author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIM FERGUSON, Defendant-Appellant.
    Fourth District
    No. 4—92—0003
    Opinion filed November 19, 1992.
    Rehearing denied December 22, 1992.

      John B. Lower and Jeff M. Plesko, both of Guardianship & Advocacy Commission, of Carbondale, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Terence M. Madsen and Karen Alice Kloppe, Assistant Attorneys General; of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal by defendant Tim Ferguson from a December 4, 1991, order of the circuit court of Sangamon County, denying a petition for transfer to a nonsecure setting (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(e)), granting a motion in favor of the State for directed verdict, and ordering Ferguson to remain incarcerated in the Chester Mental Health Center (Chester) until further order of the court.

On appeal it is contended that (1) it was error to enter what, in a jury trial, could be a directed verdict and error to deny defendant’s petition; (2) the original 1987 trial court order ordering Ferguson “to remain incarcerated in Chester Mental Health Center” was void; (3) the 1987 order violated Ferguson’s right to the least-restrictive-treatment alternative; (4) a timely hearing as to Ferguson’s July 20, 1989, pro se petition was not provided; and (5) the trial court failed to direct notice of the time and place of hearings on the Ferguson petition.

I. Background

Tim Ferguson was born July 1, 1955, and graduated from high school in 1973. In the 1970’s, he was diagnosed as schizophrenic. In 1981, evidently while delusional, he stabbed a person several times. In 1985, evidently while delusional, he killed a man with a shotgun—first shooting the victim in the arm, then following the fleeing victim and shooting him in the head. There was no apparent reason for either attack. After the 1985 shooting, he was found not guilty by reason of insanity. A circuit court order of January 1987 provided, in part:

“The defendant herein, Tim Ferguson, is subject to involuntary admission to the Illinois Department of Mental Health and Developmental Disabilities pursuant to Ill[.] Rev. Stat.[,] Ch. [91½,] §1—100 et seq[.], specifically, Ch. [91V2,] §1—119(1), as a person who is mentally ill, and who because of his illness is reasonably expected to inflict serious physical harm upon another in the near future.
IT IS THEREFORE ORDERED AND ADJUDGED as follows:
A. The defendant Tim Ferguson is ordered to the Illinois Department of Mental Health and Developmental Disabilities, there to be placed in a secure setting, specifically Chester Mental Health Center, Chester, Illinois, until further order of this court.
* * *
C. The maximum period of commitment to the Illinois Department of Mental Health and Developmental disabilities for this defendant is found to be his natural life time.”

Tim Ferguson has been confined at Chester and has been, for the most part, kept free of delusional events by the careful use of intravenous treatment with the drug Prolixin. Increased dosages have been successful in avoiding concerns that arose from time to time.

II. Forensic Evaluation By Medical Doctors Certified By The American Board Of Psychiatry And Neurology

On August 20, 1991, Ferguson was examined by a psychiatrist who was not a State of Illinois employee and had previously examined him. The doctor testified before the court on December 4, 1991, and his written report of the August 20, 1991, evaluation was made a part of the record. The significance of the evidence from this witness is illustrated by the following excerpt of the report:

