{ "id": 3601148, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL VISNACK et al., Defendants-Appellants", "name_abbreviation": "People v. Visnack", "decision_date": "1985-05-21", "docket_number": "Nos. 81\u20142952, 81\u20142976, 81\u20143068 cons.", "first_page": "113", "last_page": "127", "citations": [ { "type": "official", "cite": "135 Ill. App. 3d 113" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "469 U.S. 935", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032608, 12032352, 12032290, 12032771, 12032515, 12032166, 12032556, 12032207, 12032245, 12032411, 12032668, 12032478, 12032447 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/469/0935-11", "/us/469/0935-05", "/us/469/0935-04", "/us/469/0935-13", "/us/469/0935-09", "/us/469/0935-01", "/us/469/0935-10", "/us/469/0935-02", "/us/469/0935-03", "/us/469/0935-06", "/us/469/0935-12", "/us/469/0935-08", "/us/469/0935-07" ] }, { "cite": "437 N.E.2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 262", "category": "reporters:state", "reporter": "Ill. 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App. 3d 464", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524173 ], "weight": 2, "pin_cites": [ { "page": "469" }, { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0464-01" ] } ], "analysis": { "cardinality": 1150, "char_count": 31383, "ocr_confidence": 0.745, "pagerank": { "raw": 4.285113496466484e-07, "percentile": 0.9161900944804118 }, "sha256": "55d7a67c7b763ce74a75a3ded71af80d229e82cd9f90f293b33c5895133901ee", "simhash": "1:3f1bb4ce3747e1c7", "word_count": 5100 }, "last_updated": "2023-07-14T21:44:15.524885+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL VISNACK et al., Defendants-Appellants." ], "opinions": [ { "text": "PRESIDING JUSTICE STAMOS\ndelivered the opinion of the court:\nDefendant Daniel Visnack was convicted of murdering his wife, Sharon. He was also convicted of soliciting the murder and of conspiracy to commit the murder. He was sentenced to natural life imprisonment. He appeals his conviction and sentence. Defendants Randall Weidner and James Kubick were convicted of rape, conspiracy to commit rAurder and murder. Defendant Weidner was sentenced to concurrent prison terms of 80 years for murder and 60 years for rape. Defendant Kubick was sentenced to consecutive prison terms of 40 years for murder and 30 years for rape. All three defendants were tried jointly before a jury.\nOn the morning of August 7, 1979, Sharon Visnack\u2019s body was found in the Calumet City apartment she shared with her husband, defendant herein, Daniel Visnack. It was subsequently determined that she had been raped and had died of asphyxiation, the result of having two plastic garbage bags fastened around her head with duct tape. The State sought to prove that defendant Daniel Visnack had hired Weidner and Kubick to r\u00e1pe and kill his wife. All three defendants confessed to their parts in the murder. Visnack and Weidner moved to suppress their confessions, and their motions were denied after hearings before the trial court. At trial, all three defendants denied involvement with the crime.\nDefendant Visnack contended that his confession had been coerced and that his waiver of his Miranda rights was ineffective because he had not been informed that his attorney wished to confer with him at the time he confessed. Defendant Weidner contended that his confession had been coerced. The trial court denied defendants\u2019 motions to suppress.\nMuch of the testimony at defendant Visnack\u2019s suppression hearing was devoted to determining the time at which defendant had given his statement to the police and whether defendant\u2019s attorney had been waiting at the police station to see him during this time. However, examination of this question was limited by the court because defendant Visnack\u2019s motion to suppress contained no allegation that his attorney had been denied access to him during his interrogation. The testimony established that defendant was taken to the police station for questioning at approximately 12 p.m. on August 10, 1979. Defendant was given his Miranda rights and was questioned.\nOfficer Kelly Matthews testified that when defendant was told that the police had obtained information which indicated that he had solicited the murder of his wife, and that two persons had been arrested in connection with the murder, defendant began to cry and stated that his wife deserved what she got because she was unfaithful. These statements were not recorded or transcribed. A thirty-minute conversation followed, whereupon the State\u2019s Attorney\u2019s office was contacted. Three assistant State\u2019s Attorneys, Timothy McMahon, Michael Madden and Cliff Johnson, arrived at the station about an hour later. Defendant was again advised of his Miranda rights and gave a statement confessing to the crime. This statement was tape-recorded. Defendant completed his confession at approximately 2:45 p.m.