People v. Escobar , 168 Ill. App. 3d 30 ( 1988 )

JUSTICE LINN

delivered the opinion of the court:

Defendant, Gregory Escobar, was convicted of murder (HI. Rev. Stat. 1983, ch. 38, pars. 9 — l(aXl), (aX2)) following a jury trial in the circuit court of Cook County. The trial judge sentenced defendant to the penitentiary for a term of 40 years.

Defendant now appeals, contending: (1) double jeopardy principles bar his being retried after a first trial ended in a mistrial, (2) the evidence adduced at his second trial was insufficient to prove him guilty beyond a reasonable doubt of murder, (3) the trial judge erred in denying his motion in limine to preclude any reference at trial to polygraph examinations, and that subsequent references at trial to polygraph examinations were prejudicial errors, and (4) his sentence was improper and excessive.

We affirm the judgment of the trial court.

Background

Rudy Lozano and his family lived in the first-floor apartment of a two-flat building at 4035 West 25th Street in Chicago, Illinois. On the morning of June 8, 1983, Lozano was standing at his apartment door speaking with a male person. Minutes later, Lozano was fatally shot. The alleged offender fled on a bicycle. During his flight, the offender rode by Domingo Ochoa.

Chicago police officers arrived on the scene and obtained a description of the offender from Ochoa. They also obtained what appeared to be a material fingerprint from the Lozano home.

An informant led police to believe that Ken Fuentes was responsible for the shooting. Fuentes lived on the second floor of a two-flat building with his brother and girlfriend, Livia Ortiz. On July 1, 1983, the police picked up Fuentes and took him to a police station. The police also obtained and tested a handgun belonging to Fuentes. Fuentes, at first, told the police that he had his gun on the day that Lozano was killed. Later, however, after he learned that he was a suspect in the Lozano shooting, Fuentes changed his story and told police that Alfredo Olvera had possession of his gun at the time of the shooting incident. Ortiz joined and agreed with Fuentes in both his original and revised stories.

Olvera was Fuentes’ cousin. Olvera and his family lived in the first-floor apartment of Fuentes’ building. The police also took Olvera into custody. Olvera subsequently implicated defendant, also his cousin, in the Lozano shooting. Olvera claimed that he gave Fuentes’ gun to defendant on the day before the murder.

The police picked up defendant on the following evening, July 2, 1983. Without any police questioning, defendant volunteered that he owned a handgun and offered it to the police for testing. When the officers learned that the weapon was unregistered, they arrested defendant on a weapons violation charge. At the police station, officers interrogated defendant regarding the Lozano killing. After several hours of interrogation, defendant confessed to the alleged murder.

The police then placed defendant in a voice identification lineup. Lozano’s wife could not identify defendant’s voice as that of the offender. Further, in a visual lineup, Ochoa could not identify defendant as the offender who rode past him on a bicycle on the morning of the shooting.

Defendant’s first trial began on April 4, 1984. Lozano’s widow, Ochoa, Fuentes, his brother, Ortiz, several police officers, a ballistics expert, an assistant State’s Attorney, and the county coroner testified for the State. Additionally, defendant’s confession was read into evidence. The State’s evidence is summarized as follows.

On June 7, 1983, the day before Lozano was killed, defendant overheard a conversation between Olvera and others. Olvera offered $5,000 to anyone to kill the victim, because of business dealings between himself and the victim that fell through. Olvera also extended his offer to defendant. Later that night, defendant obtained a handgun from Olvera. The handgun belonged to Fuentes. Defendant took the gun to his apartment that night.

On the morning of June 8, 1983, defendant went to Fuentes’ apartment and obtained a blue 10-speed bicycle. He returned to his apartment and placed the pistol that he obtained from Olvera under his belt, covered by his shirt. Defendant then rode the bicycle to the victim’s home.