“He is currently taking Prolixin Decanoate 25 mg im every two weeks. This dosage was increased approximately a year ago after he began writing letters of delusional content to Governor Thompson. Since that time his delusional symptomatology has receded. He apparently has not required any acute short term medications for the control of his agitation or psychosis. The petitioner relates that in March of 1989 he wrote a letter to Governor Thompson asking for a pardon after he had been acquitted and he states, ‘It got pretty [bizarre]. [ ] It was just a delusional episode.’ It was after this his medications were increased.
At the present time Mr. Ferguson is able to reflect back on the two individuals whom he harmed and recognized that these were a function of delusional activity and is able to describe the delusions that he had at the time in some detail. Reflecting back on Mr. Vasconcelles he states, T felt if I didn’t kill him he would kill me. He never threatened me. [ ]He relates all this to an experience he had with Vasconcelles in school and states he now realizes this was a delusion.’
MENTAL STATUS EXAMINATION: Mr. Ferguson presented himself as a cooperative, rather friendly white man who is wearing leg cuffs and wrist shackles. The latter were removed so he can drink a cup of coffee during the interview. He recognizes me from previous interviews. He is friendly and rather outgoing. He still has a somewhat blunted affect. His speech is fairly unremarkable although occasionally somewhat disorganized. He does not admit to any hallucinosis or ideas of reference. He has no specific paranoid delusions that I can elicit. He is oriented times three. He is slightly of above average intelligence.
DIAGNOSTIC IMPRESSIONS, CONCLUSIONS, AND RECOMMENDATIONS: Mr. Ferguson best fits the diagnostic category of chronic paranoid schizophrenia in partial remission and clearly improved since his last evaluation. I believe he still has some delusions but he doesn’t voice them and I think to some degree he is still ill because of his slightly disorganized thought patterns.
I believe he is receiving a just barely adequate dosage of medicine to suppress his delusions and decreasing his medications in any way would make him delusional and psychotic and allow him to act on these delusions again.
There is no evidence at the present time that Mr. Ferguson is dangerous.
The primary issues are[:] is he getting [an] adequate amount of medication and will he continue to be compliant with this regimen in a nonsecure environment? The risk of tardive dyskinesia is warranted considering the presence of psychosis and history of violence.
If this patient is given approximately twice the present amount of prolixin and is absolutely compliant with this regimen I believe it is safe to transfer him to a nonsecure environment for an indefinite time. He should be reevaluated after one year. If this cannot be done, he should not be transferred.”

The doctor testified Ferguson’s treatment required a facility with a locked ward, not necessarily a prison facility. He also testified Ferguson was not violent if he was not delusional, but that he must be in a setting where there can be no question he will always receive the required medication. It was necessary that he be placed in a psychiatric hospital setting with a locked unit. He considered the dosage of Prolixin being given to Ferguson and suggested an increase in the dosage.

III. Further Facts

There have been some instances of Ferguson’s resisting use of Prolixin. Basically, however, his stay at Chester has been relatively uneventful. Prolixin has been the reason for the lack of delusional episodes. Ferguson appears calm and able to work well with the staff. The problem with Prolixin is the risk of tardive dyskinesia which, in simple terms, is the delayed impairment of the power to execute satisfactorily voluntary movements, especially with the arms or legs.

The evidence before the trial court leads to the inescapable conclusion that escape or release from confinement, without the careful use of Prolixin, would likely result in the return of delusional episodes and dangerous conduct. It also indicates Prolixin has been administered carefully to sustain an acceptable mental and emotional state. A doubling of the use of the drug would possibly increase the danger of tardive dyskinesia.

The administrative assistant at Chester testified that Chester is the Department’s maximum security facility, but other mental health centers (including the one in Springfield) have locked wards. Chester is a total maximum security facility, so that patients going to different classes and for different treatments are always in a secure area. This is not true in facilities having only locked wards. Movement of a locked-ward patient in the other facilities is accomplished by non-security personnel escorting the patient.

Ferguson testified as to his stay at Chester and that he had had some minor delusional problems. He has been left on the minimum side of the Chester facility. He seeks the change in placement so that he will be closer to his family for visitation purposes.

IV. The Law

Section 5—2—4 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4) provides the procedure to follow when there is an acquittal by reason of insanity. The defendant is ordered to the Department of Mental Health and Developmental Disabilities (Department) for an evaluation as to whether he is subject to involuntary admission or in need of mental health services. The Department provides the court with a report and a hearing is held. The result can be an involuntary admission with a need for mental health services on an inpatient basis. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(a).) If it is so found, the court shall order the defendant to the Department:

“The defendant shall be placed in a secure setting unless the Court determines that there are compelling reasons why such placement is not necessary. Such defendants placed in a secure setting shall not be permitted outside the facility’s housing unit unless escorted or accompanied by personnel of the Department of Mental Health and Developmental Disabilities or with the prior approval of the Court for unsupervised on-grounds privileges as provided herein.” Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(a).

The initial order of admission shall be for an indefinite period of time, but shall not exceed the maximum possible sentence for the most serious crime for which defendant has been acquitted by reason of insanity. The trial court determines that maximum period of time by appropriate order. Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(b).