\nDefendant Visnack\u2019s motion to suppress his statements contained numerous allegations of threats and coercion by the police during his interrogation. Officer Matthews denied these allegations. Matthews also testified that defendant did not ask to see a lawyer, although Matthews knew that defendant was represented by attorney William Freeman. Matthews went on to testify that he saw defendant\u2019s father and brother in the police station foyer between 12:30 and 1 p.m. This testimony was corroborated by that of Officer Ronald Dorsey, Matthews\u2019 partner in the investigation, who had been excluded from the courtroom during Matthews\u2019 testimony. Dorsey did not remember seeing defendant\u2019s father and brother at the station, but saw attorney Freeman after defendant had confessed.\nAssistant State\u2019s Attorney Michael Madden testified that he arrived at the police station at approximately 1:30 p.m., and that he did not hear defendant being threatened or coerced by the police. He also testified that defendant did not request an attorney and that defendant was not asked if he had retained counsel. Madden believed the taped confession began between 2 and 2:15 p.m. He stated that he saw Freeman in the waiting area of the police station after defendant\u2019s confession had been given, and that the confession ended at 2:45 p.m. Assistant State\u2019s Attorney McMahon\u2019s testimony concerning defendant\u2019s confession conformed to that of Madden.\nDefendant\u2019s father testified that he went to the police station after defendant had been taken there and called Freeman to obtain Freeman\u2019s representation for defendant. Defendant\u2019s father did not reach Freeman, but left a message on Freeman\u2019s answering machine. Defendant\u2019s father\u2019s testimony as to what time he called Freeman was uncertain. He stated at various points in his testimony that he first called Freeman at 12:05, 2 and 4 p.m.\nDefense attorney Freeman testified that he had received defendant\u2019s father\u2019s call sometime after 1 p.m. and that he thought he had arrived at the police station at approximately 1:30. He stated that he requested a conference with defendant, but was kept waiting until shortly before 3, when he was told that defendant had confessed.\nThe trial court found that Freeman had arrived at the station \u201cat or about \u2014 well, certainly after 2:00 o\u2019clock,\u201d and that by 2:45 p.m., defendant had \u201cspilled his guts,\u201d and denied defendant\u2019s motion to suppress. The court also denied defendant Weidner\u2019s motion to suppress. On appeal, defendant Visnack contends that the waiver of his Miranda rights was not made knowingly and intelligently because he had not been informed that his attorney had requested consultation with him. Defendant Weidner contends that his confession was involuntary because it had been obtained as the result of threats and coercion by the police. Several additional issues are raised concerning the proceedings at trial.\nDefendant Visnack first contends that the trial court erred in denying his motion to suppress his confession on the ground that he had not been informed that his attorney was in the police station demanding to see him. However, defendant failed to raise this argument in his motion to suppress, and in his post-trial motion. Defendant\u2019s motions relating to his confession contained only general allegations that the confession was involuntary and had been obtained in violation of defendant\u2019s Miranda rights. The motions do not mention defendant\u2019s claim that he was not informed that his lawyer wanted to speak with him.\n\u201cIssues, including constitutional issues, not raised in the trial court are generally considered waived on appeal and cannot be urged as grounds for reversal on review.\u201d (People v. McGrew (1984), 128 Ill. App. 3d 464, 469, 470 N.E.2d 1157.) The Code of Criminal Procedure of 1963 requires a written motion for a new trial specifying the grounds therefore. (Ill. Rev. Stat. 1979, ch. 38, par. 116 \u2014 1.) Failure to raise with specificity the issues posed on appeal denies the trial court the opportunity to correct alleged errors and to give the reviewing court the benefit of the trial court\u2019s judgment. (People v. Irwin (1965), 32 Ill. 2d 441, 443-44, 207 N.E.2d 76.) Because defendant failed to address the particular issue now presented for appellate review, this issue had been waived.\nWe will, however, consider this issue as one affecting substantial rights under Supreme Court Rule 615(a). 87 Ill. 2d R. 615(a); People v. Foster (1979), 76 Ill. 2d 365, 380, 392 N.E.2d 6.