At Lozano’s building, defendant parked the bicycle against a fence. He went to the door of Lozano’s apartment and knocked and rang the doorbell. The victim answered the door. Defendant asked the victim for permission to enter and then asked for a glass of water. Once inside, defendant thrice asked the victim for the whereabouts of his wife. After receiving his water, defendant put down the glass, took out the gun and shot Lozano three times at close range. Defendant exited the victim’s apartment as he entered and fled on the bicycle to his own apartment.

Later that evening, defendant went to Olvera’s apartment, returned Fuentes’ gun, and asked for the $5,000 reward for killing Lozano. Olvera gave defendant $1,000 worth of cocaine as partial payment and promised to pay defendant the other $4,000 at a later date.

None of the State’s witnesses placed defendant at the Lozano home on the date of the killing. Additionally, the bullets that killed Lozano matched Fuentes’ gun and not the gun of defendant.

Defense witnesses were defendant himself and a fingerprint examiner. Defendant’s evidence was essentially that he was at home and asleep on the morning of the slaying. Defendant confessed to the murder charge because police officers beat and abused him. Additionally, defendant’s fingerprints did not match the fingerprint found in the Lozano household. The defense rested its case.

The record shows that the jury began its deliberations on April 10, 1984, after hearing closing arguments and receiving the trial judge’s instructions. At about 3 p.m. that day, the jury sent a note to the trial judge. The jurors asked the judge if they should consider the State’s “street files,” which somehow had gotten into the jury room. Included within the “street files” were police reports, gang photographs, polygraph examination reports, witness statements, newspaper articles about the trial, and other items of what appeared to be inadmissible evidence. The street files were contained in a cart la-belled on both sides “GANG CRIMES.”

The trial judge asked the foreman to bring all of the material that the jury viewed into his chambers. The foreman informed the judge that all of the jurors had examined all of the material. The foreman then returned to the jury room. The judge asked defense counsel if he should declare a mistrial because the jury had seen the inadmissible evidence. Defense counsel responded: “We’ll just have to proceed. We don’t want to jeopardize our client’s position.”

The trial judge called the jury into court. He questioned the jurors as to whether they could reach an impartial verdict. They responded in the affirmative. The trial judge again instructed the jury that it should consider only material admitted into evidence. He then ordered the jury to continue their deliberations.

The jurors were sequestered that evening. The next day, April 11, 1984, the jury deliberated from 9 a.m. to 6 p.m. The jury continued its deliberations the next day, April 12, 1984. At 10 a.m., the trial judge received a note from the jury stating that it was unable to reach a verdict. Defense counsel asked the judge to give the jury a Prim instruction, urging it to reach a verdict. (People v. Prim (1972), 53 Ill. 2d 62, 74-76, 289 N.E.2d 601, 608-10.) The trial judge refused the request. Instead, he, sua sponte, declared a mistrial. The judge did not make any further inquiries of the jury and did not discuss any other alternative with defense counsel.

Some time later, on April 24, 1984, defense counsel presented an objection to the trial judge’s sua sponte declaration of a mistrial and moved to dismiss the cause based on double jeopardy grounds — that following the mistrial, another trial was legally barred. The trial judge denied defendant’s request.

The record further shows that the second trial began on May 7, 1984. On May 10, 1984, based on the same evidence summarized above, the trial resulted in defendant being convicted of murder. The trial judge subsequently entered judgment on the verdict and sentenced defendant to a prison term of 40 years. Defendant appeals.

Opinion

.1

Defendant first contends that his retrial violated the double jeopardy clauses contained in both the Federal and Illinois Constitutions. Those clauses guarantee that no person shall be put in jeopardy twice for the same offense. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.) Defendant argues that since the trial judge in the instant case declared the mistrial after the jury was selected and sworn, jeopardy had attached and retrial was legally impossible. However, a mistrial order does not necessarily bar a second trial. We must examine the facts of this case to determine the validity of defendant’s double jeopardy claim. People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 507-08, 431 N.E.2d 353, 356.