A defendant may petition for a transfer to a nonsecure setting within the Department “under the standards of [section 5—2—4(e)] in the court which rendered the verdict.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(e).) The findings of the court shall be established by clear and convincing evidence. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2— 4(g).) If the defendant brings the petition, the burden of proof and the burden of going forth with the evidence rests on the defendant. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(g).) Evidence is presented in open court, with the right of confrontation and cross-examination. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(g).) Section 5—2—4(a) of the Code states, in relevant part:

“(1) Definitions: For the purposes of this Section:
(A) ‘Subject to involuntary admission’ means: A defendant has been found not guilty by reason of insanity; and
(i) who is mentally ill and who because of his mental illness is reasonably expected to inflict serious physical harm upon himself or another in the near future ***.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(a).)

The element of danger to one’s self or another must be established by clear and convincing evidence, and the court’s determination thereon is subject to reversal if it is manifestly erroneous. (People v. Washington (1988), 167 Ill. App. 3d 73, 78-79, 520 N.E.2d 1160, 1163.) We conclude it necessarily follows that the order of the trial court requiring continued placement in a secure setting will not be reversed unless it is against the manifest weight of the evidence. Our court has also stated the test of a trial court’s decision on review is as follows:

“In a proceeding for involuntary commitment under the Act, the State is required to prove the necessary allegations of the petition by evidence, when it is all considered, that is clear and convincing. (In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273.) However, the reviewing court must give deference to the trial court’s decision and cannot set that decision aside because it, applying the above standard, would have ruled differently. In re Johnston (1983), 118 Ill. App. 3d 214, 454 N.E.2d 840.” In re Mazzara (1985), 133 Ill. App. 3d 146, 149, 478 N.E.2d 567, 569.

V. Analysis

A. Alleged Error in Entering Directed Verdict and Denying Petition

We first reject Ferguson’s argument about a “directed” verdict. At the close of his evidence, the State argued the petition should be denied because the choices are secure or nonsecure, with moderately secure not being a choice under the law. The court stated it was not satisfied that Ferguson would be securely kept in a facility other than Chester, and the judge was concerned that treatment with Prolixin might not be effectively administered at a different facility. He then denied the petition. Ferguson was given every opportunity to present his position; confrontation and cross-examination were available. Ferguson failed to meet his burden, and further evidence was not required.

The important issue on appeal relates to whether the trial court properly denied the requested relief. The initial finding of involuntary admission is not questioned, and the statute requires a secure setting. This requirement is controlling, unless a court determines there is a compelling reason why such placement is not necessary. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(a).) Section 5—2—4 of the Code is tailor-made for those acquitted of a crime because of mental illness. The presence of danger is recognized, and protection of the public is a major function of the statutory provision. Protection for the mentally ill is part of the section.

We find “secure setting” to mean exactly that—the patient must be kept in an environment where treatment is available but danger to others is curtailed. A “secure setting” allows more for the patient than the dungeons of the historic “insane asylums.” Classes, sports, and hobbies are available to help in the recuperative process. It appears that Chester, while being a secure setting, offers much more than a locked ward in a nonsecure mental health center.

We cannot fault the ruling of the trial court. The danger resulting from an interruption in Ferguson’s medication is clearly evident. An escape by him could lead to tragic consequences, and tight control over his drug treatment is an absolute requirement. We give deference to the trial court’s decision and determine it should not be reversed on appeal.

B. Claim that the 1987 Trial Court Order is Void

The original order directed placement at Chester. Section 5—2—4 of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4) does not give the trial court authority to provide for specific placement. “Determination as to which of its institutions is best suited for the confinement of a particular incompetent is left to the Department.” (People v. Lang (1967), 37 Ill. 2d 75, 80, 224 N.E.2d 838, 841.) However, the statute requires placement in a secure setting. It appears that the Department uses the Chester facility for “secure setting” placements. The court’s error was harmless and of no significance.