\nIn the instant case, it is undisputed that defendant was informed of his Miranda right to consult with an attorney and that he waived this right. It is also undisputed that defendant was never informed by his interrogators that his lawyer was present and seeking the opportunity to consult with him.\nIf defendant\u2019s attorney had in fact been at the police station asking to speak with defendant, and if the police had not informed defendant of this fact, any statements obtained from defendant after the police themselves knew of counsel\u2019s efforts to reach defendant could not be rendered admissible on the theory that defendant had knowingly and intelligently waived his right to consult with counsel. (People v. Smith (1982), 93 Ill. 2d 179, 187, 189, 442 N.E.2d 1325, cert. denied (1983), 461 U.S. 937, 77 L. Ed. 2d 312, 103 S. Ct. 2107.) The resolution of this issue therefore involves the question of whether defendant\u2019s attorney was in fact present at the police station and asking to speak with defendant prior to defendant\u2019s confession, because any statement obtained from defendant once the police learned of counsel\u2019s presence is inadmissible. 83 Ill. 2d 179, 187.\nThe trial court in the instant case heard the testimony of several witnesses in its attempt to determine the time at which defendant\u2019s counsel appeared at the police station. The testimony of the police officers and assistant State\u2019s Attorneys established that the assistant State\u2019s Attorneys had arrived at the station between 1:30 and 1:45 and had not seen defendant\u2019s attorney, and that defendant\u2019s confession was recorded over a half-hour period between 2:15 and 2:45. Therefore, if defense counsel had arrived at the station before 2:15 p.m., defendant\u2019s confession should have been suppressed.\nAttorney Freeman testified that he received the call on his answering machine sometime after 1 and that he thought he had arrived at the station at approximately 1:30. He said he informed the receptionist that he represented Daniel Visnack and that he wished to speak with him, but that he was kept waiting until shortly before 3, when two police officers and three assistant State\u2019s Attorneys emerged from the station and told him that defendant had confessed. Freeman testified that one of the assistant State\u2019s Attorneys said that he had not known that Freeman represented defendant and that he would have allowed Freeman to see defendant had he known that Freeman was defendant\u2019s attorney.\nDefendant\u2019s brother testified that he and his father went to the station between 12:30 and 1 and asked to see defendant and that defendant\u2019s father then called Freeman and left a message on his answering machine. Defendant\u2019s father testified as to the time he called Freeman, but his testimony was uncertain and conflicting, and defendant characterizes it in his reply brief as \u201cworthless.\u201d\nThe trial court found that defense counsel had arrived \u201cat or about \u2014 well, certainly after 2:00 o\u2019clock,\u201d and that the police had not been aware of his presence at the time defendant began his confession.\nIt is well established that is the function of the trier of fact, and not the court of review, to determine the credibility of witnesses, and that where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. (People v. Perez (1981), 94 Ill. App. 3d 377, 381, 418 N.E.2d 969.) In the instant case, all the evidence as to time was uncertain; none of the witnesses was sure of exactly what time any of the events in question occurred. The relevant time periods were short and closely spaced, and the entire issue hinged on differences between the testimony of witnesses of not more than half an hour. Under these circumstances, we cannot say that the trial court erred in making its finding as to the time defendant\u2019s attorney arrived at the station, especially in light of defense counsel\u2019s testimony that he received the call from his answering machine \u201csometime after 1:00\u201d and that he could only approximate the time of his arrival at the police station. We therefore will not substitute our judgment for that of the trial court.\nDefendant Visnack also contends that his waiver of his Miranda rights was not made knowingly and intelligently because his attorney had not been called before defendant was questioned. Defendant had been taken to the police station on August 7, to give a life-and-death statement about his wife. He was not under arrest. At that time, defendant\u2019s father called attorney Freeman and Freeman went to the police station, where he found that defendant had become ill and had been taken to a hospital. Freeman told a police officer that he was defendant's attorney, that he wanted to be present during any questioning of defendant and that if the police wished to question defendant they should contact him so that he could bring defendant to the station.