There is no barrier to reprosecution if the mistrial was attributable to the defendant, by virtue of his or her motion or consent. In United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547, the United States Supreme Court described the applicable standard:

“jWJhere circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” 400 U.S. at 485, 27 L. Ed. 2d at 556, 91 S. Ct. at 557, quoted in Orenic, 88 Ill. 2d at 508, 431 N.E.2d at 357.

A

Defendant argues that he did not consent to the mistrial. He contends, rather, that he made a timely objection. As discussed above, the jury began its deliberations on April 10, 1984. Later that day, the trial judge learned that the jury examined the street files, determined that each juror still could reach an impartial verdict, and ordered them to continue their deliberations. The jury deliberated all of the next day.

On the morning of April 12, 1984, the trial judge received a note from the jury stating, “We would like to come back into court. We cannot reach a unanimous verdict.” The trial judge called out the jury and ascertained that the jury was deadlocked and had no hopes of reaching a verdict. The trial judge then stated, “Okay. Just go back to the jury room for a few seconds. I’ll have you right back out.” The record shows that the following proceedings then took place:

“THE COURT: Attorneys?

[Defense Counsel]: My suggestion would be to Prim the jury.

THE COURT: We’re wasting our time.

[Defense Counsel]: We’ve locked them up. There was a lot of evidence talked about. We could at least allow them to deliberate shortly, to see — -perhaps have a hearing on the Prim Instruction.

THE COURT: In light of what went on, what went back to the jury room and everything else, I’m going to declare a mistrial. Bring them out.

[The jurors were brought out.]

THE COURT: Okay. You may be seated. Since you were unable to reach a verdict now after approximately a day, day and a half, or whatever period of time you have been out, we’ll declare a mistrial and a hung jury, and another jury will have to decide it. You may go back to the jury room. Jurors withdrawn. Mistrial declared. Thank you.

THE COURT: Okay. We’ll recess. We’ll wait until 10:00 o’clock and start the rest of the call.

THE CLERK: State of Illinois versus Gregory Escobar.

[Defense Counsel]: Present before the bench is the defendant Gregory Escobar.

THE COURT: Let’s hold it on for a week and we’ll see what we want to do.

[Defense Counsel]: Not for trial, but—

THE COURT: No, to set a trial date, for any motions you want to make or whatever.

[Defense Counsel]: The 19th, Judge?

THE COURT: By agreement 4-19, * * *.”

The record further shows that the following proceedings occurred on April 19,1984:

“THE CLERK: The People of the State of Illinois versus Gregory Escobar.

[Defense Counsel]: *** At this time I’d ask leave to file our Motion to Dismiss. I’ve tendered a copy to the prosecution. If it would be convenient with the Court, I ask that it be held over.

[Prosecutor]: Fine, Judge.

THE COURT: We’ll hold it on until Tuesday, and I’ll rule upon it Tuesday, which would be the 24th. By agreement?

[Defense Counsel]: Yes, sir.

THE COURT: By agreement, then.”

The record further shows that on April 24, 1984, defense counsel finally argued his motion to dismiss the cause, raising the double jeopardy claim. The trial court denied the motion.

Defendant presents three alternative arguments as to why a retrial was legally inappropriate. He first contends that he made a timely objection, on double jeopardy grounds, to the trial judge’s declaration of a mistrial. He argues that his suggestion to give the jury a Prim instruction constituted a timely objection. We disagree. The purpose of the timely objection requirement here is to notify the trial judge of the double jeopardy issue, thereby giving the judge an opportunity to avoid or correct the error. At no time did defense counsel speak of double jeopardy during his brief colloquy with the trial judge. The suggestion of a Prim instruction, alone, is insufficient notice.

