author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL GOMEZ, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—3196
    Opinion filed September 30, 1992.

      Irving Miller, of Ryan, Miller & Trafelet, P.C., of Chicago (Mary Ellen Dienes, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Christine Perille, Special Assistant State’s Attorney, and Renee Goldfarb and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant, Daniel Gomez, appeals from his convictions for possession of cannabis and possession of cocaine with intent to deliver. We consider (1) whether the trial court erred in failing to conduct an evidentiary hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, to determine whether the search warrant was based on a false affidavit; (2) whether the defendant was denied due process of law when the trial court denied a pretrial discovery motion, restricted the cross-examination of a State witness, and did not allow the jury to view certain defense exhibits during their deliberations; (3) whether the defendant was proved guilty beyond a reasonable doubt; and (4) whether the defendant’s 30-year sentence was excessive.

Officer Charles Bartucci prepared a complaint for a search warrant of the defendant’s apartment based upon the information given to him by a confidential informant. In the affidavit supporting the complaint, Bartucci stated that in the previous two months, the informant gave him information on two occasions which resulted in one arrest. Bartucci stated that on December 22, 1988, the informant went to the first-floor rear apartment at 3004 West Addison Street and was allowed entry into the apartment by a white male known as “David.” David asked the informant how many one-sixteenths of cocaine he wanted to purchase for $100. The informant told David that he just wanted one and gave David $100. David retrieved one clear plastic bag containing white powder from a metal box in the living room, and the informant observed at least 30 more clear plastic bags with white powder in the same metal box. The informant snorted some of the cocaine and told Bartucci that he received a “good high” from it. David asked the informant to go with him to the second-floor rear apartment. David opened the door to the second-floor apartment with a key that he had in his pocket. David showed the informant a large clear plastic bag which contained about 200 clear plastic bags of crushed white powder. David bragged that once sold, this would serve as his vacation money. David told the informant to come around anytime because he always had a good supply on hand.

The trial judge issued a warrant to search the defendant’s second-floor rear apartment which was executed on December 22, 1988. The police recovered cocaine, cannabis, and $13,980 in cash. The defendant was arrested and charged with possession of cannabis and possession of cocaine with intent to deliver.

The defendant moved to quash the search warrant and argued that the affidavit supporting the warrant contained false statements and requested an evidentiary hearing pursuant to Franks. The defendant’s motion was supported by 11 additional search warrant complaints which were sworn to by Officer Bartucci. The complaints illustrated that in nine cases, Bartucci used language which was very similar to that in the defendant’s complaint when describing what the alleged subjects stated to the informants. The motion was also supported by the defendant’s affidavit which stated that he lived in the second-floor rear apartment but had never been in the first-floor apartment, did not have a key to the first-floor apartment, that he was never known by the name of David, that no one had a key to his apartment other than his landlord, and he never gave a key to his apartment to anyone named David. Also included was the affidavit of Visut Voratanitkitkul, who stated that he is the owner of the building at 3004 West Addison, was the defendant’s landlord, that the defendant was the tenant in the second-floor rear apartment until his arrest on December 22, 1988, that Salvador Tinajero was the tenant in the first-floor rear apartment until he moved out two weeks before the defendant’s arrest, that no one occupied the first-floor rear apartment, that no one named David occupied that apartment, that no one had keys to the first-floor apartment, that no one other than the defendant was given keys to the second-floor apartment, and that on December 22, 1988, the police caused much damage to the basement and the first- and second-floor rear apartments in his building.

The trial judge held that the defendant had failed to make a sufficient preliminary showing to warrant an evidentiary hearing and denied the motion.

The defendant also filed a discovery motion in which he requested all of the police reports written by Officer Bartucci in 1988, 1989, and 1990 to determine whether the language which Bartucci used to describe the events in other cases involving the purchase of narcotics by undercover agents was identical to the language Bartucci used in the instant case. The trial judge denied the defendant’s discovery request as he found it to be overly broad and overly burdensome.

At trial, Visut Voratanitkitkul testified that in June 1988, he leased the second-floor rear apartment to the defendant. The defendant paid his rent only once and never asked Visut to make any repairs in his apartment between June and December of 1988. The first-floor rear apartment had been rented to another tenant who moved out in November 1988.

Police officers Bartucci and Mazur testified that at 11 p.m. on December 22, 1988, they executed a search warrant for the second-floor rear apartment at 3004 West Addison. They were accompanied by Officers Garcia, Gonzales, Brown, Newman, Nelson, and Burn, who assisted in securing the building and executing the warrant. Bartucci knocked on the door of the second-floor apartment three times and announced that they were the police and they had a warrant. The officers did not hear a response and Bartucci used a sledgehammer to open the door. Bartucci saw a light on in the kitchen, and when he entered the room, the defendant and Hernandez, a codefendant whose trial was severed from the instant case, were seated at the kitchen table. The officers saw four plastic bags containing white powder and American currency on the table in front of the defendant. The defendant and Hernandez were arrested. Officer Mazur recovered four plastic bags containing crushed green plants and an electronic scale from the floor near the table. Officers Newman and Nelson also entered the apartment and searched the remainder of the apartment, recovering no other drugs or currency. The substances were taken from the apartment, inventoried at police headquarters, and delivered to the crime lab.

Gwendolyn Brister, a chemical analysis expert, testified that on December 28, 1988, she was assigned to analyze seven plastic bags of white powder and five plastic bags of alleged marijuana. Brister analyzed one bag of white powder, weighing 1,003.7 grams, and indicated that in her opinion, the substance was cocaine. Brister stated that since the “highest sentencing weight is 900 grams for all practical purposes,” she only did preliminary tests on the white powder in the other bags and all of these tests indicated that they also contained cocaine. Brister also analyzed and confirmed that the other bags contained cannabis. The plastic bags were turned over to the fingerprint department.

Officer Godina, an expert in laser testing, tested the bags for fingerprints using a laser methodology and found no fingerprints. Using a different technique, Godina discovered a fingerprint on one of the bags. The fingerprint did not match that of either defendant.

Visut Voratanitkitkul testified for the defense that he returned home at 1 a.m. on December 23, 1988, and entered through the rear of the building. He discovered considerable damage to his building: damage to the front door of the first-floor rear apartment, damage to the front door of the second-floor rear apartment, and the locks on four individual storage sheds in the basement were broken. He took photographs of the damage to his building which were admitted into evidence and published to the jury.

Jose Hernandez, brother of codefendant Hernandez, testified that when he -first arrived at the defendant’s apartment at 10:30 p.m. on December 22, 1988, he did not see anything on the kitchen table. About 30 minutes later, he went to pick up a pizza, and when he returned, he was searched and handcuffed by officers in the apartment. About 20 minutes later, two officers came in the rear door of the apartment carrying book bags. They placed the bags on the kitchen table, opened them, laughed, and said “look what we found here.” One officer removed white stuff from the bag, and another removed what appeared to be marijuana. Hernandez testified that he did not see a scale or any money. After an hour had elapsed, the officers removed Hernandez’ handcuffs and instructed him to remain in the apartment for an additional 15 minutes after they left. Hernandez followed their instructions and then left the apartment.

The defendant first challenges the denial of his motion to quash the search warrant brought under Franks (438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674). The defendant contends that he was entitled to an evidentiary hearing on his pretrial motion to suppress. In Franks, the United States Supreme Court recognized that although an affidavit supporting a search warrant is presumed valid, a defendant has a limited right to challenge the veracity of the affidavit. The Court held that “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” (Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676.) The Illinois Supreme Court in People v. Lucente (1987), 116 Ill. 2d 133, 506 N.E.2d 1269, addressed the issue of what is required in order for the defendant to make “a substantial preliminary showing.” The court stated that while it is true that the defendant’s ultimate burden is to show by a preponderance of the evidence that the affiant-officer made deliberate or reckless false statements, Franks does not require that the defendant disprove every other possibility at the preliminary stage. As is true in the instant case, the warrant affidavit at issue in Lucente included information which the officer attributed to a confidential informant. The court noted that in such cases, where an informant’s identity is unknown, and the defendant cannot offer the informant’s testimony as proof that the officer lied, a defendant lacks the necessary information to determine the source of the allegedly false statements. This reality. affects the burden of proof which a defendant can reasonably sustain in order to achieve a hearing and to protect against perjurious warrant applications.

