pretrial publicity which was generated with the approval and the encouragement of the prosecutor; by the court’s failure to sequester the jury during trial, to frequently admonish the jurors to avoid media accounts of the trial, and to voir dire the jurors regarding the publicity’s influence on them or to allow the defendant this opportunity. The State does not dispute the fact that this bizarre case generated an extraordinary amount of media attention but argues that defendant received a fair trial by an impartial jury.

The extent of publicity is not as important as what was reported and whether the jurors in this case were influenced by the publicity. After all, “Crimes, especially heinous crimes, are of great public interest and are extensively reported. It is unreasonable to expect that individuals of average intelligence and at least average interest in the community would not have heard of any of the cases which they are called upon to judge in court.” (People v. Taylor (1984), 101 Ill. 2d 377, 386, 462 N.E.2d 478, 482.) Of paramount importance “is the assurance that a juror will be able to set aside all information he has acquired outside of the courtroom, along with any opinions he has formed, and decide the case strictly on the evidence as presented in the courtroom.” (Taylor, 101 Ill. 2d at 386, 462 N.E.2d at 482.) In addition, the courts become very concerned about the impartiality of a jury when the jury is exposed through the media to highly prejudicial and inadmissible evidence, such as the prior criminal record of a defendant, the refusal to take or failure to pass a polygraph examination, purported confessions, or any other evidence excluded pursuant to a motion in limine. (Irvin v. Dowd (1961), 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639; People v. Taylor (1984), 101 Ill. 2d 377, 462 N.E.2d 478.) It is not the amount of publicity which is determinative, but what is important is that the defendant receive a fair and impartial trial. (People v. Lego (1987), 116 Ill. 2d 323, 507 N.E.2d 800.) With these principles in mind, we now consider whether the defendant received a fair trial before an impartial jury.

Initially, we note that defendant requested a change of venue from Madison County, which the State did not oppose. The case was then transferred to Peoria County. The granting of this motion greatly reduced the impact of the pretrial publicity generated in Madison County, and the defendant has not shown how the local media in Madison County prejudiced the Peoria jurors. The next consideration must be whether the publicity in Peoria was prejudicial to the defendant, and, if so, was the jury prejudiced in its deliberations by this publicity and thereby unable to give defendant a fair and impartial trial.

This court has read all of the media reports generated in Peoria and submitted by the defendant, about the case sub judice. Of the reports reviewed, only two newspaper reports and two television broadcasts could possibly be considered prejudicial to the defendant. These reports involved evidence which was excluded by the defendant’s motions in limine. In one newspaper report and the two television broadcasts, it was reported that defendant allegedly had marijuana in her bloodstream after Heather’s abduction. These reports were published during voir dire of the jury. The other newspaper report, published on December 31, 1989, over a week prior to trial, reported that defendant and her husband had failed lie detector tests after Loralei’s abduction, but not in Heather’s alleged abduction. Because of the timing of these prejudicial publicity reports, we recognize the danger that the reports posed to defendant’s right to a fair and impartial jury, but these reports were harmless as we discuss hereinafter. A review of the remainder of the publicity generated in Peoria before the trial reveals that the publicity was concentrated primarily at the time of Heather’s disappearance in April 1989 and, thus, was removed in time from the trial.

With regard to the publicity which occurred during the trial, the media merely reported the evidence as it evolved, after it was heard by the jury. This publicity cannot be considered prejudicial to the defendant, even if the jury read or heard such summaries. However, there is no evidence that any juror actually violated his or her oath by reading or listening to such media reports.

During voir dire, the court asked the potential jurors several general questions before tendering the jurors to defense counsel and the prosecutor for further questioning. Specifically, the court inquired: (1) whether each juror had read or heard about the case through the media; (2) whether the information each juror had read or heard had caused him or her to form an opinion in this case; and (3) whether each juror could disregard what she or he had read or heard and be fair and impartial. The jurors that were selected all indicated, except for one, Radosevich, that they had never expressed or formed an opinion about the guilt or innocence of defendant; that they had read or heard very little about the case; and that they could be fair and impartial. Defendant compares this case to Dowd, but in Dowd, 8 out of 12 jurors held the opinion that the defendant was guilty and that it would take sworn testimony to change their opinion. (Irvin v. Dowd (1961), 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639.) In the case at bar, Radosevich, the only juror who admitted to having formed an opinion, had never expressed his opinion to anyone else, and he stated that he had changed his opinion after understanding “how the system works,” and that he presumed defendant to be innocent until proven guilty.