Defendant next contends that the trial judge did not give him an opportunity to object on double jeopardy grounds. Defendant argues that the trial judge, sua sponte, declared the mistrial immediately after defense counsel suggested the Prim instruction. Defendant notes additionally that immediately after the declaration, the trial judge further ordered a recess before defense counsel could make any objections. Defense argues that the April 24, 1984, hearing was the earliest available opportunity for defense counsel to raise his double jeopardy claim.

The record shows, however, that defense counsel had ample time to raise a double jeopardy objection before the trial judge declared a mistrial. Before he called the jury into the courtroom, the trial judge stated that he was going to declare a mistrial. The jurors were then brought out. The trial judge then declared a mistrial. Defense counsel could have raised his double jeopardy objection during this interval, but instead, he stood mute.

We additionally note that the trial court’s series of continuances until April 24, 1984, was no excuse for defendant’s failing to raise a timely double jeopardy objection. Defendant agreed to the continuances. A defendant “may not sit idly by and allow alleged irregular proceedings to occur without objection, and afterward seek to reverse his conviction by reason of those same irregularities.” People v. Mays (1962), 23 Ill. 2d 520, 525-26, 179 N.E.2d 654, 656.

Defendant also erroneously contends that his silence, before the trial judge declared the mistrial, did not constitute consent. Defendant relies on People v. Camden (1986), 140 Ill. App. 3d 480, 488 N.E.2d 1082, where the Appellate Court for the Fifth District held, as a matter of law, that mere silence does not constitute consent to a mistrial. (140 Ill. App. 3d at 485, 488 N.E.2d at 1085.) Our supreme court, however, reversed the appellate court and specifically held that a defendant’s failure to object to a mistrial, despite having an adequate opportunity to do so, and his course of conduct after the declaration of the mistrial, can constitute acquiescence to the mistrial. People v. Camden (1987), 115 Ill. 2d 369, 378-79, 504 N.E.2d 96, 100.

Applying the above principles to the instant case, we conclude that defendant’s conduct constituted acquiescence to the mistrial. We hold, therefore, that defendant implicitly consented to the mistrial order.

B

Defendant also contends that the State was guilty of overreaching at his first trial. Prosecutorial or judicial overreaching is a bar to retrial, whether or not a defendant consented to the mistrial. (United States v. Jorn (1971), 400 U.S. 470, 485, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557.) “Overreaching” is prosecutorial or judicial misconduct: (1) specifically designed to provoke a mistrial in order to obtain a second, and perhaps more favorable, opportunity to convict the accused. Further, overreaching is established by the trial judge making a finding of fact. Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083.

Defendant contends that the State intentionally allowed the jury to view the street files. Defendant notes that the material was in the State’s evidence cart. Defendant further notes that he never had access to the State’s files; the State had sole possession and complete control of the material. Defendant concludes, therefore, that the State intended the jury to view the material and that such conduct constituted overreaching.

After reviewing the record, we conclude that no overreaching of any kind was present in defendant’s first trial. The experienced trial judge specifically found that neither the State nor any person intentionally sent the street files into the jury room. The weight of the evidence supports his finding. In conclusion, we hold that double jeopardy principles did not bar the reprosecution of defendant.

II

Defendant next claims that all of the evidence adduced at the second trial, including his confession, was insufficient to prove him guilty beyond a reasonable doubt of murder. He contends that: (a) his confession was involuntary, and (b) all of the remaining evidence was insufficient to corroborate his confession.

A

During his second trial, defendant challenged the voluntariness of his confession. He argued that the police never advised him of his right to counsel, handcuffed him to a wall and beat him, interrogated him for 15 hours, and confronted him (18 years old) with two older police officers, urging him to confess.

An individual who is subjected to custodial police interrogation concerning matters that might tend to incriminate him is entitled to the procedural safeguards that the United States Supreme Court outlined in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The person interrogated may waive these rights, but a heavy burden rests on the State to show that he waived his constitutional rights knowingly and intelligently. (384 U. S. at 475, 16 L. Ed. 2d at 724, 86 S. Ct. at 1628.) We must, therefore, initially determine whether defendant knowingly, intelligently, and voluntarily waived these rights. People v. Martin (1984), 102 Ill. 2d 412, 426, 466 N.E.2d 228, 234.