The court defined the precise standard of proof required of the defendant to warrant a hearing as “somewhere between mere denials on the one hand and proof by a preponderance on the other.” (Lucente, 116 Ill. 2d at 152, 506 N.E.2d at 1277.) The court noted that the decision in any given case is subjective and must be based on a careful balancing of the statements in the warrant affidavit versus those in support of the defendant’s challenge to the warrant. (Lucente, 116 Ill. 2d at 153, 506 N.E.2d at 1277.) The judgment of the trial judge will not be disturbed if it is exercised within permissible limits.

With these principles in mind, we turn to the showing made by this defendant. As we described earlier in the opinion, the defendant submitted 11 search warrant complaints completed by Officer Bartucci. Nine of the complaints alleged that the individuals who were selling drugs told the informants basically to come back anytime, since they always had a good supply on hand. Specifically, the warrants read as follows:

“1. *** ‘come over anytime I always have a real good supply on hand.’
2. *** ‘come anytime day or night that same always had a good supply of cocaine on hand.’
3. *** ‘we always have a supply.’
4. *** ‘he always keeps % o.z’s or 1 o.z’s on hand, and to come anytime.’
5. *** ‘come anytime I always have a supply either here or upstairs.’
6. *** ‘she always has a good supply of cocaine on hand and c/i could stop over any time of day or night.’
7. *** ‘stop by any time I always have some on hand.’
8. *** ‘come anytime I always have a good supply on hand.’
9. *** ‘come around anytime because he always has a good supply on hand.’ ”

The defendant argues that it is improbable that in his case, and nine other cases, the drug dealer would essentially make the same parting remark to the informant. Additionally, the defendant submitted affidavits which illustrated that his name, Daniel, was not the same as the person named in Bartucci’s affidavit, namely, David. Further, the defendant did not live in the first-floor rear apartment where the drug sale took place and did not have a key to the apartment. The landlord’s affidavit stated that the first-floor apartment was vacant and no one had a key.

The State argues that the defendant did not make a substantial preliminary showing and that the trial court in so ruling did not abuse its discretion. We disagree. We believe that the defendant’s proof was sufficient to warrant a preliminary hearing. Balancing the officer’s affidavit with the defendant’s affidavits and Bartucci’s search warrant complaints, we find that while the defendant did not disprove every possibility, he did provide evidence that he was not the named party in Bartucci’s affidavit, he did not live where the transaction occurred, nor did he have a key to that apartment, and the transaction occurred in an apartment which was not rented at the time. Additionally, the similarities in the search warrants which were submitted provide further evidence to warrant a preliminary hearing. Therefore, we find that the trial court abused its discretion when it denied the defendant the opportunity to challenge the veracity of the officer’s affidavit at a hearing. Accordingly, we vacate the judgment and remand.

In the event that the defendant does not meet his burden of proof at the evidentiary hearing and the warrant is upheld, we address the issues which the defendant raises on appeal with regards to his trial.

The defendant alleges that he was denied due process of law at various stages of his trial when the trial court inhibited his presentation of his defense to the jury. We only address the defendant’s arguments where he cited legal authority. 87 Ill. 2d R. 341(e)(7).

The defendant first argues that the trial judge’s denial of his pretrial motion for discovery interfered with his ability to impeach Officer Bartucci. The discovery request was for all of Officer Bartucci’s reports over a three-year period of time in cases where Bartucci found drugs in open view. The defendant argues that in other reports which he had the opportunity to review, every time Bartucci arrested an individual in a drug case and found no documentation of the person’s residence, he would state in the report that the person was seated at a table with the narcotics in plain view. The defendant needed all of Bartucci’s case reports to impeach his credibility at trial and to advance his theory that the officers brought the drugs into Gomez’ apartment and essentially framed him.

In deciding the discovery motion, it is the trial court’s duty to determine the relevance and materiality of the materials and whether the request is unreasonable or oppressive. (People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 396 N.E.2d 17.) The trial court has broad discretion in ruling on issues of relevance and materiality, and its decision will not be overturned absent an abuse of discretion. (People v. Freeman (1987), 162 Ill. App. 3d 1080, 516 N.E.2d 440.) We do not believe the trial court abused its discretion in denying the instant discovery request. Considering the nature of drug arrests, the relevance of all of Bartucci’s reports over a three-year period to the defendant’s guilt in the instant case is questionable. The defendant did have the opportunity .to impeach Bartucci at trial with other matters and amply argued his theory of the case before the jury. Moreover, Officer Mazur was also present when the defendant was arrested and corroborated Bartucci’s account of the events. Thus, we do not believe that the denial of the defendant’s discovery request was material to the finding of the defendant’s guilt.

The defendant next contends that he was denied due process when he was not allowed to use a photograph of the door to the defendant’s apartment during his cross-examination of Officer Bartucci. The photograph was taken by the landlord after the defendant’s arrest and illustrated the damage to the door caused by the officers’ forced entry into the apartment. The defendant argues that he could not properly impeach Bartucci’s credibility by showing that the damage to the door was greater than what would have resulted if officers had entered as Bartucci testified.

The scope of cross-examination is within the trial court’s discretion. (People v. Young (1983), 118 Ill. App. 3d 803, 455 N.E.2d 845.) We do not believe that the trial court abused its discretion in the instant case.

The defendant further contends the trial court erred when it refused to send the photographic exhibits to the jury room during jury deliberations even after the jury asked to view the photographs in a written note to the judge. Specifically, the jury requested to see the landlord’s photograph depicting the damage to the defendant’s front door and the photograph depicting the damage to the rear door.

Initially, we note that the trial court has considerable discretion in deciding what exhibits should be given to the jury and this decision will not be reversed on appeal unless there was an abuse of such discretion prejudicial to the defendant. People v. Allen (1959), 17 Ill. 2d 55, 160 N.E.2d 818; People v. Castillo (1976), 40 Ill. App. 3d 413, 352 N.E.2d 340.

The record indicates that the trial judge did not send the photographs back to the jury room because, during trial, 18 photographs taken by the landlord illustrating the damage to the building were admitted into evidence and published to the jury. Each individual juror was allowed to examine each photograph as long as he or she desired. The judge admonished the jury to view the photographs carefully since this may be the last time they had the opportunity to observe them. The judge was concerned with sending two of the photographs back to the jury room and not the remaining 16. The defendant argues that he was prejudiced because the photographs which depicted the damage to the defendant’s front and rear apartment doors demonstrated that the police version as to where the narcotics were found was a fabrication.

We believe that because the photographs at issue were admitted into evidence, published to the jury, and the defendant argued his theory of the case during closing argument, he was not prejudiced by the judge’s decision not to send the photographs back to the jury. Thus, we find that the judge did not abuse his discretion.

The defendant next argues that the State failed to prove his guilt beyond a reasonable doubt because the State did not prove that the narcotics were in the defendant’s possession and the State did not prove the identity of the controlled substance. We disagree and conclude that there was sufficient evidence to support the jury’s verdict.

In evaluating the sufficiency of proof upon review, this court must assess whether the evidence, when viewed in the light most favorable to the State, allows a rational trier of fact to find the elements of the offense beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) The jury heard the testimony of Officers Bartucci and Mazur that they entered the defendant’s apartment on December 22, 1988, and found the defendant seated at the kitchen table and recovered plastic bags which contained cocaine and marijuana, a scale, and American currency. The jury heard evidence that the defendant leased the apartment in which the drugs were recovered. The jury also heard the testimony of Hernandez, who stated that the police brought the drugs into the defendant’s apartment and then arrested him. The jury also viewed 18 photographs which displayed damage to the entrance doors to the first- and second-floor apartments and areas of the basement. In his brief, the defendant has argued the evidence at trial, pointed out the inconsistencies, and how the evidence supports his theory of the case. The jury heard the same information during the defendant’s closing argument at trial. It is the function of the jury as trier of fact to determine the credibility of witnesses and to resolve any conflicts or inconsistencies in the evidence. It is not the function of the reviewing court to retry the defendant. (People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) We believe a rational trier of fact could have found, beyond a reasonable doubt, that the narcotics were in the defendant’s actual possession.