\nFreeman then went to the hospital and informed defendant that he had been retained to represent defendant in connection with the death of his wife, and that if the police wanted to speak with defendant, he should contact Freeman.\nThree days later, on August 10, the police had received information implicating defendant in the murder, and defendant was taken to the station for questioning. He was informed of his Miranda rights, waived them, and was questioned. He was not told that his lawyer had asked on August 7 to be present during his questioning.\nDefendant argues that the instant case is controlled by People v. Smith (1982), 93 Ill. 2d 179, 442 N.E.2d 1325, cert. denied (1983), 461 U.S. 937, 77 L. Ed. 2d 312, 103 S. Ct. 2107, in which our supreme court held that a defendant\u2019s waiver of his fifth amendment right to consult with an attorney was not voluntary where defendant had not been informed that his attorney had requested consultation with him. However, in Smith, the defendant was under arrest for murder and in police custody at the time his attorney told the police that she -wished to speak with him, and the defendant had not seen his attorney before giving an incriminating statement and therefore was not aware that she wished to speak with him. In contrast, defendant in the instant case was not under arrest at the time his attorney first told the police that he wished to be present if defendant was questioned, and the attorney had visited defendant on that day and told him personally that he wished to be present if the police sought to question him. In the instant case, therefore, defendant was aware that he was represented by counsel and that his counsel had expressed a desire to be present during any police questioning. Because, contrary to the factual situation in Smith, defendant in the instant case was actually aware that his lawyer wished to be present during questioning, we find that defendant\u2019s waiver of his right to have his lawyer present was knowingly and intelligently made.\nDefendant\u2019s contention that his sixth amendment right to counsel (U.S. Const., amend. VI) was violated by his interrogation is without merit because adversary judicial proceedings had not been initiated at that time. See People v. Martin (1984), 102 Ill. 2d 412, 419, 466 N.E.2d 228, cert. denied (1984), 469 U.S. 935, 83 L. Ed. 2d 270, 105 S. Ct. 334; People v. Finklea (1983), 119 Ill. App. 3d 448, 451, 456 N.E.2d 680.\nDefendant next contends that the trial court improperly precluded him from presenting his fifth and sixth amendment claims by restricting his cross-examination of prosecution witnesses concerning what occurred at the police station prior to and during his interrogation. However, an examination of the record shows that defendant\u2019s cross-examination was limited only when he attempted to inquire as to the time defense counsel arrived at the police station, a matter which was beyond the scope of defendant\u2019s motion to suppress and the direct examination of the witnesses, and therefore not properly pursued on cross-examination in the hearing on the motion to suppress. The scope of cross-examination is a determination which rests largely in the discretion of the trial court. (People v. Kline (1982), 92 Ill. 2d 490, 504, 442 N.E.2d 154.) In the instant case, we find that the trial court properly prohibited defendant from questioning witnesses as to immaterial matters.\nDefendant next contends that he was denied his sixth amendment right to counsel where he was precluded from consulting with his attorney during a lunch recess in the hearing on defendant\u2019s motion to suppress. However, an examination of the recent decisions of this court shows that a defendant\u2019s sixth amendment right to counsel is not violated in such cases where only a short recess is involved and defendant and his attorney have not requested consultation with each other. (People v. Sanders (1984), 129 Ill. App. 3d 552, 564-65, 472 N.E.2d 1156; People v. Moore (1984), 128 Ill. App. 3d 505, 515-16, 470 N.E.2d 1284.) An examination of the colloquy in the record as to this incident reveals that neither defendant nor his attorney indicated a desire to consult during the lunch recess. We therefore find that defendant\u2019s sixth amendment right to counsel was not violated by the trial court\u2019s ruling prohibiting defendant from speaking with anyone during the lunch recess.\nDefendants Visnack and Kubick next contend that they were denied a fair trial where they were tried jointly even though their defenses were antagonistic. \u201cThe general rule is that persons jointly indicted should be jointly tried, and separate trials are required only when the defenses are so antagonistic that a fair trial can be achieved only through severance.