Whether a defendant makes a statement voluntarily depends on the totality of the circumstances. The test is whether the defendant made the statement freely, voluntarily and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. Our standard of review is not the criminal standard of beyond a reasonable doubt, but rather, that of manifest weight of the evidence. People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606, cited in Martin, 102 Ill. 2d at 426-27, 466 N.E.2d at 234.

After reviewing the record, we conclude that defendant voluntarily confessed to the murder. The record shows that the police gave defendant his Miranda warnings before they questioned him. Police officers testified that they brought defendant to the station between 6:30 p.m. and 7 p.m. on July 2, 1983. At approximately 7:30 p.m., police officers gave defendant his Miranda warnings and then questioned him for only 10 minutes. The record further shows that the police took defendant to another station at around 10:30 p.m., but returned him at approximately 1:15 a.m. A police officer gave food to defendant at around 1:30 a.m.

Between 1:30 a.m. and 2 a.m., police officers again gave defendant his Miranda warnings. The police then told defendant Olvera implicated him in the murder. Defendant denied Olvera’s allegations and the officers left the room. At approximately 2:30 a.m., the police brought Olvera and Fuentes to speak with defendant. Defendant reacted violently. Olvera and Fuentes left defendant, whom police then photographed and fingerprinted.

At approximately 3:15 a.m., police officers again gave defendant his Miranda warnings. Defendant then confessed to the murder. Defendant then repeated the confession so that a police officer could take notes. An assistant State’s Attorney arrived at the station at 6 a.m. to hear defendant’s confession, after advising defendant of his rights. The record contains no evidence that the police tortured or coerced defendant in any way. We conclude, therefore, that the manifest weight of the evidence supports the voluntariness of defendant’s confession.

B

Defendant further contends that the evidence adduced at trial was insufficient to corroborate his confession. Defendant argues that the State’s evidence was entirely circumstantial. He stresses that no witness saw him shoot the victim or even saw him at the victim’s home. Further, defendant did not possess the murder weapon at the time of his arrest.

For a conviction based on a confession to be upheld, the confession must be corroborated. In Illinois, proof of the corpus delicti satisfies the corroboration requirement. (People v. Willingham (1982), 89 Ill. 2d 352, 358-59, 432 N.E.2d 861, 864.) The corpus delicti is the body or substance of a crime, which ordinarily includes the act and the criminal agency. People v. Lambert (1984), 104 Ill. 2d 375, 378, 472 N.E.2d 427, 428.

The State cannot prove the corpus delicti by defendant’s confession alone. There must be some independent evidence or corroborating evidence outside of the confession which tends to establish that a crime occurred. If such evidence exists, and that evidence tends to prove that the offense occurred, then that evidence, if it corroborates the facts contained in the defendant’s confession, may be considered together with the confession to establish the corpus delicti. (104 Ill. 2d at 378-79, 472 N.E.2d at 428-29, citing Willingham, 89 Ill. 2d at 359-61, 432 N.E.2d at 864-65.) We add that the corroborating evidence can be entirely circumstantial. People v. Lueder (1954), 3 Ill. 2d 487, 488,121 N.E.2d 743, 744.

The corpus delicti for the crime of murder is the fact of death and the fact that the death was produced by the criminal agency of some person. (People v. Melquist (1962), 26 Ill. 2d 22, 28, 185 N.E.2d 825, 828-29.) The record contains, of course, sufficient evidence to establish the corpus delicti for murder. The victim’s body was found, shot three times at close range. Further, the same evidence, with the other evidence adduced at trial, corroborated the facts contained in defendant’s confession. We hold that the State established the corpus delicti and that the trial judge did not err in admitting defendant’s confession.