The defendant has also argued that the State did not prove the nature or the weight of the substances alleged to be cocaine and failed to prove a continual chain of custody for the alleged cocaine. We disagree. The State presented the testimony of expert witness Brister, who testified that in her analysis of one bag of white powder weighing over 1,000 grams, within a reasonable degree of scientific certainty, the substance was cocaine. She also performed preliminary tests on the other bags of white powder and testified that all of the preliminary tests indicated that the substances were cocaine. This evidence was sufficient for a rational trier of fact to have found, beyond a reasonable doubt, that the recovered white powder was cocaine. Similarly, the jury heard the testimony of Bartucci and Brister attesting to the chain of custody from the time the drugs were recovered through the storage of the drugs after they were tested. In establishing a chain of custody, the State is required to demonstrate a reasonable probability that the evidence has not been changed in any important respect. (People v. Valentin (1978), 66 Ill. App. 3d 488, 384 N.E.2d 67.) We believe the State met its burden of establishing the chain of custody for the cocaine.

Finally the defendant contends that the 30-year sentence is excessive. It is well established that the trial court has wide discretion in sentencing and is in a superior position to determine what is proper. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Del Percio (1983), 118 Ill. App. 3d 539, 454 N.E.2d 1169.) The sentence imposed by the trial judge was within the statutory range for possession of a controlled substance with intent to deliver of not less than 15 years nor more than 60 years. At the time of the sentencing hearing, the judge heard stipulated testimony that at the time of his arrest in the instant case, the defendant was on bond in another case where he was allegedly in possession of 477 grams of cocaine. The judge considered as a mitigating factor that the defendant had no other criminal convictions. The judge noted that an aggravating factor was the seriousness of the offense and the defendant’s intentional involvement in a business which results in great societal harm. We do not believe the judge abused his discretion in imposing a 30-year sentence.

For the foregoing reasons, we vacate the judgment of the trial court and remand with instructions to conduct a Franks hearing. In the event that the defendant fails to meet the burden of proof required to quash the search warrant, the judgment should be reinstated.

Vacated and remanded.

JOHNSON and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    A.E. STALEY MANUFACTURING COMPANY, f/k/a Staley Continental, Inc., Plaintiff and Counterdefendant-Appellant and Cross-Appellee, v. WILLIAM S. ROBERTSON, Defendant and Counterplaintiff-Appellee and Cross-Appellant (American Arbitration Association, Defendant).
    First District (4th Division)
    No. 1—91—1469
    Opinion filed September 30, 1992.

      Mark A. Casciari and Marian C. Haney, both of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, for appellant.
    Robert E. Arroyo and A. Benjamin Goldgar, both of Keck, Mahin & Cate, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

A.E. Staley Manufacturing Co., plaintiff and counterdefendant, appeals from an order of the circuit court of Cook County granting the petition of William Robertson, defendant and counterplaintiff (Robertson), for attorney fees, disbursements, tax gross-up payments and interest pursuant to the parties’ “Management Retention Agreement” (MRA). On appeal, the issues are whether the trial court erred in (1) finding that the disputed claims for attorney fees disbursements, tax gross-up payments and interest are not arbitrable pursuant to the parties’ MRA, and (2) awarding defendant actual expenses for attorney fees instead of reasonable attorney fees.

We reverse and remand.

Robertson is a former executive of Staley Continental, Inc., now known as A.E. Staley Manufacturing Company (Staley). During his employment with Staley, Robertson participated in Staley pension plans, one of which was the Staley Continental, Inc., “Supplemental Executive Retirement Plan” (SERF). The SERF contained no arbitration clause.

On April 8, 1986, Robertson entered into a contractual agreement with Staley known as a “Management Retention Agreement” (MRA). The MRA provides in pertinent part, as follows:

“7. Any controversy or claim arising out of or relating to this Agreement, or any breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association.”

On June 30, 1988, Robertson was terminated from his employment at Staley. Pursuant to the terms under the MRA, he received $511,885. Robertson also received $258,978 in retirement benefits under the SERE Robertson claimed that Staley only paid part of the retirement benefits he should have received under the SERE. He argued that Staley underpaid his SERF benefits by offsetting the amount of a lump sum payment under another pension plan in which he participated.

Robertson initiated arbitration of his SERF offset dispute under paragraph 7 of the MRA. He contended that the remedy he sought was in compliance with the MRA and the SERF Staley filed a complaint for declaratory judgment and application for a stay of arbitration in the circuit court of Cook County. The trial court stayed arbitration of the SERF controversy under the MRA and denied Robertson’s motion for a stay of the judgment.

On appeal, this court reversed the trial court’s decision. (See A.E. Staley Manufacturing Co. v. Robertson (1990), 200 Ill. App. 3d 725.) In reaching this decision, we found that the subject matter of both the MRA and the SERF involved benefits to be afforded to Robertson in the event of his retirement or termination. (A.E. Staley Manufacturing Co., 200 Ill. App. 3d at 730.) Accordingly, we found that the SERF may properly be construed as part of the MRA and that Robertson’s SERF offset claim was arbitrable under the arbitration clause contained in the MRA. Having found that the dispute arose out of or was related to the MRA, we also held that Robertson would be entitled to attorney fees pursuant to paragraph 6 of the MRA. Staley’s petition for leave to appeal to the Illinois Supreme Court was denied. A.E. Staley Manufacturing Co. v. Robertson (1990), 133 Ill. 2d 551.

Subsequently, Robertson filed a motion for an order reversing the judgment and for assessment of attorney fees and expenses pursuant to the provisions on those subjects in the MRA. Staley disputed the amount of fees and disbursements sought by Robertson and contended that the controversy should be decided by an arbitrator. Robertson argued, and the trial court found, that all of Robertson’s attorney fees should be reimbursed to him, irrespective of whether or not those fees are reasonable. The trial court issued the following order:

“Robertson is entitled to reimbursement of all attorneys’ fees and disbursements actually incurred plus ‘gross-up,’ except that Robertson is only entitled to interest at 12 percent from the date of the [Illinois] Supreme Court’s denial of Staley’s petition for leave to appeal.”

Robertson’s position at the trial court level, and at the appellate court level, was that all fees should be paid.

Staley filed a motion to reconsider and vacate, which was denied. Robertson filed a notice of cross-appeal seeking reversal of the order to the extent that it awarded him interest only from the date on which the Illinois Supreme Court denied Staley’s petition for leave to appeal.

On appeal, we first address whether the disputed claims for attorney fees and disbursements should have been sent to arbitration. Section 2(a) of the Uniform Arbitration Act (Act) provides:

“On application of a party showing an [arbitration] agreement ***, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.” (Ill. Rev. Stat. 1989, ch. 10, par. 102(a).)

The Illinois Supreme Court stated that “if the dispute clearly falls within the scope of the arbitration agreement, the court should order arbitration.” (Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 449.) The court further stated that, even in cases where the language of an arbitration agreement is broad or unclear, the trial court should defer the arbitrability question to the arbitrator. Donaldson, Lufkin & Jenrette Futures, Inc., 124 Ill. 2d at 449-50.

In this case, the arbitration clause contained in the MRA stated: “Any controversy or claim arising out of or relating to this Agreement ] *** shall be settled by arbitration ***.” In the underlying claim, Robertson sought arbitration after a dispute arose concerning the amount of benefits to which he was entitled under the SERE This court found that Robertson’s SERF claim was a part of the MRA and that the case should have been sent to arbitration. (See A.E. Staley Manufacturing Co. v. Robertson (1990), 200 Ill. App. 3d 725.) Robertson now asks this court to find that his claims for attorney fees, which arose out of the underlying SERF claim, should not be arbitrated. However, to hold so would fly in the face of our earlier opinion.