Further, defense counsel also questioned the jurors about their possible prejudice from the publicity, and again, all of the jurors selected denied that this information would influence their decision. In fact, many jurors not selected were excused for cause because of their exposure to publicity and because they had formed an opinion of the case. The defendant has not shown, nor can it be determined from the record, that she suffered prejudice or was denied a fair and impartial trial due to the publicity either before or during her trial.

Defendant next contends that the court erred in denying her motion to sequester the jury. The granting or denial of such a motion is within the sound discretion of the court and is not reversible error if the trial judge gives adequate warnings to the jury not to read or listen to press reports of the trial and no demonstration of actual prejudice is made by defendant. (People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402.) Here, the jurors were instructed several times throughout the proceedings not to read newspaper articles, not to listen to radio broadcasts, and not to watch television reports about the case. There is no evidence that the jurors were exposed to subsequent media reports after they were sworn or that the jurors violated their oath and instructions from the trial judge.

Further, the defendant did not raise any question about the adequacy of the warnings until the trial was almost over. Even then, defense counsel’s only concern was that the jury might have heard something inadvertently during recesses. Since counsel never proved or made an offer of proof that the jury actually read or heard anything outside of the evidence adduced in the courtroom, defendant failed to show actual prejudice against her right to a fair trial.

Finally, defendant asserts that there was prosecutorial misconduct on the part of the assistant State’s Attorney in generating publicity. It is true that the police initiated publicity on the advice of the FBI and with the approval of the prosecutor before the body of Heather was found, but that publicity was for the purpose of flushing out the murderer. Further, this publicity was generated in Madison County prior to the arrest of defendant. There is no proof that the jurors in Peoria were aware of this publicity, and in fact, the jurors selected indicated that they would not be influenced by what they had read or heard. The only publicity the prosecutor initiated during trial, about which defendant complains, was the prosecutor’s announcement that he was going to spring a “surprise” on defendant’s counsel, but the nature of this “surprise” evidence was not disclosed. This surprise was subsequently revealed at trial to be Dr. Case’s testimony that defendant could not have been knocked unconscious and still remember all that she did. The defendant made no showing that the jury read or heard this announcement or, even if one or more jurors heard the announcement, that prejudice ensued.

We, of course, can second-guess the trial judge, and it is possible we might have taken some precautionary steps that hindsight affords us, such as warning the jurors more frequently not to read or listen to reports about the case. But how many times must a judge tell a jury that presumably has some modicum of intelligence not to read or listen to media reports about the trial? The trial judge could have excluded the press from the motion in limine hearing concerning evidence of marijuana in defendant’s blood, but such exclusions usually result in more publicity and false reports. We find, therefore, that the publicity generated did not have an adverse influence on the jury; to hold otherwise would be pure speculation and contrary to the record.

C. DENIAL OF CHALLENGES OF JURORS FOR CAUSE

Defendant asserts that the court erred in denying her challenges for cause of four jurors. After unsuccessfully challenging three of the prospective jurors for cause, she exercised peremptory challenges against those three. As to the fourth juror, which the defendant unsuccessfully challenged for cause, defendant had exhausted all of her peremptory challenges, and this juror was seated. Although defendant mentions in her brief all of the four jurors unsuccessfully challenged for cause, it is only the one juror seated about which the defendant centers her contentions.

Summarily, we find no merit to defendant’s assertion that the unsuccessful challenges to the three jurors which were peremptorily excused by her deprived her of a fair trial. There can be no claim of prejudice if these prospective jurors were not impaneled, because peremptory challenges are not of constitutional dimension and the loss of a peremptory challenge does not constitute a violation of a constitutional right to an impartial jury. (Ross v. Oklahoma (1988), 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273; People v. Harris (1992), 231 Ill. App. 3d 876, 596 N.E.2d 1363; People v. Johnson (1987), 162 Ill. App. 3d 952, 516 N.E.2d 343.) It is through the use of peremptory challenges that a, fair and impartial jury is obtained. (People v. Harris (1992), 231 Ill. App. 3d 876, 596 N.E.2d 1363.) Having disposed of the defendant’s contention regarding the three jurors not seated, we now consider defendant’s contention that the court erred in denying her challenge for cause against the juror who was seated, Radosevich.