We additionally note that this cause was tried to a jury. Our courts have “often held that it is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence.” (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733, 734.) As a result we will not set aside a jury verdict unless it is palpably contrary to the weight of the evidence, or so unsatisfactory as to justify a reasonable doubt of guilt. (People v. Hairston (1970), 46 Ill. 2d 348, 366, 263 N.E.2d 840, 851.) After reviewing all of the evidence, we conclude that defendant was proved guilty beyond a reasonable doubt of murder.

Ill

Defendant next contends that the trial judge abused his discretion by (a) denying his motion in limine to preclude any reference at his second trial to polygraph examinations, and (b) allowing the jury to hear such references at trial.

A

During the first trial, a State’s witness made a reference to defendant’s taking of a polygraph examination. As a result, defendant presented to the trial judge a motion in limine to preclude any reference to polygraph examinations at his second trial. The trial judge denied the motion.

A motion in limine is addressed to the trial court’s inherent power to admit or exclude evidence. If the rules of evidence do not require exclusion of the disputed material, then the trial judge must deny the motion. If the material should be excluded, however, the trial judge has the discretion to either grant or deny the motion. (People v. Williams (1978), 60 Ill. App. 3d 529, 533, 377 N.E.2d 367, 370.) A trial judge has the discretion to reserve ruling on evidentiary matters until they are presented at trial. (People v. Riper (1970), 127 Ill. App. 2d 394, 398, 262 N.E.2d 141, 144.) A court of review will not reverse a trial judge’s grant or denial of a motion in limine absent a manifest abuse of discretion. Williams, 60 Ill. App. 3d at 532, 377 N.E.2d at 370.

In the instant case, we cannot say that the trial judge manifestly abused his discretion. The one reference to a polygraph examination during the first trial was made during defendant’s cross-examination of a State’s witness. It was well within the trial judge’s discretion, therefore, to deny the motion and rule on the matter only if presented at the second trial.

B

We next consider the effect of the references to polygraph examinations in defendant’s second trial. There were two. Fuentes, during his direct examination, testified initially that his handgun, the murder weapon, was in his possession at the time of the murder. However, after the police told Fuentes that his gun was the murder weapon, he remembered that he loaned the gun to defendant. During cross-examination, defense counsel stressed Fuentes’ change of story. On redirect, the prosecutor asked Fuentes how he remembered that he did not have the gun on the day of the murder. In answering the question, Fuentes recounted the events of the day that he was questioned, including a brief reference to his taking a polygraph examination.

Polygraph evidence is inadmissible in Illinois, even by stipulation. (People v. Baynes (1981), 88 Ill. 2d 225, 240, 430 N.E.2d 1070, 1077.) Further, the proscription of its use, by any means, applies to any participant in the trial process, be it judge or jury. People v. Yarbrough (1982), 93 Ill. 2d 421, 426-27, 444 N.E.2d 493, 495.

Defendant now contends that he did not solicit Fuentes’ reference to the polygraph examination. Defendant argues that he was questioning Fuentes why he had changed his story, and that the answer to that had nothing to do with a polygraph examination. We disagree.

The trial court ruled that Fuentes’ remarks resulted from defense counsel’s “persistent questions.” Both the record and the applicable law support the trial judge’s ruling. A defendant cannot complain of the admission of testimony which was invited by the defendant’s own trial tactics. Further, a defendant who procures or invites the admission of evidence, even though it be improper, cannot be heard to complain about it on appeal. People v. Jones (1983), 119 Ill. App. 3d 615, 628, 456 N.E.2d 926, 936-37.

In the instant case, Fuentes merely recounted the events surrounding his change of story. One of these events was his polygraph examination. It would not have come out, but for defense counsel’s questioning in this specific area. Defendant cannot now complain of the invited testimony.