“Once a contract containing a valid arbitration clause has been executed, the parties to the agreement are irrevocably committed to arbitrate all disputes arising under the contract.” (Emphasis added.) (Johnson v. Baumgardt (1991), 216 Ill. App. 3d 550, 559.) Robertson’s ancillary claims for attorney fees, disbursements, tax gross-up payments and interest payments are clearly claims “arising out of or relating to” the MRA. Paragraphs 6 and 8 of the MRA provide as follows:

“6. If, with respect to any alleged failure by Staley (or its successor) to comply with any of the terms of this Agreement, Executive hires legal counsel with respect hereto, or institutes any negotiations or institutes or responds to legal action to assert or defend the validity of, enforce his rights under, or recover damages for breach of the same, Stanley (or its successor) shall pay, as they are incurred, his actual expenses for attorneys’ fees and disbursements, together with such additional payments, if any, as may be necessary so that the net after-tax payments to Executive equal such fees and disbursements.
* * *
8. In the event any amount due hereunder is improperly withheld, then Staley (or its successor) agrees to pay interest on said amount at an annual rate of twelve percent (12%), or the average prime rate in effect at Continental Illinois National Bank and Trust Company, whichever is greater, for the period between Executive’s termination date and the date said amount is paid.”

Here, the MRA governs which issues are subject to arbitration and the parties are bound to arbitrate those issues which the MRA shows they have agreed upon. Applying basic contract construction principles, we find that the arbitration provision contained in paragraph 7 was intended to govern issues arising under paragraphs 6 and 8 of the MRA.

Under section 2 of the Act, the trial court should have ordered the parties to proceed with arbitration on the issue of attorney fees and disbursements. Similarly, Robertson’s cross-appeal requires an interpretation of paragraph 8 of the MRA, which should also be decided by the arbitrator. Accordingly, we reverse the trial court’s decision. On remand, the trial court should refer Robertson’s claims for attorney fees, disbursements, tax gross-up and interest to an arbitrator pursuant to the parties’ MRA.

Having determined that the trial court erred in deciding on the issue of attorney fees and disbursements, we need not address the merits of the trial court’s ruling. See United Cable Television Corp. v. Northwest Illinois Cable Corp. (1989), 128 Ill. 2d 301, 307.

The decision of the trial court is reversed, and the cause is remanded with directions to compel arbitration.

Reversed and remanded with directions.

LINN and McMORROW, JJ., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL COBERN, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—1694
    Opinion filed September 30, 1992.
    Rita A. Fry, Public Defender, of Chicago (Renee C. Graham, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Christopher Daddino, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant was convicted of armed robbery and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 18 — 2, 12 — 4(b)(8)), then sentenced to concurrent, respective terms of eight and four years’ imprisonment. On appeal defendant contends that the multiple convictions were improper because they were based on the same physical act.

We affirm the judgment of the trial court.

Background

The record shows that the incident giving rise to the charges in this case occurred in the early morning hours of December 1, 1990, near California Avenue and Point Street in Chicago. At trial, Mauro Bustamante testified that he was returning from work about 4 a.m. that day, and as he walked in that area towards his home, he saw defendant and two other men standing on the sidewalk. He had previously seen defendant in the neighborhood, but he did not know him by name. As Bustamante continued on his way, he observed defendant walk away from the others, and reappear from behind a building which was just beyond him. Defendant was drinking from a beer bottle which he held in his right hand and came up to Bustamante’s side. Defendant hit him in the head with the bottle, which broke and cut Bustamante in the right temple. Bustamante attempted to flee, but defendant followed him as he ran and put his hand on the sports bag Bustamante was carrying. Bustamante had a Walkman on the right side of his leg and the headphones around his neck, and when defendant grabbed hold of the bag, which contained clothing and a paycheck, Bustamante let it go and the Walkman also fell to the ground.

Bustamante ran to his house, about 40 feet away, and once inside, he realized that he was bleeding. He then contacted his cousin, who accompanied him to the police station which was located in the neighborhood. Defendant chased them en route, but Bustamante managed to register his complaint and then toured the neighborhood with two police officers. He saw defendant on the street near the area where the attack took place and pointed him out to the officers.

On cross-examination Bustamante denied that the incident evolved from a gang dispute or that he was a member of any gang. He allowed, however, that his cousin was a member of the Latin Kings. He further stated that no words were spoken during the entire encounter with defendant.

Chicago police officer Richard Rennes testified that he arrested defendant after Bustamante pointed him out on the street. At that time he observed that defendant had a white rag wrapped around his hand, and that the rag had fresh bloodstains on it. At the station he saw that defendant had small, fresh cuts in the web area of his right hand and another cut on the palm of his hand. During cross-examination he stated that the arrest occurred about one-half hour after the offense reportedly occurred, and that he did not recover any beer bottles from the scene nor any of the property allegedly taken from the victim.

Defendant testified that he knew Bustamante from the neighborhood, and asserted that Bustamante “hung out” with his cousins and other gang members in that area. He recalled that he left a bar with two friends about 3:15 that morning and went home. The windows of his home had been broken by gang members two days before that, and when he arrived home on this occasion, he fought with his brother, who pushed him against the glass causing him to cut his hand. After that defendant left his home and walked towards California and Point to call his girl friend. He was arrested in that area, but denied assaulting Bustamante or taking any of his property.

The State called Detective Lawrence Holec in rebuttal. Holec testified that he spoke .with defendant after his arrest and in that conversation defendant denied any involvement in the alleged crime, and attributed the cuts on his hand to a fall in the house after wrestling with his girl friend. Defendant testified in surrebuttal that he did not recall speaking to that particular detective, that he had been drinking for six hours prior to his arrest, and that he had consumed quite a bit of alcohol during that period of time.

The trial court found defendant guilty of both offenses. In announcing its decision, the court stated that the evidence showed that defendant was armed with a beer bottle and smashed it on the victim’s head. The gash sustained by the victim was corroborated by the testimony of the police officer. The court further found that the incident took place on a city street and that defendant grabbed the victim’s property while he was armed and as he was chasing the victim.

Opinion

On appeal, defendant disputes the multiple convictions entered by the court. He maintains that the force used to establish the armed robbery conviction, i.e., striking the victim in the head with a bottle, also caused the bodily injuries referred to in the aggravated battery charge. Thus, he asserts that both offenses were carved from the same physical act and his conviction of aggravated battery must be vacated. The State responds that the evidence established two separate acts and urges this court to uphold the multiple judgments entered by the trial court.

The seminal case concerning the propriety of multiple convictions from a single physical act is People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838. In that case, the supreme court held that multiple convictions and concurrent sentences were proper where defendant committed several acts despite the interrelationship of those acts; and defined “act” in this context as any overt or outward manifestation which would support a different offense. (66 Ill. 2d at 566.) More recently the supreme court reviewed King and its progeny and concluded as follows:

“ ‘[I]f a defendant commits more than one criminal act in an episode or transaction, he may be prosecuted for more than one offense unless the charges involve precisely the same physical act. If the physical acts are distinct, the defendant can be convicted of both, but only concurrent sentences can be imposed. If exactly the same physical act does form the basis for more than one offense, a defendant may still be prosecuted for each offense, but only one conviction and sentence may be imposed.’ [Citation.]” People v. Segara (1988), 126 Ill. 2d 70, 77, 533 N.E.2d 802.

In deciding whether defendant’s conduct in a particular instance constituted separate acts or merely formed distinct parts of a single physical act, reviewing courts have considered the identity of the victim and location, the similarity of the acts and lack of a substantial time interval or intervening act between them, and prosecutorial intent as reflected in the wording of the charging instrument. People v. Baity (1983), 125 Ill. App. 3d 50, 465 N.E.2d 622.

In this case, the record discloses one victim, and action which took place in the same general location within a short period of time. Additionally, however, the victim testified to distinct acts by defendant which were separated by an interval of time even though this period was brief. See People v. Meyers (1981), 85 Ill. 2d 281, 426 N.E.2d 535.

