Appeal from the Circuit Court of Lake County; the Hon.
Lawrence D. Inglis, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
A jury found defendant, Leroy Epps, guilty of the offenses of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)) and attempted murder (Ill. Rev. Stat. 1981, ch. 38, par. 8-4(a)). Defendant was subsequently sentenced to a term of natural life imprisonment for the murder and a 60-year extended term of imprisonment for the attempted murder, with the sentences to be served consecutively.
On appeal, defendant raises three issues for this court's consideration: (1) that he was denied a fair trial because the trial court incorrectly determined that a 6-year-old prosecution witness was competent to testify; (2) that certain remarks of the prosecutor during closing argument denied him due process of law; and (3) that the trial court improperly made the 60-year extended-term sentence of imprisonment for attempted murder consecutive to the term of natural life imprisonment imposed for murder.
The body of the murder victim, Teresa Phillips, was found on the floor in the living room of her North Chicago apartment on the morning of March 5, 1982. Ms. Phillips' young son, Jimmy, who also lived in the apartment, had been struck in the head with a hammer, but survived the blow. Defendant was arrested later that same day and subsequently charged with the murder of Teresa Phillips and the attempted murder of Jimmy Phillips.
As defendant has not raised any issue on appeal relative to the sufficiency of the evidence, it is only necessary to detail those facts relevant to the issues raised.
Jimmy Phillips, who was six years old at the time of the jury trial, was a key witness for the prosecution. Before Jimmy testified to the events of March 5, he was examined outside the presence of the jury to determine whether he was competent to testify. On direct examination, Jimmy knew his first and last names, that he was living with his father, the school he attended and his present and past teachers' names, the grade he had just completed as well as the grade he was entering, and his age and birthday. He recited the alphabet and counted to 16. Occasionally Jimmy either gave no response or responded by nodding his head. After the State's Attorney told him he would have to say yes or no, however, he gave verbal answers to virtually all questions put to him. Jimmy said that he knew what telling the truth was and what telling a lie was, that it is good to tell the truth, and that he would tell the truth to the jury. When asked if he told lies or if he had ever been in trouble for lying, Jimmy answered in the negative.
On cross-examination Jimmy did not answer correctly when asked by defense counsel what day it was, and the number of days in a week and weeks in a month, but when asked, "Jimmy, what is a lie?", he responded, "When you don't tell the truth." Jimmy also said he had never told a lie.
Before the trial judge ruled on the question of Jimmy's competence, he asked if anybody wanted to say anything. Both the prosecutor and defense counsel answered no. The court then found Jimmy to be a competent witness. Defense counsel noted for the record that Jimmy responded appropriately only to those questions for which he was prepared.
Upon taking the stand to testify, Jimmy was asked several questions by the judge. He again answered that he understood the difference between telling the truth and telling a lie and that he would tell the truth. When asked, "What does it mean to tell the truth * * *?" Jimmy said, "I don't know," but when asked what it means to tell a lie, he responded, "When you don't tell the truth."
Jimmy then testified that during the night Teresa was murdered he woke up and saw defendant and that defendant hit him with a hammer while he was in his bed. He indicated where defendant had struck him by touching his head with his hand. Jimmy identified defendant in court. He also identified Teresa's eyeglass case which had been similarly identified earlier by Teresa's sister.
After Jimmy's testimony, defense counsel moved for a mistrial on the basis that Jimmy was an incompetent witness. The motion was denied.
• 1 Defendant's first contention is that the trial court incorrectly determined that six-year-old Jimmy Phillips was competent to testify. The State responds initially that defendant waived this issue by not objecting in the trial court to the competency determination. While defense counsel did not specifically object to Jimmy's testimony prior to its being given before the jury, it is evident that the preliminary competency hearing outside the presence of the jury was to determine his competency to testify and counsel did move for a mistrial on the basis that the witness was incompetent after Jimmy testified in court. The issue was preserved for appeal under these circumstances.
• 2 With respect to the question of Jimmy Phillips' competency to testify, the controlling factor that determines a youngster's ability to testify is the degree of a child's intelligence, rather than mere chronological age. A child may testify if he is sufficiently mature to receive correct impressions by means of his senses, to recollect and narrate intelligently, and to appreciate the moral duty to articulate the truth. (People v. Garcia (1983), 97 Ill.2d 58, 75, 454 N.E.2d 274; People v. Brewer (1984), 127 Ill. App.3d 306, 310, 468 N.E.2d 1242.) A court of review will not reverse the trial court's decision to allow a child to testify unless the lower court abused its discretion (People v. Garcia (1983), 97 Ill.2d 58, 75, 454 N.E.2d 274), or unless it is clear that the court misapprehended a legal principle (People v. Ballinger (1967), 36 Ill.2d 620, 622, 225 N.E.2d 10).
The record of the competency hearing reflects that Jimmy Phillips knew his name, where and with whom he lived, the name of the school he attended and the names of his teachers, what grade level he had attained, his birthday and current age. He could recite the alphabet and knew how to count. He was not able to give accurate responses to questions concerning the day of the week the hearing took place, how many days there are in a week and how many weeks there are in a month. Although Jimmy responded that he did not know what it meant to tell the truth when asked the question by the court, he consistently responded to the prosecutor, defense counsel, and the court that he understood the difference between telling the truth and telling a lie, that telling a lie is, "When you don't tell the truth," that he had never told a lie, and that he would tell the truth in court.
During the trial Jimmy recalled waking up in the middle of the night and described what happened to him. He pointed to the place where he had been struck. He identified defendant as his assailant and immediately recognized an eyeglass case as his mother's.
• 3 Based on the responses of the six-year-old witness to the questions of counsel and the court, we conclude that the trial court did not abuse its discretion when it allowed Jimmy Phillips to testify. An examination of the record of the preliminary competency hearing discloses that the boy possessed sufficient maturity, intelligence, and awareness to satisfy the test the courts have prescribed before a young child may testify at trial. (See, e.g., People v. Ballinger (1967), 36 Ill.2d 620, 622, 225 N.E.2d 10.) Also, the young witness' testimony during the trial clearly demonstrated that he possessed an adequate degree of ...