A court’s refusal to excuse a juror for cause is a matter of discretion. (People v. Seaman (1990), 203 Ill. App. 3d 871, 561 N.E.2d 188.) On review, the court’s determination of a person’s competence to sit as a juror will not be overturned unless the court’s decision is against the manifest weight of the evidence. (People v. Peeples, 155 Ill. 2d at 469.) The true consideration is whether the defendant received a fair and impartial trial. (People v. Taylor (1984), 101 Ill. 2d 377, 462 N.E.2d 478.) It is defendant’s burden to show, as the party challenging the juror, that Radosevich was not a fair and impartial juror. People v. Seaman (1990), 203 Ill. App. 3d 871, 561 N.E.2d 188; People v. Peeples (1993), 155 Ill. 2d 422.

Defendant first asserts that Radosevich was not a fair and impartial juror because he stated in voir dire that he had an opinion regarding defendant’s guilt or innocence. Radosevich’s responses to the questions of counsel were previously discussed, wherein Radosevich indicated that he had an opinion at a prior time of defendant’s guilt or innocence, but that he no longer held an opinion after seeing how the system worked. Radosevich stated that he believed defendant was entitled to a fair trial and that she was presumed to be innocent.

Additionally, defendant contends that Radosevich should have been excused for cause since he also indicated he would believe a police officer more than other witnesses. The pertinent questions, Radosevich’s answers, and the usual ritual in a criminal trial whereby the juror is rehabilitated were as follows:

“MR. GROSHONG [defense counsel]: We expect to hear the testimony of some police officers. Do you think that by reason of their employment you would give their testimony any more credence or weight merely because of the nature of their employment?

JUROR: Yes.

MR. GROSHONG: Why is that?

JUROR: Well, that’s their job. You know, that’s what they get paid to do, so, you know, I would have to weigh their — what they say greater than another individual that’s, you know— that’s not part of their job.

MR. GROSHONG: Usually the police officers testify on the State’s side of the case, don’t they?

JUROR: Uh-huh.

MR. GROSHONG: Do you think that because the police officers testify on the prosecutor’s side of the case, since you give their testimony greater weight, that that puts some kind of additional burden on the defense to prove her own innocence?

JUROR: No.

MR. GROSHONG: Does it put Paula in a position where she’s already starting out with a black eye in this case?

JUROR: No.

* * *

MR. GROSHONG: Mr. Radosevich, would the failure on my side of the case to call police officers to testify on my side of the case, knowing that the prosecutor will call them to testify, some of them, on his side of the case[,] would that put Paula at a disadvantage in your eyes?

JUROR: No.

MR. GROSHONG: How do you reconcile that with the earlier statement, sir, that you would give more weight to the testimony of police officers?

JUROR: Well, I think a police officer, his statements would be more credible is the only point I am trying to make.

MR. GROSHONG: I take it that you would judge the police officers’ testimony by a standard different from that you would impose on other people?

JUROR: Yes.

* * *

THE COURT: Let me ask you about a police officer’s testimony. I don’t want to put words in your mouth, but some jurors feel that a police officer might have more knowledge in a particular area, say on distances or particular police matters. But if you are instructed that you should treat the testimony of a police officer the same as you treat any other testimony as far as believability or credibility, would you do that?

JUROR: Yes.”

From this colloquy, it is reasonable to infer that the court found Radosevich willing to be a fair and impartial juror.

Defendant cites no authority that holds that Radosevich’s responses automatically disqualify a prospective juror. In People v. Jarosiewicz (1977), 55 Ill. App. 3d 1057, 371 N.E.2d 949, the court held that the belief of a juror that a police officer would not commit an unprovoked act of violence on a citizen was not sufficient grounds to dismiss the juror for cause. Similarly, this court recently held that the fact the juror was friends with several Carbondale police officers in a Carbondale murder case was not sufficient grounds to excuse the juror. (People v. Harris (1992), 231 Ill. App. 3d 876, 596 N.E.2d 1363.) It would appear that the jurors in both Jarosiewicz and Harris may have been more “pro-police” than Radosevich was in the instant case; however, the jurors in those two cases were found to be fair and impartial. Finally, we note that in the recent supreme court case of Peeples, the court found that the trial judge did not err in refusing to strike a juror for cause who had sat on a previous murder case and who had found out afterwards that the State’s hands were tied by the the rules of evidence, which he indicated was not a “valid process.” We do not find that the court’s refusal to excuse Radosevich for cause was against the manifest weight of the evidence, simply because Radosevich became entangled in the frequently occurring imbroglio of the hypothetical questioning as to what weight should a potential juror give to the unknown testimony of an unknown police officer versus the unknown testimony of an unknown witness.

