delivered the opinion of the court:
Dеfendants Tedder and Nettles were charged with burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19 — 1), armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 2) and aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12 — 4). Their first trial resulted in a mistrial due to improper opening statements by the prosecutor. Following a second jury trial, defendants were found guilty as charged, except Nettles who was found not guilty of aggravated battery. Defendants were sentenced to a term of 6 to 18 years for burglary and 30 to 50 years for armed robbery. Tedder was also sentenced to 3 to 9 years for aggravated battery. Both defendants’ sentences were to be served concurrently.
Defendants raise the following issues on appeal: (1) they were denied their constitutional right to the effective assistance of counsel; (2) there was no probable cause for their arrests and the direct and derivative facts of the arrest should have been suppressed; (3) they were denied their constitutional right to a speedy trial; (4) the trial court erred in denying them use of a composite sketch for impeachment purposes; (5) they were not proven guilty beyond a reasonable doubt; (6) they were denied a fair trial by the prosecutor’s closing arguments; and (7) their sentences for armed robbery are excessive.
On August 12, 1976, at about 3:30 a.m., Mrs. Ruth Fruehling was awakened by a loud noise while she was alone in her home at 320 South Greenwood in Park Ridge, Illinois. She got up, turned on a light and walked to the front door to see if it was raining. She then turned on the light at the top of the basement steps and proceeded down the stairs to the basement. Before she reached the bottom of the stairs, the light went out and she was grabbed and told not to scream. When she cried out, she was pistol-whipped across the head for about five minutes which resulted in a deep gash on her forehead.
Defendants then demanded a coin colleсtion which they contended she had previously shown to another lady. When she denied knowledge of any such collection, Tedder, described as the short, muscular defendant, went upstairs to search the house while Nettles, identified as the tall, skinny defendant, remained in the basement with her. When the upstairs hall light was turned on again, Mrs. Fruehling noticed that both men had guns and flashlights and were wearing surgical gloves. She saw their faces because neither man wore a mask. Nettles kept a gun pointed at her for the next 20 minutes. He put his flashlight down on the steps, and it provided additional illumination in the basement. She noticed that Nettles had “deep penetrating eyes,” and was wearing round-toed beige earth shoes.
When Tedder, the defendant who beat her, returned, he stood close to her with his gun pointing at her. He was wearing a gray T-shirt with short sleeves and had tattoos on his arms. Tedder asked Nettles what to do with her. Nettles replied, “Do you want to silеnce her?” Tedder then threatened to kill her if she told anyone about the incident, and the two left through the basement door that they had earlier broken to gain entry. At various times that evening, the face of each defendant had been within nine inches of the face of Mrs. Fruehling.
After they left, Mrs. Fruehling realized that her head was bleeding profusely. She went upstairs to make a telephone call but found that her telephone cord had been cut, her bedroоm and dining room drawers ransacked and $117 stolen from her purse. She went to a neighbor’s house and called the police. Several stitches were required at the hospital to close her head wound.
On September 21,1976, Mrs. Fruehling viewed a lineup at the Area 6 police station in Chicago. When the curtains covering the one-way window of the lineup room were opened, she immediately recognized Tedder as the short, muscular intruder, and exclaimed, “Oh, my God. There’s one of them.” She then immediately identified Nettles as the tall, skinny intruder. She also identified defendants in court as the intruders in her basement that evening.
On cross-examination, Mrs. Fruehling recalled that she described the two assailants to Park Ridge policemen. One of the police officers had an “Identi-Kit,” Le., a sketch composed of various features of the human face. She admitted that she told the police officer that the eyes, ears, lips and nose of the two intruders were not similar. She further admitted that her observations of Tedder’s tattoos on direct examination differed from her testimony at the preliminary hearing, where she stated that she saw no marks on his arms. As to Nettles, she testified that on one occasion during the night of the crime, he held a small white card in front of his face in an attempt to mask his identity.
Detective Frank Koehler, a Chicago policeman had learned of the August 12, 1976, home invasion and had a physical description of the assailants. He and four other Chicago policemen arrested defendants on September 21, 1976, as they emerged from Tedder’s apartment. Later that same day, he conducted a lineup twice for Mrs. Fruehling to insure that no mistake was made in the identification of defendants.
Park Ridge Police Officer, Louis Sciarra, testified for the defense. He had a conversation with Mrs. Fruehling on August 12,1976, in which she described her assailants. Defendants’ trial counsel was not allowed to elicit testimony from Sciarra about the composite sketches he prepared at her direction, nor was he allowed to question Sciarra about the alleged similarities in the two sketches. Mrs. Fruehling separately described both men to Sciarra. Although she described both men as having similar facial characteristics, she told him that the eyes, nose and lips of the two men were different.
Opinion
The first issue that defendants raise concerns whether they were denied the effective assistance of counsel guaranteed under the United States Constitution. (U.S. Const., amends. VI, XIV.) This claim is premised upon both trial counsel’s failure to preserve for review certain issues raised at trial, and counsel’s alleged reliance on the disclaimer of waiver provision contained in his motion for new trial.