Bustamante testified that while he was walking on a public sidewalk defendant came up to him, then hit him in the right temple with a beer bottle. The bottle burst on impact, cut his head and caused injury to him. Clearly this evidence, which was accepted by the trial court, was sufficient to establish defendant’s commission of the offense of aggravated battery as charged. Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(8); People v. Pugh (1987), 162 Ill. App. 3d 1030, 516 N.E.2d 396.

The information also alleged that defendant had committed armed robbery in that he, by use of force and by threatening the imminent use of force while armed with a dangerous weapon, took personal property from the person and presence of the victim. Bustamante testified that after defendant struck him on the head and injured him, he fled and was pursued by defendant, who then grabbed the bag the victim was carrying. The trial court opined that the robbery may have been an afterthought by defendant, but nevertheless found that the armed defendant had grabbed the victim’s bag while in pursuit and that he was also proved guilty of armed robbery.

The standard for reviewing the sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) Applying that standard to the case at bar, we find sufficient evidence to support the determination entered by the trial court. Although there was but one victim, and the action took place in the same locale, the record also shows a brief interval between acts, and the charging instrument reflected the State’s intention to charge defendant with separate offenses based on them. Bustamante’s testimony disclosed the hit on the head with the beer bottle causing injury which completed the aggravated battery, then pursuit by defendant and the taking of his property by defendant while he was still armed. In our judgment, these distinct acts support the multiple convictions and concurrent sentences entered by the trial court (see People v. Higgins (1979), 71 Ill. App. 3d 912, 390 N.E.2d 340; see also People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853) in conformity with the rules for same set forth in King and affirmed in Segara. People v. Hairston (1990), 207 Ill. App. 3d 674, 566 N.E.2d 343.

The judgment of the circuit court of Cook County is therefore affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OMAR SAUNDERS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2178
    Opinion filed September 30, 1992.
    Rehearing denied October 30, 1992.

      Michael J. Pelletier and Janice Lynn Triptow, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

Following a jury trial, defendant Omar Saunders was found guilty of murder, armed robbery, aggravated kidnapping and two counts of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — l(a)(1), (a)(2), (a)(3), 12-14(a)(2), 18-2(a), 10-2(a)(3).) Saunders was sentenced to natural life imprisonment for murder with additional terms of 30 years for aggravated criminal sexual assault, 30 years for armed robbery and 15 years for aggravated kidnapping. These additional terms were to run concurrent with the natural life imprisonment term. Defendant argues on appeal that: (1) his right to a fair trial was prejudiced by the State’s implication in closing argument that he was involved in the intimidation of a nontestifying witness, Herman Mollison; (2) his sixth amendment right to confrontation was violated where the State elicited the fact that he was sought by the police after being implicated by the pretrial statements of his codefendants; (3) the trial court erred by admitting into evidence the testimony of Pamela Fish establishing that he, along with 37% of the general population, could have deposited the semen found on the victim’s vaginal swab; (4) he was deprived of a fair trial by improper prosecutorial remarks in closing argument concerning certain physical evidence in the case; and (5) the sentence of natural life imprisonment without parole for the murder charge was an abuse of the trial court’s discretion.

Lori Roscetti was a medical student who was found dead alongside her car on an isolated railway access road located on Chicago’s west side. The defendant, Saunders, was indicted for the murder and rape of Roscetti along with three other defendants. The defendant made a motion for severance from the other defendants, which was granted.

At trial, the defendant filed a motion in limine to prevent the State from presenting testimony of the codefendants’ pretrial statements or evidence of their involvement in the investigation. The trial court ruled the State could go into the investigative process relative to why the police were seeking the defendant but could not go into the actual statement of the codefendants. The jury was given a limiting instruction to this effect.

Testimony began with the State calling the victim’s mother, Laura Roscetti. She testified that she learned of her daughter’s death from her husband on October 18, 1986. The State also called the victim’s roommate, Christine Gorman, to testify about the victim’s activities the day of the murder. The State called a classmate of the victim, Allan Radner, with whom she had been studying the night she was killed.

Samuel Busch testified on behalf of the State. Busch was a friend of one of the other defendants in the case, Marcellius Bradford. Busch was also acquainted with the other codefendants in the case, Calvin and Larry Ollins, who are cousins, as well as Saunders. Busch usually saw the defendant at the ABLA housing projects in the City of Chicago. On one occasion, while Busch was helping another ABLA resident, Herman Mollison, paint his apartment, he saw Saunders coming up the stairs. Busch invited Saunders to “smoke a joint.” During this encounter, Busch told Saunders the police were looking for him. Saunders replied he did not know why because he did not do anything. Saunders then told Busch that one evening while they were waiting for a bus, he and Bradford encountered Calvin and Larry Ollins. Since the busses apparently had stopped running, the quartet began walking. Suddenly, Larry Ollins made a “Rambo” move on a car driven by a young woman. Larry Ollins then jumped into the driver’s seat of the car, followed by Calvin Ollins. The Ollinses then called to Saunders and Bradford to join them in the car. Bradford and Saunders got into the back seat of the car. The Ollinses started molesting the woman. Larry Ollins then stopped the car and told Bradford and Saunders to get out. Saunders and Bradford began walking when Larry Ollins told them to wait a minute. Larry Ollins said he was “going to make this woman pay.” At this point, Saunders said the woman tried to run away but was hit in the face with a piece of brick by Larry Ollins. Saunders told Busch that this is the point at which he and Bradford left the scene of the crime.

Busch became further instrumental in solving the Roscetti murder by cooperating with Detective Jones of the Chicago police department. Busch spoke with Jones on February 26, 1987. Busch was acquainted with Jones because Jones was helping Busch with an aggravated battery case in which Busch was the victim. Busch told Jones he had information about the Roscetti murder. Pursuant to his conversation with Jones about the Roscetti case, Busch spoke with Detective Mercurio of the Chicago police department on March 31,1987.

On March 31, 1987, Busch gave a statement to the police regarding the Roscetti murder. At this time, Busch was not aware that another individual, Herman Mollison, had given statements about the Roscetti murder.

Approximately one year after Busch had spoken to Jones regarding the Roscetti murder, he spoke to counsel for the defendant, Tom Allen. The conversation between Allen and Busch was recorded. In that conversation, Busch told Allen everything he had told the authorities was lies. Later, Busch said the statements he made to the police and to the grand jury were honest and truthful.

Busch admitted during his redirect examination at trial he was aware that Herman Mollison had been threatened in connection with this case. By telling defense counsel he never made a statement implicating Saunders in the Roscetti murder, Busch rationalized that the information would get back to Saunders and protect him from any intimidation attempts.

The State called Mercurio to testify at trial. Mercurio was instrumental in assembling a list of approximately 100 possible suspects in the Roscetti case. From that list Mercurio subsequently interviewed Calvin and Larry Ollins as well as Bradford. Saunders’ name surfaced as a result of those interviews. February 12, 1987, Saunders turned himself into the third district police station. He was later transferred to the Area 4 station. At this time, Saunders was interviewed by Mercurio. During this interview, Mercurio told Saunders that the police had established thát only he and Calvin Ollins had assaulted the victim on the front seat of the car. Mercurio then asked Saunders how long Calvin Ollins assaulted the victim, to which Saunders replied “a couple of minutes.” Mercurio then asked Saunders whether or not he understood that hairs found on the front seat of the car belonged to either him or Calvin Ollins. Saunders replied: "Yes, I realize that.”

The State presented the testimony of Pamela Fish. Fish is a qualified serology expert employed by the Chicago police department in the serology unit of the crime laboratory. Fish testified as to the results of certain tests she had performed in connection with the Roscetti case. Specifically, she tested blood, saliva, and semen samples taken from the scene of the crime. As to the semen samples, Fish testified the results could only exclude possible donors but could not positively establish the identity of the donors. Saunders was excluded as a possible semen donor based on the characteristics of his PGM or enzyme markers, which did not match those taken from the victim. The PGM markers found in the sample taken from the victim did, however, match those of Calvin and Larry Ollins. The State submitted a motion in limine to exclude the cross-examination of Fish regarding DNA testing. No DNA testing was conducted in this case, nor was the procedure commonly available at this time. The motion was granted. Defense counsel moved to strike the entirety of Fish’s testimony because it exonerated the defendant of rape. The trial court denied defendant’s motion because it reasoned the evidence corroborated Saunders’ statement that Calvin Ollins had sex with the victim. Saunders’ statement conclusively established his presence at the scene of the crime, which in turn corroborated Busch’s testimony.