II. PROSECUTORIAL MISCONDUCT

The defendant’s next issue for consideration is presented under what she terms “prosecutorial misconduct.” Under this issue, she presents two subissues: (1) that the court erred in permitting Dr. Case, the pathologist in this case, to testify as an expert witness in neurology, and (2) that the prosecutor’s improper profit motive denied her a fair trial.

A. EXPERT WITNESS TESTIMONY

While it is not entirely an issue of prosecutorial misconduct, the defendant contends that the court abused its discretion in allowing Dr. Case to testify as an expert witness in neuropathology. Her argument of this subissue is twofold: (a) that the doctor was not qualified as an expert witness in this field because she had never treated live patients, and (b) that the doctor’s surprise testimony regarding defendant’s head injury and her related memory constituted a discovery violation. We first address the defendant’s assertion that Dr. Case was not qualified as an expert witness in the field of neuropathology.

A person may testify as an expert where his or her experience and qualifications afford the witness knowledge not common to lay persons and where the testimony will aid the trier of fact in reaching its conclusion. (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) Whether a witness qualifies as an expert is within the discretion of the trial court. People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.

Here, the record reveals that Dr. Case was qualified to testify as an expert in neuropathology. Dr. Case’s testimony revealed that she completed a two-year residency in this field, and that she was board certified in this specialty. She enumerated her substantial experience, training, and research in this area. Dr. Case further testified that she has published works in the field, has acted as a consultant, and has given a considerable number of lectures and seminars in neuropathology. She is one of the foremost experts in this field. While Dr. Case had not treated live patients, she had examined persons with head injuries, especially in child abuse cases, to determine their cause. Dr. Case’s experience and knowledge qualified her as an expert in neuropathology, and her knowledge could be considered at least equal to, if not greater than, the knowledge of Dr. Kim and the nurse at the hospital, both of whom examined defendant and testified to the effect a blow to the head would have had on defendant.

In addition, Dr. Case’s testimony regarding the effects on memory as a result of unconsciousness from a blow to the head aided the jury in evaluating the defendant’s testimony. While it may be true that most lay persons have some knowledge of the effects that a blow to the head may have, the doctor’s testimony on retrograde amnesia and the degree to which a person is able to function after a head injury was not information that was common knowledge to a lay person. The court did not abuse its discretion in allowing Dr. Case to testify as an expert in neuropathology.

The second prong of defendant’s argument relates more to the charge of prosecutorial misconduct. This issue, out of all the issues raised, presents the most difficulty to this court. The defendant contends that the testimony of Dr. Case regarding neuropathology was a surprise to her and violated the discovery rules. She claims that she was not advised prior to trial as to the substance of Dr. Case’s testimony regarding her head injury, her ability to function as a result of the injury, and the retrograde amnesia corresponding to extended unconsciousness from a head injury. The defendant claims she was only aware that Dr. Case was being called to testify about the autopsy of Heather, i.e., as a forensic pathologist. Defendant contends that these facts constitute a violation of Supreme Court Rule 412(a)(iv) (134 Ill. 2d R. 412(a)(iv)) and hence reversible error.

Rule 412(a)(iv) provides in pertinent part as follows:

“(a) *** the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:

* * *

(iv) any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, and a statement of qualifications of the expert.” 134 Ill. 2d R. 412(a)(iv).

This whole controversy arose because of the prosecutor’s announcement to the press that he was going to present a “surprise” to the defendant in his case the next day. We are not certain as to the prosecutor’s motives to incur such an unnecessary risk to his case by this announcement. The experienced defense counsel, of course, seized the golden opportunity presented to him by objecting strenuously to the “surprise” in his post-trial motion and on appeal.

This court must now transcend all the trial maneuvering, aspirations of counsel, and personal games that counsel sometimes engage in with their opposition by deciding if reversible error was committed due to the “surprise.” This requires that we review the totality of the circumstances surrounding the testimony of Dr. Case.

Defendant’s counsel never objected at the trial to Dr. Case’s testimony concerning the impossibility of defendant’s story on the grounds of surprise. Defense counsel’s objection at trial was to Dr. Case’s qualifications to testify as an expert in the field of neuropathology because of her lack of experience in treating live persons. Counsel’s objection on the grounds of surprise was first made to the court in a post-trial motion. Counsel never asked on the record before, diming, or after the testimony of Dr. Case for a continuance of any kind. Defense counsel and the prosecutor discuss and argue vague memories, during the post-trial hearing, as to what occurred off the record during the trial concerning a possible request for a continuance. The objection to Dr. Case’s testimony because of the “surprise” only arose after the trial and after defendant’s counsel was preparing his post-trial motion.