\u201d (People v. Dorsey (1980), 88 Ill. App. 3d 712, 717, 412 N.E.2d 1132.) The trial court\u2019s decision whether to grant defendant\u2019s motion to sever will not be reversed absent an abuse of discretion. People v. Daugherty (1984), 102 Ill. 2d 533, 541, 468 N.E.2d 969.\nIn the instant case, it is clear that the defenses of the defendants were not antagonistic. None of the defendants testified, and therefore there were no accusations that other defendants were the culpable parties. Each defendant\u2019s defense was that none of the three was involved in the murder. Our examination of the record reveals no element in the defenses of any of the defendants which is antagonistic to any other defendant. We therefore find that the trial court did not abuse its discretion in denying defendants\u2019 motions to sever.\nDefendants Visnack and Kubick next contend that the jury selection procedure followed by the trial court was inadequate where the court refused to ask questions sufficient to elicit the bias and prejudices of the prospective jurors.\nIn order to successfully challenge the adequacy of voir dire, it is not necessary for the defendant to show that members of the jury were in fact prejudiced. (United States v. Dellinger (7th Cir. 1982), 472 F.2d 340, 367.) The focus, rather, is on whether the procedure used for testing impartiality created a reasonable assurance that prejudice would be discovered if present. (472 F.2d 340, 367.) \u201c[A] failure to permit pertinent inquiries to enable a party to ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently, may constitute reversible error.\u201d People v. Thomas (1980), 89 Ill. App. 3d 592, 599, 411 N.E.2d 1076, citing People v. Lobb (1959), 17 Ill. 2d 287, 300, 161 N.E.2d 325.\nDefendants argue that the trial judge erred in refusing to ask questions to elicit responses which would have demonstrated prejudicial bias relative to defendants\u2019 right to refrain from testifying without unfavorable inference, defendants\u2019 not having to prove his innocence, defendants\u2019 not having to prove who committed the offense, the necessity of considering each defendants\u2019 case separately, and the importance of not drawing unfavorable inferences from the fact of defendants\u2019 arrest and indictment.\nExamination of the transcript of voir dire included in the record shows that the trial court, at defense counsel\u2019s request, informed each venire of prospective jurors that the defendants need not prove their innocence and that the burden was upon the State to prove the defendants guilty beyond a reasonable doubt. Additionally, the record reveals that the court also cautioned the jurors throughout the trial that certain evidence was being introduced only against certain defendants. Although defendant claims that it was essential that the jurors be questioned about the need to keep the evidence against each defendant separate, this contention is unsupported by citation to precedent, and we believe that the procedure followed by the court in admonishing the jury was proper and was, in fact, more effective in assuring that the jurors considered the evidence against each defendant separately than questioning them prior to trial, before they had learned the nature of the evidence, would have been. The record also shows that the jurors were told that the charges against the defendants were merely formalities and were not to be taken as evidence of guilt against defendant.\nDefendants argue that the trial court erred in not questioning prospective jurors as to their attitude toward defendants\u2019 right to refrain from testifying. Defense counsel requested, prior to voir dire, that the court ask such a question of the prospective jurors. The court agreed to ask such a question, but neglected to do so, without objection from defense counsel. Although the failure to question or instruct prospective jurors on this point has been considered reversible error (People v. Zehr (1984), 103 Ill. 2d 472, 477-78, 469 N.E.2d 1062), defendants have waived the issue by their failure to make a timely objection, and we cannot say that plain error exists here, in light of the overwhelming evidence against defendants.\nDefendants Visnack and Kubick each contend, citing Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, that they were denied a fair trial of the trial court\u2019s admission into evidence of each other\u2019s confession, which contained inculpatory statements. The State argues that the confessions were properly admitted because the jury was given limiting instructions and because the confessions were interlocking.\nIn People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525, our supreme court stated, in considering Bruton:\n\u201cBoth the Supreme Court and this court have subsequently determined that Bruton does not require \u2018reversal of a defendant\u2019s conviction when the defendant himself has confessed and his confession \u201cinterlocks\u201d with and supports the confession of his codefendant.