Gary Huff, an ABLA resident, testified for the State. Huff was a friend of defendant Bradford. He was also acquainted with Saunders. At the time of the trial, Huff had a charge of witness intimidation pending against him with regard to Mollison. Huff testified that on October 17, 1986, during a party in the ABLA projects, he saw Larry Ollins and Saunders arrive together at approximately 8 p.m. and then leave the party together at approximately 10 p.m. Later that same evening, at approximately 2 a.m., Huff again saw Saunders in the lobby of an ABLA project building. Huff further testified that in January of 1987, he and Saunders were in Bradford’s apartment watching television when they saw Bradford in handcuffs on the screen. At this time, Saunders told Huff that “they might come looking for me next *** I killed a lady on the tracks.”

The defendant raises numerous issues before this court. Initially, defendant argues that his right to a fair trial was prejudiced by remarks the State made during the trial. While defense counsel argues that portions of Busch’s testimony were properly admitted into evidence solely for the purpose of showing his state of mind at the time he made a prior inconsistent statement, defense counsel also argues that this proper admission of testimony into evidence was prejudicial to his client. We disagree. The prior inconsistent statement arose because on direct examination, Busch told the police about Saunders’ earlier statement to him concerning Saunders’ involvement in the Roscetti murder. However, Busch later told defense counsel, in a taped conversation on February 15, 1988, that Saunders never admitted his involvement in the crime. On redirect, Busch’s testimony as to why he made the statement to defense counsel was ruled admissible by the trial court to rehabilitate his testimony on direct examination. The State further argues that the introduction of Busch’s prior inconsistent conversation with defense counsel left the jury with the impression that the police had coerced Busch into testifying against the defendant. To rebut this inference, we find the State properly admitted into evidence Busch’s knowledge of the intimidation of another witness, Mollison, to counter inferences of police coercion.

Defense counsel next argues that it was improper to elicit testimony at trial from Huff that he was charged with the intimidation of Mollison. The State replies that the defendant did not raise this issue in his motion for a new trial. Therefore, the State contends the issue has not been properly preserved for review. We agree that this issue is waived under the holding in People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Defendant further argues that he was deprived of his right to a fair trial because the State improperly elicited his implication in the Roscetti crime through pretrial statements of his codefendants. By the defendant raising this issue on appeal without proper preservation, the trial court had no opportunity to correct the error the defendant alleges. Thus, the very protection afforded in the waiver rule was extinguished.

Defendant relies on Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, which held that a nontestifying co-defendant’s confession cannot be elicited for the purpose of implicating the defendant. To allow such testimony would deny the defendant’s sixth amendment right to confrontation of his accusing witnesses. Case law decisions have been divided since the ruling in Bruton as to whether or not a defendant’s rights are violated based on the admission of the fact that he was arrested following the interrogation of a codefendant. This court has interpreted the ruling in Bruton in People v. Rivera (1986), 145 Ill. App. 3d 609, 495 N.E.2d 1088. In Rivera, the court determined the pivotal question to be decided was whether or not the substance of a codefendant’s statement was placed before the jury. The court held it was not; thus, the defendant’s right to confrontation was not compromised.

In the case sub judice, the defendant contends the testimony of Detective Mercurio and State’s Attorney Sussman prejudiced his sixth amendment right to confrontation because of the fact that, after speaking to the codefendants, he became a suspect and was then arrested. However, we find that, under the ruling in Rivera, the testimony of Mercurio and Sussman were admissible facts of the investigatory process.

Defendant next argues the testimony of Pamela Fish of the serology unit of the Chicago police department was prejudicial and improperly admitted into evidence. Fish’s testimony established that defendant’s semen sample was consistent with the genetic markers of his codefendants. However, the State pointed out that while the semen samples placed all of the codefendants in a large population of possible donors that could have included Omar Saunders, the genetic blood markers actually excluded the defendant from the group of possible donors. The evidence was properly admitted because of its corroborative value in establishing the defendant’s presence at the scene of the crime.

The relevance of evidence is a question for the trial court which should not be disturbed absent an abuse of discretion. (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.) In Illinois, a person will be held legally accountable when “[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).) Active participation in a crime may be “established through a person’s knowledge and participation in a criminal scheme, even though there is no evidence of his direct participation in the criminal act.” (Emphasis added.) People v. Dotson (1986), 143 Ill. App. 3d 135, 142, 492 N.E.2d 903.

The paramount issue in the trial of the defendant is whether or not he is guilty of the kidnapping, rape, and murder of the victim. We find that the testimony of Fish, thus, is unquestionably relevant in evaluating the culpability of the defendant based on a theory of accountability. Fish’s testimony is corroborative of the defendant’s own admission that he was present when Calvin Ollins raped Lori Roscetti, even though the semen samples taken from the victim excluded the defendant.

Defense counsel relied on People v. Charleston (1985), 132 Ill. App. 3d 769, 477 N.E.2d 762, to support the contention that wide latitude should be granted in cross-examination of an expert witness. The State replied that the subject of DNA testing is completely irrelevant to the case. In response, defense counsel further argued that cross-examination of Fish vis-a-vis DNA testing would have been instrumental in discrediting her testimony. We find defense counsel’s argument to be unsupportive of any error on the part of the trial court.

We are next asked to examine the defendant’s contention that the prosecution made prejudicial comments in closing argument which overstated the physical evidence introduced during trial. The defendant did not raise objections to the specific prosecutorial comments at trial or in his post-trial motion. Even improper comments do not constitute reversible error unless they result in substantial prejudice to the accused, such that absent those remarks the verdict would have been different. (People v. Cisewski (1987), 118 Ill. 2d 163, 175, 514 N.E.2d 970.) Accordingly, we find that the defendant has not properly preserved the complained-of prosecutorial comments for review and this court will not consider them on appeal.

Defendant’s final issue on appeal is whether his sentences were excessive and constituted an abuse of discretion by the trial court. An examination of the facts of the case indicates the sentences were within the statutory guidelines and do not constitute an abuse of discretion by the trial court. (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 5 — 3.2(b)(2).) The trial court considered both the extremely brutal and heinous nature of the offense as well as factors both in mitigation and aggravation in determining the appropriate sentence for the defendant. The acts of the defendant can only be characterized as senseless, wanton cruelty, bordering on acts similar to an animal ravaging its helpless prey.

A sentence may not be altered upon review absent an abuse of discretion by the trial court. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) The trial court must strike a balance between the protection of society and rehabilitation of the offender based on many factors. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541.) A court of review may not substitute its judgment for that of the trial court because it would have balanced the appropriate factors differently.

The record indicates the court considered arguments in both aggravation and mitigation, the defendant’s age at the time the crime was committed, his prior criminal record and social environment. Thus, we hold the trial court did not abuse its discretion in sentencing the defendant to life imprisonment without parole.

For all of the foregoing reasons, we hereby affirm the decision of the Cook County circuit court in all respects.

Affirmed.

GREIMAN, P.J., and RIZZI, J., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE ROBINSON, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2886
    Opinion filed September 30, 1992.
    Rita A. Fry, Public Defender, of Chicago (William Bates and Aaron Meyers, Assistant Public Defenders, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Noreen M. Daly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, defendant, Johnnie Robinson, was convicted of residential burglary and theft. He was sentenced to an extended term of 16 years’ imprisonment. On appeal, defendant asserts that (1) the trial court erred when the trial judge abandoned his proper role as an impartial arbiter and assumed the role of a prosecutor by advising the prosecutor how to prove the elements of the offense; (2) the prosecutor tainted the trial process during closing argument by characterizing the defense as nothing but a smokescreen and demeaning the defense counsel’s motives; and (3) the prosecutor’s closing argument comment on the failure of defendant to testify violated the self-incrimination clause of the United States Constitution’s fifth and fourteenth amendments.