C. Claim That the 1987 Order Violated Right To Least-Restrictive-Treatment Alternative

Section 2—102(a) of the Mental Health and Developmental Disabilities Code (Disabilities Code) provides for “adequate and humane care and services in the least restrictive environment.” (Ill. Rev. Stat. 1991, ch. 91V2, par. 2—102(a).) Section 3—811 of the Disabilities Code requires the court to “consider alternative mental health facilities which are appropriate” (Ill. Rev. Stat. 1991, ch. 91½, par. 3—811), when a person is found subject to involuntary admission. Ferguson argues the court denied him these rights. Section 5—2—4(k) of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(k)) provides that section 5—2—4 shall govern when conflicts arise between that section and the Disabilities Code. We find no merit in Ferguson’s argument on this issue.

D. Claim That Timely Hearing On Pro Se Petition Not Provided

Section 5—2—4(e) of the Code requires the court to set a hearing on a petition such as Ferguson’s to be held within 30 days after receipt thereof. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(e).) The hearing was not set within 30 days. This issue was not raised on the trial level, and the record indicates delays by requests for counsel which were chargeable to Ferguson. We find no error.

E. Alleged Error in the Court’s Failure To Direct Notice of Hearings

Ferguson objects because the notice of hearing was not directed by the trial court. (See section 5—2—4(f) of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(f)).) The hearing was held, Ferguson was present, his counsel was present, his witnesses were present. No harm—no reversible error. The guarantees afforded by the trial court satisfied the purposes of section 5—2—4 of the Code. See In re Splett (1991), 143 Ill. 2d 225, 230-32, 572 N.E.2d 883, 885-86; In re Robinson (1992), 151 Ill. 2d 126.

For reasons stated herein, we affirm the trial court’s order denying the petition for transfer to a less secure facility than Chester.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREIMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM CARSON, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—1760
    Opinion filed November 12, 1992.

      Rita A. Fry, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Carol L. Gaines, and Joseph W. Colaianne, Assistant State's Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

William Carson was convicted of the murder of Terrence Jones and sentenced to 28 years’ imprisonment.

On appeal, defendant raises issues as to whether: (1) the trial court erred in refusing to allow defense counsel to admit into evidence codefendants’ statements which did not incriminate defendant in the murder; (2) the trial court erred in allowing a police officer’s testimony on gang activity that occurred prior to and during the period in which the victim was killed; (3) the prosecutor’s comments were so inflammatory, prejudicial and unsupported by evidence as to cumulatively deny defendant a fair trial; and (4) the trial court erred in failing to inform jurors during voir dire of the State’s burden of proof and the presumption of innocence.

We affirm defendant’s conviction.

At approximately 9:30 p.m. on May 20, 1986, 12-year-old April Murdock and 16-year-old Terrence Jones played outside of the highrise apartment buildings at the Cabrini-Green housing project where they lived. April heard a shot and felt a bullet pass by her ear. She and the victim ran toward the building at 1159 North Cleveland Avenue and paused near the outside stairs. April looked up at the 534 West Division Street building to determine the source of the shots. She testified that her attention was focused on that particular building because shots were often fired from there. She observed a window on the third floor from the top of the building with orange curtains and two people with dark skin looking out of the window. April testified that one person wore a white hat and the other held a rifle with a scope attached, and the rifle was pointed at the 1159 North Cleveland Avenue building where April and the victim stood. April ran into the 1159 North Cleveland Avenue building and within moments heard three or four more shots fired, one of which hit the victim, who fell to the ground.

Detective Thomas Blomstrand testified that April showed him and his partner, William Baldree, which window had the orange curtains at 534 West Division Street. Outside of apartment 1402, the officers noticed a gang symbol for the Black Gangster Disciples with the word “Mickey” written across it. Leslie Mickey, codefendant Robert Mickey’s mother, allowed the officers to look into her son’s bedroom, where orange curtains hung. The officers noticed that from the window there was a clear line of sight to the area where the victim had been shot. Detective Blomstrand testified that he recovered a white cap from the apartment of David Carson, the defendant’s brother.

Officer De Rosa testified that on June 12, 1986, three weeks after the murder of Terrence Jones, he and his partner investigated a report of a man with a shotgun in the vicinity of Larrabee and Division Streets, which is where the 534 West Division Street building is located. Officer De Rosa observed defendant standing in the lobby of the building at 534 West Division Street holding a red and black rifle case, while another man stood next to defendant holding a sawed-off shotgun at his side. The two suspects fled into the stairwell and defendant was later apprehended on the 14th floor of the 534 West Division Street building. Inside the rifle case, the officers found a loaded .22-caliber Remington Speedmaster rifle and numerous rounds of ammunition.