We note that the prosecutor disclosed the name of the witness, Dr. Case, and that the witness was an expert in the field of medicine, more particularly in forensic pathology. Second, the prosecutor disclosed that the witness was an expert in neuropathology, and her curriculum vitae was provided to the defendant, wherein her credentials in the field of neuropathology were enumerated. A listing of her published works as to neuropathology and head injuries was a part of this document. Further, defendant had an opportunity to interview Dr. Case, and although it is not apparent that she availed herself of the opportunity to depose Dr. Case for this case, she did depose the doctor for the related juvenile case concerning the custody of the defendant’s son.

The fact that a prosecutor will routinely attack defendant’s version of the events and defendant’s credibility should come as no surprise to even an inexperienced defense counsel. When the statements that defendant made to the police on the night of and the morning after the alleged abduction were reviewed by defense counsel, it should not have surprised defense counsel that a prosecutor would view the defendant’s story as being very weak and unbelievable as to the head injury. The ordinary lay person would know, from experience or knowledge of car wrecks, sporting events, and other accidents, that a blow to the head knocking a person out for 45 minutes would be a very serious matter. The ordinary lay person would at least question the ability of a person receiving such a blow, upon being revived, to jump up, run up and down stairs, make the suggestion and retrieve the number to call the police, and give statements to the police until 8 a.m. the next morning without any sleep, rest, or incapacitating headache. Counsel for the defense does not and cannot claim surprise that the State would attack defendant’s story of what occurred the night of the alleged abduction.

Defendant did not claim surprise at the testimony of Dr. Kim and the nurse at the hospital, who examined defendant within hours after the alleged blow, concerning their disbelief of defendant’s statement that she had been struck in the head and knocked out for approximately 45 minutes. Moreover, Dr. Case’s testimony, although more technical than Dr. Kim’s and the nurse’s testimony, was cumulative. It should not have come as a surprise that the prosecutor would attempt to obtain an opinion as to the impossibility or unlikeliness of defendant’s story from every medical and even nonmedical witness called.

The most damaging evidence against defendant’s argument of surprise, other than her failure to make a timely objection, came in two pretrial hearings held five months before the trial commenced, wherein Officer McClain testified in response to cross-examination by defendant’s counsel in both hearings that the State had a doctor who would testify that defendant’s claim of being knocked unconscious was inconsistent with her report of events and, therefore, an impossibility. For some reason, counsel did not pursue the questioning about this witness.

Defendant cites Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1991), 223 Ill. App. 3d 31, 584 N.E.2d 963, which was affirmed by the supreme court (Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1992), 154 Ill. 2d 543, as authority that our courts condemn undisclosed expert testimony. Defendant asks why would we require stricter disclosure in civil cases than we do in a criminal case, when a defendant’s liberty is in jeopardy? The answer is that we condemn the nondisclosure of experts in both types of cases. There are, however, different rules and different ways for disclosure to be made in civil and criminal cases. In the case sub judice, there was disclosure that two medical experts were going to testify, what their fields of expertise were, and generally what they were going to testify about. In Wakeford, the court felt that there was a violation of Supreme Court Rule 220, because the witness was not disclosed as being an expert, and so plaintiff had no way of knowing that the witness was being called to give an expert opinion. (134 Ill. 2d R. 220(b)(1).) Here, Dr. Case was disclosed as an expert, and her fields of expertise were disclosed, so that defendant could not help but be aware that she would give an expert opinion. If the investigating police officer in Wakeford had been listed as an expert, and his field of expertise as to the distribution of crime in Alton had been disclosed, then the results may have been different. Wakeford is, therefore, distinguishable from the present case.

There are numerous criminal cases whereby experts were allowed to testify even when their existence was not fully disclosed or the gist of their testimony was not fully revealed to defense counsel. (People v. Carr (1989), 188 Ill. App. 3d 458, 544 N.E.2d 978; People v. Fleming (1987), 155 Ill. App. 3d 29, 507 N.E.2d 954; People v. Scheidt (1986), 142 Ill. App. 3d 844, 492 N.E.2d 248; People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466; People v. Taylor (1982), 107 Ill. App. 3d 1019, 438 N.E.2d 565; and People v. Davis (1982), 105 Ill. App. 3d 129, 434 N.E.2d 13.) We cannot distinguish these cases from the present case, as each of these cases holds there was no surprise or prejudice to defendant, as defendant should have known there was