When Scott Davis left his third-floor apartment on April 19, 1988, he locked the passage lock and the middle dead bolt. An hour later, Davis returned to his apartment with a friend. As he got off the elevator on the third-floor, Davis saw a man carrying some articles, including an instrument case that looked like his bass guitar case and a chess set. When he was about 20 feet away, the man stopped and turned into the back staircase entrance, pausing and looking in Davis’ direction. At trial, Davis described the man as African-American, approximately 6 feet 1 inch tall, weighing 160 pounds, and wearing a brown rayon shiny shirt, brown cap, and dark pants.

Davis went to his apartment and unlocked the passage lock. He noticed that the plate with the dead bolt was gone and fresh wood chips were in the bolt hole and on the rug. Inside the apartment, Davis’ belongings were strewn around the room. While his friend called the police, Davis ran down the back stairs and into the parking lot, where he saw the man starting a car.

Because a large moving van was blocking the car’s exit, Davis ran to the car. Seeing the chess set on the front seat, Davis pounded on the windshield and tried to open the passenger door, but the man drove out of the parking lot. Davis identified the car as a mid-1970’s coupe with the license plate number, “IB 5796.”

Davis ran back to his apartment and gave the police the license plate number over the telephone. When a police officer came to his apartment, Davis reported that his bass guitar, chess sets, and portable cassette player were missing. He also gave the police officer descriptions of the man and the car.

The next day, Davis went to the police station where he identified his property and viewed a lineup. He told the police officers that he was 99% certain that defendant was the man he saw in his apartment building. At trial, Davis testified that he was not absolutely certain that defendant was the man he saw.

During Davis’ testimony, there was a sidebar held where the trial judge reminded and advised the prosecutor to prove the material elements of the crime of residential burglary. The trial judge said:

“State, did you elicit from this witness — I take it he’s the owner of this dwelling place, is that correct? Did you ask him any questions about whether or not anyone had permission or authority to enter into the apartment? *** Perhaps you ought to go into the elements at this time. I’m doing that for the purpose of manifest justice in this case.”

No objection was made to the trial court’s comments, and the prosecutor elicited the information from Davis.

Chicago police detectives Carl Leidy and Craig Groth testified that they checked the license plate number and discovered that it was registered to defendant. Eventually, they arrested defendant at his place of employment.

Detective Leidy drove defendant’s car to the police station. After defendant told him where to find the chess set, he recovered it from the car’s trunk. The police officers also found hunting knives, which Davis later identified as his. After defendant told the police officers where to find the bass guitar and portable cassette player, the police officers recovered that property. In addition, there were items stolen that were never recovered.

After closing arguments, the jury found defendant guilty of residential burglary and theft. The trial court then sentenced him to an extended term of 16 years’ imprisonment based on prior felony convictions.

Defendant asserts that the trial judge abandoned his proper role as an impartial arbiter and assumed the role of a prosecutor when he advised and instructed the prosecutor how to prove the elements of residential burglary. Defendant contends that he was seriously' prejudiced because the prosecutor would have failed to prove the material elements necessary to establish a prima facie case of residential burglary without the judge’s advice.

The cases defendant relies on to support his argument are inapplicable. They all involve the trial judge questioning witnesses. In People v. Moriarity (1966), 33 Ill. 2d 606, 613, the trial judge repeatedly took over the questioning and emphasized the defendant’s identification, objected while the defense counsel was cross-examining witnesses, admonished the defendant’s wife of the penalties of penury while she was testifying, and harshly reprimanded the defense counsel in front of the jury.

In People v. Santucci (1962), 24 Ill. 2d 93, 98-99, the judge repeatedly questioned every witness and showed repeated hostility toward the defense counsel in front of the jury. The court held that the trial judge conducted an extensive examination of witnesses, thus usurping the counsel’s function and giving undue prominence to the matters gone into by the judge. Santucci, 24 Ill. 2d at 98-99.

The judge in People v. McGrath (1967), 80 Ill. App. 2d 229, 236, elicited inadmissible hearsay evidence on which the trial court relied in finding the defendant guilty.

In re R.S. (1983), 117 Ill. App. 3d 698, 704, the trial court twice called Lambert, who was a participant in the offense, to testify. After holding Lambert in contempt of court for not testifying, the trial court elicited testimony from him that implicated the minor defendant.

In People v. Cofield (1973), 9 Ill. App. 3d 1048, 1051, the trial judge called the State’s witnesses, conducted the examinations, and asked questions directed at eliciting testimony to support the allegations against the defendant.

In People v. Rogers (1974), 18 Ill. App. 3d 940, 944, and People v. Anton (1981), 100 Ill. App. 3d 344, 353, the trial courts properly questioned witnesses in order to clear up ambiguities.

Defendant contends that People v. Galan (1986), 151 Ill. App. 3d 481, was wrongly decided. The facts of that case were very similar to this case’s facts. In a sidebar conference outside the presence of the jury, the trial court reminded the prosecutor of the necessity to prove additional elements of the offense. Galan, 151 Ill. App. 3d at 483.

We reject defendant’s argument. We first note that defendant waived this argument because he did not object at the time of the sidebar or raise the issue in his post-trial motion. Failure to object at trial and raise an issue in the written motion for a new trial constitutes a waiver of that issue (People v. Enoch (1988), 122 Ill. 2d 176, 188) and it cannot be urged as a grounds for reversal on review. People v. Caballero (1984), 102 Ill. 2d 23, 31.

Even if the issue had not been waived, however, the judge’s suggestion to the State was not an improper assumption of the role of prosecutor. It has been held in other cases that it is not improper for the trial court to remind the prosecutor of the necessity to prove the elements of the offense.

In People v. Murray (1990), 194 Ill. App. 3d 653, 655, during the defense cross-examination of the victim of an attempted armed robbery, the trial judge questioned the victim about what words were uttered by defendant. The question elicited a response that established a material element of the State’s case, which the State otherwise would have failed to prove. (Murray, 194 Ill. App. 3d at 658.) It was held that questioning by the trial judge was not improper.

In People v. Franceschini (1960), 20 Ill. 2d 126, after the State had rested, the trial court expressed a desire to know how entry was gained into the burglarized apartment. The State reopened its case and showed how it was done. Holding that the trial court did not become an advocate, the appellate court affirmed the conviction.

In People v. Bolton (1927), 324 Ill. 322, 329, the trial court reminded the prosecutor of the necessity to prove venue.

In People v. Walter (1980), 90 Ill. App. 3d 687, 688, the trial court suggested that the State present identification and venue evidence. The suggestion was made outside the presence of the jury, during the State’s case in chief, and at the conclusion of a conference on an objection to the testimony. Walter, 90 Ill. App. 3d at 688.

Even though it is an abuse of discretion for a trial judge to assume the role of an advocate, he may act to ensure that evidence essential to the proper disposition of a case is not inadvertently omitted. (Galan, 151 Ill. App. 3d at 483.) A trial judge may remind the prosecutor of the necessity to prove additional elements, examine witnesses to clarify material issues or eliminate confusion, and advise counsel on the proper phrasing of questions. (Galan, 151 Ill. App. 3d at 483-84.) The propriety of the judicial examination is determined by the circumstances of each case and rests largely in the trial court’s discretion. People v. Trefonas (1956), 9 Ill. 2d 92, 100; Murray, 194 Ill. App. 3d at 658.

There was no abuse of discretion in this case. The trial court did not elicit inadmissible hearsay evidence as in McGrath or extensively question the witnesses and take over the prosecutor’s role as in Moriarity, Santucci, In re R. S., and Cofield, on which defendant relied. Without assuming the role of prosecutor, the trial court properly assured that the evidence essential to the proper disposition of this case was not omitted and did so outside the presence of the jury during a sidebar.