\u2019 Parker v. Randolph (1979), 442 U.S. 62, 64, 60 L. Ed. 2d 713, 718, 99 S. Ct. 2132, 2135; People v. Rosochaeki (1969), 41 Ill. 2d 483.\u201d 97 Ill. 2d 1, 21.\nIn the instant case, both Visnack\u2019s and Kubick\u2019s confessions \u201cinterlock.\u201d Therefore, we find that the trial court did not err in admitting the confessions.\nDefendant Visnack next contends that error resulted from the admission into evidence of a hearsay statement through the confession of defendant Weidner, which was intended to provide a basis for the State\u2019s theory of defendant\u2019s motive for killing his wife. Weidner\u2019s confession contains a statement that defendant told him he wanted his wife killed for her life insurance. The State contends that no prejudice to defendant Visnack resulted from the admission of the statement, because the confession of Weidner was not admitted as evidence against Visnack.\nBecause defendant Visnack has not raised this issue in his post-trial motion, it is waived. (People v. McGrew (1984), 128 Ill. App. 3d 464, 469, 470 N.E.2d 1157.) Even were we to consider this contention under the plain error language of Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), we would find that reversal is not warranted by the admission of the statement implicating Visnack because David Sadowski, a former classmate of Visnack, testified to the same matter. Even if hearsay testimony is improperly admitted into evidence, reversal is not required where the same matter has been proven by independent and properly admitted evidence. People v. Horton (1973), 14 Ill. App. 3d 957, 963, 304 N.E.2d 21.\nDefendants Visnack, Weidner and Kubick next contend that on numerous occasions during the State\u2019s closing arguments, the prosecutors made improper remarks which prejudiced defendants. However, of the approximately 15 instances of improper argument complained of by defendants, only five were objected to at trial, and only one was raised in defendants\u2019 post-trial motions. Any irregularities in closing argument not raised in a motion for a new trial are deemed waived. (People v. Jackson (1981), 84 Ill. 2d 350, 358, 418 N.E.2d 739.) Although we may consider plain errors or defects affecting substantial rights which have not been properly preserved for review (People v. Pickett (1973), 54 Ill. 2d 280, 282-83, 296 N.E.2d 856; People v. Thomas (1983), 116 Ill. App. 3d 216, 220, 452 N.E.2d 77; 87 Ill. 2d R. 615(a)), we find that the errors complained of in the instant case do not approach the level of error required for consideration under Supreme Court Rule 615(a).\nIn addition, we find that the one allegedly improper statement which defendants have preserved for review, the State\u2019s reference to defense counsel as \u201chired guns,\u201d was rendered harmless by the trial court\u2019s admonishment of the jury to disregard it, and therefore that no prejudice resulted to defendants from this comment.\nDefendant Visnack next contends that his sentence of natural life imprisonment was excessive because the trial court failed to consider his potential for rehabilitation. However, an examination of the transcript of defendant\u2019s sentencing shows that the trial court gave proper consideration to this factor.\nDefendant Visnack also argues that his sentence constituted an abuse of discretion because it was unfairly disparate to those of his codefendants. Defendant contends that he was less culpable in the commission of the crimes than his codefendants.\nA disparity in sentences is appropriate where the defendant receiving the more severe sentence was the moving force in the commission of the crime. (People v. Massarella (1979), 80 Ill. App. 3d 552, 573, 400 N.E.2d 436, cert. denied (1981), 449 U.S. 1077, 66 L. Ed. 2d 799, 101 S. Ct. 855.) In the instant case, defendant Visnack was convicted of soliciting the murder of his wife, and may therefore appropriately be sentenced to a more severe term of imprisonment than his codefendants, who committed the murder at his behest.\nDefendant Visnack finally contends that the trial court improperly considered the offenses of solicitation and conspiracy to commit rape in imposing his sentence, where defendant was in fact acquitted of those charges. However, the record shows that the trial court did not consider these offenses in reaching its decision as to defendant\u2019s sentence. Although the court stated:\n\u201cI understand that he didn\u2019t tell the other two to go out and kill her in such a brutal manner. He didn\u2019t tell them directly. But, there was evidence that the actual killing had \u2014 let it be known to them or it was made known to them that they could kill Sharon, but bloodlessly, but could also take some liberties, to put it mildly,\u201d\nit is apparent that this comment merely pertains to the fact that defendant did not care how his wife was killed, as long as there was no blood. Defendant Yisnack\u2019s final contention is therefore without merit.