Officer Chenow testified that he performed tests on the .22-caliber rifle and found that although he could not say conclusively that it was used to kill the victim, it could not be ruled out. Thereafter, defendant was advised of his constitutional rights and subsequently gave a detailed account of the murder to Detective Baldree, implicating himself in the crime.

Defendant also made a court-reported statement to Assistant State’s Attorney Michael Gerber on June 13, 1986. In the statement, he recounts that at approximately 9:30 p.m. on May 20, 1986, he was in Robert Mickey’s bedroom in apartment 1402 at 534 West Division Street. Defendant’s brother, David Carson, and Robert Mickey were also there. Defendant stated that Robert Mickey fired a shot from his window toward the building at 1159 North Cleveland Avenue in the direction of the victim. Defendant recalled that after the first shot, Mickey started shaking and could not hold the gun steady. Defendant, who admitted that he was wearing a white painter’s cap at the time, wrapped his arms around Mickey in order to brace him, and another shot was fired toward the victim. Defendant further admitted that the gun recovered from him on June 12, 1986, was the same gun used in the murder. Defendant stated that he understood the victim to be a member of a rival gang, the Vice Lords, which was “on bad terms” with defendant and Mickey’s gang, the Black Gangster Disciples, and that the victim had previously shot at Mickey.

Defendant first argues that the trial court erred when it refused to allow into evidence the statements of codefendants David Carson and Robert Mickey because those statements were exculpatory as to defendant.

Defense counsel sought to introduce the statements of the codefendants because of the similarity of the two statements and the fact that both fail to state that defendant had any role in the victim’s murder. The absence of such a nexus could cast serious doubt in the minds of the jurors that defendant was guilty of the charged offense or that his confession was voluntary.

Extrajudicial declarations may be admissible under the statements-against-penal-interest exception to the hearsay rule. (People v. House (1990), 141 Ill. 2d 323, 566 N.E.2d 259; People v. Bowel (1986), 111 Ill. 2d 58, 66, 488 N.E.2d 995.) Bowel cites Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, holding that the determination to be made as to the admissibility of such a declaration is whether it was made under circumstances that provide “considerable assurance” of its reliability by objective indicia of trustworthiness. Bowel, 111 Ill. 2d at 67.

The criteria for trustworthiness set out in Chambers and adopted in Bowel are: (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and against the declarant’s interest; and (4) there was adequate opportunity for cross-examination of the declarant. The existence of all four factors is not required for a statement to be admitted, but there must exist other considerable assurances of the statement’s trustworthiness. House, 141 Ill. 2d at 390; People v. Nally (1991), 216 Ill. App. 3d 742, 768-69, 575 N.E.2d 1341.

In the present case, the trial court determined that the statements, inter alia, did not meet the first and fourth Chambers indicia and thus were inadmissible hearsay which was not trustworthy because they were not made to a close acquaintance shortly after the crime and the codefendants were unavailable for cross-examination.

Defendant relies on People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 501 N.E.2d 207, a murder and rape case, which found that the statements of two codefendants were sufficiently trustworthy where they were made to law enforcement personnel; corroborated by the physical and testimonial evidence presented at trial; incriminating and against the codefendants’ penal interests; and inconsistent with defendant’s confession, upon which the State’s prosecution was grounded. Kokoraleis, 149 Ill. App. 3d at 1020-26.

Defendant maintains that Kokoraleis is controlling since, as in the case at bar, the codefendants in Kokoraleis made their statements to police somewhat remote from the date of occurrence rather than to a close acquaintance. The court found such statements were more likely than not trustworthy since the statements would intensify police efforts to prosecute the declarants. Kokoraleis, 149 Ill. App. 3d at 1020-21.

However, although the trial court in this case acknowledged and considered Kokoraleis, Chambers and other cases relevant to this issue, it also had before it other evidence suggesting defendant’s culpability, such as the fact that the defendant was arrested in the location of the shooting with a rifle and bullets which later were shown to have characteristics similar to those used in the murder.