In Illinois, the standard for inadequate representation by counsel is whether thе representation is of such a character as to reduce the trial to a farce or sham. (People v. Virgil (1977),
In the instant appeal, no actual incompetence was shown by counsel’s failure to include certain issues raised at trial in the motion for new trial. Certainly, the choice of which issues, if any, to preserve for appeal is a matter of judgment on an attorney’s part. Normally, an attorney’s exercise of discretion or judgment at trial does not constitute incompetence. (People v. Virgil (1977),
The first issue that counsel failed to include in the motion for new trial was the allegеd lack of probable cause for defendants’ warrantless arrest, and the attendant suppression of the fruits of the arrest. This issue was argued vigorously by counsel at pretrial hearing and denied by the trial court.
An arrest without a warrant is proper if an officer has probable cause to believe that the person is committing or has committed an offense. (People v. Faulisi (1977),
In the instant case the totality of the facts and circumstances known to Officer Koehler at the time of the arrest reveals that he had probable cause to arrest Tedder and Nettlеs. During the first week of September 1976, he received sketches and physical descriptions of two men wanted for a home invasion occurring in Park Ridge, Illinois, on August 12,1976. Because he was then investigating another matter, Koehler paid little attention to this information. The next time he looked at the sketch was on or about September 21, 1976. Upon closer review, Koehler recognized one sketch as portraying Tedder. He then obtained the offense reрort from the Park Ridge police and noticed that the offenders wore surgical gloves during the crime. Koehler remembered that that was the modus operand! of Tedder, with whom he had dealt since 1971. Tedder was described in the report as 30 years old, muscular, agile, having a Southern accent and thick bushy eyebrows. Nettles was said to be tall, skinny and emaciated, and about 35 years old, Koehler realized that these descriptions matched those of Tedder and Nettles, whom he knew had been sharing an apartment at 844. W. Ainslie, Chicago, for the previous month. Armed with this information, Koehler and other Chicago police officers arrested defendants in front of Tedder’s apartment on September 21,1976. The sketch of Tedder was “one of the best Identi-Kit match-ups that I [Koehler] had ever seen.” The other sketch bore a similarity to Nettles and identified him when coupled with the physical description in the police report. Tedder, 34, was 5'5" tall and 160 pounds at the time of trial, while Nettles, 39, was 6'3" tall and weighed 150 pounds.
Although Koehler had no warrant for defendants’ arrest, he was aware that these men matched the physical descriptions and composite sketches reported by the victim. These factors, coupled with Koehler’s prior dealings with Tedder, supplied the probable cause for defendants’ arrest. (See People v. Philson (1979),
Since there was probable cause for their arrest, defendants’ pretrial motion to quash the arrest and suppress the evidence was properly denied. Consequently, the lineup and in-court identification of defendants, along with all property seized from them, was admissible into evidence.
Defendants’ second contention, raised at trial, but not included in the motion for new trial, is that they were improperly denied thеir motion for discharge for violation of their constitutional right to a speedy trial. (U.S. Const., amend. VI.) Defendants specifically argue that they were not promptly retried after the first trial, which resulted in a mistrial.
The constitutional right to a speedy trial cannot be defined in terms of an absolute or precise standard of time within which an accused must be given trial. (People v. Henry (1970),
In the instant case the delay between the date defendants were taken into custody, September 21,1976, and the beginning of jury selection for the first trial, May 20,1977, was not unreasonable, in that defendants were accountable for much of the delay. As to the period from mistrial, May 24,1977, to the date of retrial, August 16,1977, only 84 days elapsed. The first 35 days were unexplained by the State, but the parties agreed that the next 49 days were requested by the State because of the absence of a material witness, Police Officer Koehler. Nevertheless, the record reveals no prejudice to defendants as a result of the delay during this period, and defendants have pointed to none. Consequently, we find that the delay between mistrial and retrial was reasonable. (See Bazzell,
The final issue that defense counsel failed to include in the motion for a new trial was the trial court’s denial of defendants’ request to impeach Mrs. Fruehling’s identification testimony with the composite sketches prepared at her direction. Defendants claim that the sketches were admissible as prior inconsistent statements of Mrs. Fruehling, and that it was error to preclude their use of this impeachment.
The composite sketches in question were prepared by Officer Sciarra by use of an “Identi-Kit.” Although the record does not reveal the actual process by which these sketches were assembled our understanding of an “Identi-Kit,” gleaned from oral arguments, is as follows. An “Identi-Kit” consists of several series of individually numbered transparent plastic overlays. Each series represents a different facial feature of the alleged suspect. A witness selects one of the overlays from each of the series and places them together until an image resembling the suspect appears. This image is referred to as a “composite sketch” and can be photographed and sent to the other police officers at various locations. A composite sketch constructed from an “Identi-Kit,” as in this case, differs from the traditional artist’s sketch, which is a drawing made from an artist’s freehand interpretation of physical descriptions he receives from a witness.