\nDefendant Weidner contends that his confession was involuntary and should have been suppressed. Defendant claims that his youth, mental condition and inexperience in criminal matters, combined with coercive psychological tactics used by the police to induce his confession, caused him to involuntarily waive his Miranda rights.\nDefendant argues that, because he was 17 years old at the time of his arrest, the police were required to notify his parents under section 3 \u2014 2 of the Juvenile Court Act. (Ill. Rev. Stat. 1979, ch. 37, par. 703\u2014 2.) However, this section applies only to juveniles taken into custody pursuant to section 3 \u2014 1 of the Act. (Ill. Rev. Stat. 1979, ch. 37, par. 703 \u2014 1.) Defendant in the instant case was not arrested pursuant to a petition in the juvenile court, but was simply arrested for murder and was therefore subject to the jurisdiction of the criminal courts.\nDefendant also argues that his confession was involuntarily given. \u201cWhether a statement was voluntarily given must be determined from \u2018the totality of the circumstances\u2019 (People v. Prim 53 Ill. 2d 62, 70) and consideration must be given to \u2018both the characteristics of the accused and the details of the interrogation.\u2019 Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 862, 93 S. Ct. 2041, 2047.\u201d People v. Simmons (1975), 60 Ill. 2d 173, 179, 326 N.E.2d 383.\nAn examination of the trial court\u2019s comments and findings in the instant case reveals that the trial court took great care to consider all the facts urged by defendant, including defendant\u2019s age and the testimony of his psychiatric expert, and found that defendant had knowingly waived his Miranda rights and therefore that his confession was given voluntarily. The court\u2019s conclusions are supported by the record, and we find no error in them. See Haley v. Ohio (1948), 332 U.S. 596, 599, 92 L. Ed. 224, 228, 68 S. Ct. 302, 304; People v. Simmons (1975), 60 Ill. 2d 173,180-81, 326 N.E.2d 383.\nDefendant Weidner also contends that the trial court improperly excluded the testimony of a priest concerning a post-interrogation conversation the priest had with defendant wherein defendant stated that he had confessed because he had been threatened by the police. The trial court found this testimony to be inadmissible hearsay. Defendant argues that it is not hearsay.\n\u201cA statement made by a defendant in custody after his arrest that is offered in his favor is not an admission and is subject to objection on hearsay grounds.\u201d (People v. Garth (1975), 31 Ill. App. 3d 716, 719, 334 N.E.2d 359; People v. Colletti (1968), 101 Ill. App. 2d 51, 55, 242 N.E.2d 63, cert. denied (1969), 396 U.S. 927, 24 L. Ed. 2d 225, 90 S. Ct. 259.) Under the hearsay rule, a party is excluded from proving his own out-of-court statements (People v. Harman (1984), 125 Ill. App. 3d 338, 341, 465 N.E.2d 1009), and such statements may not be used by a defendant as substantive evidence. (People v. Barnes (1982), 107 Ill. App. 3d 262, 267, 437 N.E.2d 848; People v. Garth (1975), 31 Ill. App. 3d 716, 719, 334 N.E.2d 359.) The statement offered by defendant here was made by him and was offered in his favor; therefore, it is hearsay and was properly excluded by the trial court.\nFor the reasons expressed herein, the convictions of all defendants are affirmed.\nAffirmed.\nBERLIN and HARTMAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE STAMOS" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Robert Guch, Assistant Public Defender, of counsel), for appellant James Kubick.", "Steven Clark, of State Appellate Defender\u2019s Office, of Chicago, for appellant Daniel Visnack.", "Brian A. David, of Chicago, for appellant Randall Weidner.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, James Veldman, and Karyn Stratton, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL VISNACK et al., Defendants-Appellants.\nFirst District (2nd Division)\nNos. 81\u20142952, 81\u20142976, 81\u20143068 cons.\nOpinion filed May 21, 1985.\nRehearing denied August 20, 1985.\nJames J. Doherty, Public Defender, of Chicago (Robert Guch, Assistant Public Defender, of counsel), for appellant James Kubick.\nSteven Clark, of State Appellate Defender\u2019s Office, of Chicago, for appellant Daniel Visnack.\nBrian A. David, of Chicago, for appellant Randall Weidner.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, James Veldman, and Karyn Stratton, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0113-01", "first_page_order": 135, "last_page_order": 149 }