Also, during closing argument, the prosecutor recounted Fuentes’ testimony, including the reference to the polygraph examination. The State claims that defendant waived this issue on appeal because he failed to object during closing argument. Defendant claims that his unsuccessful motion in limine preserved the issue for review. This is error. A motion in limine does not preserve evidentiary questions for review. People v. Armstrong (1983), 111 Ill. App. 3d 471, 478-79, 444 N.E.2d 276, 281.

Supreme Court Rule 615(a), however, provides an exception to the rule of waiver where there has been “plain error.” (107 Ill. 2d R. 615(a).) Under this rule, we may elect to consider errors that have not been properly preserved for review where the evidence at trial is closely balanced or where the errors were of such magnitude that a defendant was denied a fair trial. (People v. Lucas (1981), 88 Ill. 2d 245, 250-51, 430 N.E.2d 1091, 1093-94.) The admission of polygraph evidence is reviewable under the plain error rule. People v. Baynes (1981), 88 Ill. 2d 225, 244-45, 430 N.E.2d 1070,1079.

After carefully reviewing the record, we conclude that the strength of the State’s evidence rendered harmless the prosecutor’s erroneous remark. People v. Poliquin (1981), 97 Ill. App. 3d 122, 133, 421 N.E.2d 1362, 1371.

IV

Defendant lastly contends that the trial judge abused his discretion in imposing a 40-year prison sentence because (a) the trial judge violated provisions of the Criminal Code, and (b) his sentence was excessive.

A

Defendant first contends that section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5— 3.2) provides for aggravating factors that must be present in a case before a trial judge can impose a sentence greater than the statutory minimum. Defendant argues that none of these factors were present in his case and, therefore, he should receive a new sentencing hearing.

Defendant misreads the statute. Defendant’s 40-year prison sentence was within the statutory range. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—l(aXl)(a).) Section 5 — 5—3.2, upon which defendant relies, explicitly states that a trial judge must consider these aggravating factors “as reasons to impose a more severe sentence under Section 5-8-1.” (111. Rev. Stat. 1983, ch. 38, par. 1005-5-3.2.) Since defendant’s sentence was within the statutory range, section 5 — 5—3.2 does not apply.

Relying on section 5 — 4—1(c) of the Unified Code of Corrections, defendant contends that the trial judge erred also by not specifying on the record the factors it considered in determining his sentence. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 4—1(c).) This contention fails. Our supreme court has held this section to be directory rather than mandatory. People v. Davis (1982), 93 Ill. 2d 155, 162, 442 N.E.2d 855, 858.

B

Defendant also contends that his 40-year prison sentence was excessive. Defendant points to his age and lack of prior convictions.

Supreme Court Rule 615(b)(4) authorizes this court to reduce a criminal sentence. (107 Ill. 2d R. 615(b)(4).) However, a sentencing decision is a matter of judicial discretion and, so long as the sentence is within the statutory limits, we hesitate to exercise our power to reduce it absent a finding that the trial court abused its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) The trial judge is normally in a better position to determine punishment than a reviewing court. A trial judge properly bases a sentence on the particular circumstances of each individual case, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. The trial judge has the superior opportunity to consider these factors; we have before us only the cold record. 68 Ill. 2d at 154, 368 N.E.2d at 884.

Further, “[a] rebuttable presumption arises that the sentence imposed was proper and is only overcome by an affirmative showing that the sentence imposed varies greatly from the purposes and spirit of the law or is manifestly violative of constitutional guidelines.” People v. Jenkins (1984), 128 Ill. App. 3d 853, 857, 471 N.E.2d 647, 650, citing People v. Gallardo (1983), 112 Ill. App. 3d 764, 775-76, 445 N.E.2d 1213, 1222.

After reviewing the record in the instant case, we cannot say that the trial judge abused his discretion. The trial judge sentenced defendant to 40 years in the penitentiary. As we noted earlier, this was within the statutory range. The record shows that the trial judge considered many different factors before imposing sentence. We hold that defendant’s prison sentence of 40 years was proper and not excessive.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON, J., concurs.