The courts in Illinois have consistently held that it is error to admit a police artist’s sketch into evidence because thе sketch constitutes impermissible written hearsay evidence. (E.g., People v. Fair (1977),
Turning to the record in this case, we find that Mrs. Fruehling never affirmatively adopted the two finished composite sketches as her own. She told Officer Sciarra that the аssailants had different eyes, lips, and noses, yet Sciarra testified that the plastic overlays representing those features on the sketches of Tedder and Nettles were identical. At no time did Mrs. Fruehling express satisfaction with his efforts to match the descriptions she gave him with the finished composite sketches.
Because Mrs. Fruehling never made a clear and definite adoption of the sketches, we conclude that the trial court properly found thеm inadmissible for impeachment purposes.
The foregoing issues, even if raised by counsel in the motion for new trial, would not have affected defendants’ convictions. We therefore hold that counsel’s representation of defendants was effective, and defendants were not substantially prejudiced in this regard.
We now turn to other issues raised by defendants. Defendants contend that they were not proven guilty beyond a reasonable doubt. A verdict of guilty will not bе set aside unless the trial evidence is so improbable as to raise a reasonable doubt as to defendants’ guilt. (People v. Yarbrough (1977),
Mrs. Fruehling testified that the upstairs hall light and defendаnts’ flashlights provided sufficient illumination for her to identify Tedder and Nettles. When she was alone with Nettles for a period of 20 minutes, he was only a short distance away from her. She observed Tedder as he held her and pistol-whipped her, and later as he prepared to leave her basement. Because of these opportunities for observation, she immediately identified both defendants at the lineup and later in court. We find the evidence at trial not so improbable as to raise a reasonable doubt as to defendants’ guilt.
Defendants’ next issue, preserved in Tedder’s pro se motion for a new trial, deals with the closing arguments by the prosecutor which allegedly deprived defendants of a fair trial. Defendants specifically object to the following three comments made to the jury by the prosecutor:
“You heard an Assistant State’s Attorney talk. Why? Because the procedure in Cook County [sic] we dоn’t like to arrest innocent men. We don’t like to charge innocent men. And we don’t like to prosecute innocent men.
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The most important question that you can ask yourself is can you ever forget these faces. And I put it to you you cannot because I know I can’t.
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And let me submit this to you: I want you to think when you go back to that jury room of what’s going on in your home now and when you think about that, and the people that you’ve left alone or your relatives who are alone, you will come back with a finding of guilty.”
A prosecutor is allowed wide latitude in making closing arguments. (People v. Dykes (1978),
In the instant case, we initially note that no objections were made by defense counsel during the prosecutor’s closing arguments and any prejudice to defendants arising from thеse arguments may be considered waived. (People v. Simmons (1974),
Defendants challenge the prosecutor’s first two statements as improper because .they: (1) vouch for the strength of the State’s case by placing the credibility of the State’s Attorney’s Office behind the charge, and (2) inject the prosecutor’s personal feelings and various immaterial considerations into the case. A similar attack was made in People v. Skorusa (1973),
“I say to you now, ladies and gentlemen, that if we in conscience didn’t know for a fact that the defendant, Stanley Skorusa, shot and killed Irene Kowalkowski, you ladies and gentlemen wouldn’t be sitting here in judgment of him.” (Skorusa,
The court held that comment to be harmless error in light of the overwhelming evidence of guilt presented at the trial. The cases of People v. Fuerback (1966),
Defendants also assert that the prosecutor’s third comment was a blatant appeal to the jurors’ fears that was made solely in order to convict them. We disagree.
It is proper argument to urge the effective administration of law through vigorous law enforcement. (People v. Griggs (1977),
Defendants have raised several other contentions in Tedder’s pro se supplementary brief filed with this court. We have reviewed these сontentions and have found them to be without merit.
The final issue for review is defendants’ assertion that the sentences they received for armed robbery, 30 to 50 years in the penitentiary, are excessive. Defendants argue that the length of the sentences are unduly harsh in that they were independently sentenced for other crimes arising out of the same incident.
Sentencing is not a function of a reviewing court. This court will not substitute its judgment for that of a trial court merely bеcause it might' have imposed a different sentence. (People v. Perruquet (1977),
The instant defendants both have lengthy criminal backgrounds which include convictions for burglary and armed robbery. The present crimes for which they stand convicted involve the home invasion and severe beating of an elderly woman whom they threatened to “silence” if she went to the police. Considering the nature and circumstances of the offense and particularly the history and character of defendants, we cannot say that the sentences imposed in the case at bar are an abuse of discretion.
For the reasons stated, we affirm the judgment of the circuit court of Cook County.
Affirmed.
SULLIVAN, P. J., and WILSON, J., concur.