Next, defendant asserts that the State committed prosecutorial misconduct during its closing argument by characterizing the defense as nothing but a smokescreen, attacking the motives and objectives of the defense counsel, and appealing to the jury’s prejudices in an effort to arouse and inflame its antagonism against defendant and his attorney and to shift the jury’s focus away from the evidence and toward efforts to dirty the defense counsel.

Defendant argues that the smokescreen argument is tantamount to accusing the defense counsel of fabricating a defense and attempting to free his client by trickery. Defendant contends that the improper prosecutorial comments were of sufficient gravity to affect the substantial right of defendant to a fair jury consideration of his defense.

At the beginning of her rebuttal closing argument, the prosecutor commented:

“You know it’s as if counsel has created in the midst of this courtroom a huge bond [sic] fire and then when he got this fire burning. *** And it was blinding our eyes. *** He took one of those little cans with that stuff in it that when you throw it into the fire, all of a sudden everything is smoke. And the whole courtroom here is filled with smoke.”

The trial court overruled two defense objections and the prosecutor continued:

“Smoke is the only thing he’s created. He wants to take that finger of guilt which rightfully belongs here and start pointing it up there. That was where you heard the evidence from, ladies and gentlemen, and so now he wants to do the only thing he can to try to convince you that this man did not admit his guilt. And how does he try to do that? By knit [sic] picking at each and everything that is and isn’t there. By trying to confuse you about what is and isn’t there.”

The defense counsel objection was then sustained and the trial court admonished the jury:

“The jury is to disregard the motivation of the defense attorney and what he’s trying to do, et cetera. You may proceed but refrain from that line of implying motives to counsel.”

Defendant relies on cases that are inapplicable. In People v. Palmer (1970), 47 Ill. 2d 289, 298, the court found that comments similar to this case were not sufficiently prejudicial to warrant reversal.

In People v. Smith (1966), 74 Ill. App. 2d 458, 464, the State improperly commented on defendant’s failure to call certain witnesses who had knowledge of the facts of the occurrence.

The conviction in People v. Emerson (1983), 97 Ill. 2d 487, 497-98, was reversed due to the cumulative effect of the State’s improper closing argument, including that the defense counsel had laid down a smokescreen composed of lies, misrepresentations, and innuendoes, all defense attorneys try to dirty up the victim to distract the jury’s attention from the defendant’s crime, and the defense attorneys want to walk the defendants out of court and put them back on the street. The court held that the remarks improperly shifted the focus of attention from the evidence to the motives and objectives of trial counsel. Emerson, 97 Ill. 2d at 497-98.

Although the court in People v. Wilson (1983), 120 Ill. App. 3d 950, 962, stated that a smokescreen argument is improper, the reversal was based on the cumulative effect of all the errors in the State’s closing argument, particularly that the State suggested that an insanity defense was not proper in a rape case.

The State responds that the prosecutor’s rebuttal argument was properly made in response to defendant’s closing argument. The State lists several defense comments that it considers attempts to confuse the jury and draw its attention away from the main evidence. The defense counsel argued that defendant could not have committed the burglary since (1) his statement to the police concerning where the property was located and apologizing to the victim was not a confession; (2) he never had a chance to give a full written statement; (3) the police never stated in their reports that they went to his residence; (4) all the property was recovered from his car and nowhere else; and (5) he never gave information to the police about the victim’s missing microphone or jewelry.

The State relies on People v. Webster (1988), 175 Ill. App. 3d 119, 133, and People v. Suane (1987), 164 Ill. App. 3d 997, 1004, where the prosecutors’ smokescreen comments were proper because they were invited by the defendant’s closing argument. In Webster, an aggravated criminal sexual assault case, the defense counsel argued that the victim received her injuries prior to the defendant picking her up. (Webster, 175 Ill. App. 3d at 133.) In Suane, the defense counsel attacked the credibility of a State witness and argued that only one of the three eyewitness police officers testified because the State did not want the officers subjected to cross-examination, thus revealing that they were lying. Suane, 164 Ill. App. 3d at 1003.

The State also argues that any possible improper comments were cured when the trial court sustained defense counsel’s objections to the smokescreen line of argument and harshly admonished the prosecutor. In addition, the State asserts that any improper comments were not reversible error because they were not so prejudicial that they required a new trial. See Suane, 164 Ill. App. 3d at 1005; People v. Davis (1986), 142 Ill. App. 3d 630, 640; People v. Hunter (1984), 124 Ill. App. 3d 516, 548; and People v. Robinson (1980), 91 Ill. App. 3d 1138, 1146.

While it is improper for a prosecutor to comment that defense counsel was attempting to raise a smokescreen (Palmer, 47 Ill. 2d at 300), the improper remarks did not merit reversal since they did not result in substantial prejudice to the defendant, considering the context of the language used, its relationship to the evidence, and its effect on the - defendant’s right to a fair and impartial trial. (People v. Smith (1990), 141 Ill. 2d 40, 60.) While remarks such as “smokescreen” were better left unsaid, they were not of sufficient magnitude to justify a reversal. (Suane, 164 Ill. App. 3d at 1004-05.) Since the defense counsel invited and provoked the State’s comments (People v. Barney (1982), 111 Ill. App. 3d 669, 677) and the trial court cured any improper comments when it sustained the defense counsel’s objection and instructed the jury to disregard the comment (People v. Franklin (1990), 135 Ill. 2d 78, 100), the prosecutor’s smokescreen comments were not reversible error.

Finally, defendant asserts that the prosecutor improperly commented on defendant’s failure to testify at trial, thus focusing the jury’s attention on the defendant’s failure to take the witness stand.

The prosecutor stated:

“He knows where these things are and he tells the police where these items are. And there’s no other explanation that you have heard as evidence that you can consider as to why these items are here today. And that is because he took them. He had recent possession of them. He knew exactly where the chess set was.
* * *
There is no other explanation, ladies and gentlemen, for why the police have these things. They didn’t just materialize from thin air. And they didn’t as counsel seems to suggest all arise in the trunk.”

Even though defendant did not object to those comments or raise this issue in his post-trial motion, he urges this court to consider the prejudicial comments under the plain error rule. We decline to do so. Defendant waived this issue because he did not object at trial or raise it in his post-trial motion. Failure to object to closing remarks at trial (Franklin, 135 Ill. 2d at 100; People v. Hooper (1989), 133 Ill. 2d 469, 492) and not including the issue in the post-trial motion generally constitutes waiver of the issue. Enoch, 122 Ill. 2d at 188.

Furthermore, we will not consider the issue under the plain error rule since defendant’s argument is meritless. Defendant relies on People v. Wollenberg (1967), 37 Ill. 2d 480, 487, which is distinguishable. The prosecutor in Wollenberg reminded the jury that the defendant was the only person on trial, listed the eight witnesses who had testified at the trial, and commented, “No one else testified. Let’s get that straight.” (Wollenberg, 37 Ill. 2d at 487.) The court ruled that the express reference to the defendant’s failure to testify constituted prejudicial error requiring a new trial. Wollenberg, 37 Ill. 2d at 487-88.

As long as the prosecutor intends to demonstrate the absence of any evidentiary basis for defense counsel’s argument and not call attention to the fact that defendant did not testify, he may comment on the uncontradicted nature of the State’s case. People v. Dixon (1982), 91 Ill. 2d 346, 350.

In this case, defendant’s right to remain silent was not violated since the State’s comments did not draw attention to the fact that defendant chose not to testify. Instead, the comments were made in response to the defense counsel’s closing argument attacking the police officers’ credibility and denying that any of the stolen property was found at defendant’s residence, thus suggesting that someone put the property into defendant’s car. In addition, the jury received a cautionary instruction regarding defendant’s decision not to testify. Therefore, the State’s comments were not reversible error.

Moreover, any possible error was harmless beyond a reasonable doubt. The evidence of defendant’s guilt was overwhelming. Considering the totality of the evidence, we conclude that a trial without this error would produce no different result. People v. Warmack (1980), 83 Ill. 2d 112, 128-29.

Based on the foregoing, defendant’s conviction is affirmed.

Affirmed.

GREIMAN, P.J., and TULLY, J., concur.