The trial court also noted that when the codefendants gave their statements, the identity of defendant and his participation in the murder were not yet known, allowing a reasonable inference that because defendant is the brother of codefendant David Carson, and because evidence reveals that all three defendants were members of the same gang, the codefendants might not implicate defendant in the murder at the time of their arrests.

The trial court placed significant weight upon the fact that the co-defendants were not available for cross-examination. Just as Bowel does not require all four of its suggested criteria be present to find a statement trustworthy, the opposite is also true: that simply because one or more of the four indicia are present does not make a statement trustworthy. (People v. Villegas (1991), 222 Ill. App. 3d 546, 551, 584 N.E.2d 248; Nally, 216 Ill. App. 3d at 770; People v. Hoffstetter (1990), 203 Ill. App. 3d 755, 774, 560 N.E.2d 1349.) It is for the trial court to determine by the totality of the circumstances whether it considers the extrajudicial statement to be trustworthy, and its determination will not be reversed absent an abuse of discretion. People v. Sanchez (1989), 131 Ill. 2d 417, 424, 546 N.E.2d 574; Villegas, 222 Ill. App. 3d at 551.

The trial court in this case was explicit in its findings that it had reviewed the statements, police reports and all other relevant evidence, and that, under the totality of the circumstances, it found the statements untrustworthy. Upon examination of the record, we find that the trial court did not abuse its discretion in making that determination.

Defendant next argues that the trial court erred in allowing Officer Davis to testify regarding gangs and gang wars in the area of the shooting relating to the time period in which the victim was murdered. The State argues that the testimony was introduced to show defendant’s motive for the shooting: a common plan to kill a rival gang member.

Motive is not an essential element of murder and the State has no obligation to prove it in order to sustain a murder conviction; however, any evidence which tends to show that an accused had a motive for killing the deceased is relevant because it enhances the probability that the accused did kill the deceased. People v. Easley (1992), 148 Ill. 2d 281, 326, 592 N.E.2d 1036; People v. Smith (1990), 141 Ill. 2d 40, 56, 565 N.E.2d 900.

For such evidence to be considered competent, it must, “at least to a slight degree, tend to establish the existence of the motive relied upon or alleged.” (Easley, 148 Ill. 2d at 326; Smith, 141 Ill. 2d at 56.) Thus, when the State undertakes to prove facts which it asserts constitute a motive for the crime charged, it must show that the accused was aware of those facts. Easley, 148 Ill. 2d at 326-27.

Defendant argues that the prosecutor’s closing remarks demonstrate that the officer’s testimony was not used simply to allow jurors to draw an inference as to the motive, but to prejudice defendant. The prosecutor referred to gang wars, including a statement that defendant was a member of a “sniper gang.”

Defendant directs us to People v. Cruz (1988), 164 Ill. App. 3d 802, 518 N.E.2d 320, in which the trial court erred by admitting an inflammatory documentary videotape detailing gang activities in the vicinity of the murder, in an effort to impeach defendant’s testimony denying gang membership. The State was unable to demonstrate that defendant’s motive was gang-related since none of the information in the video established it and the tape was shot at least three months prior to the murder.

Although public prejudice may exist against street gangs, gang-related evidence will not necessarily be excluded if it is otherwise relevant and admissible. (People v. Gonzalez (1991), 142 Ill. 2d 481, 489, 568 N.E.2d 864; Smith, 141 Ill. 2d at 58.) An accused may not insulate the jury from his gang membership where it is relevant to a determination of the case, simply because prejudice attaches to that revelation. People v. Nichols (1992), 235 Ill. App. 3d 499, 506-07; People v. Rivera (1986), 145 Ill. App. 3d 609, 618, 495 N.E.2d 1088.

In the present case, Officer Davis testified that he had spent eight years accumulating information on gangs and monitoring gang-related activity surrounding the Cabrini-Green housing project where the victim was shot. His testimony related only gang activity at the time of the shooting in question, May 1986, and the three gangs that were mentioned in the course of the evidence: the Black Gangster Disciples, the Vice Lords and the Cobra Stones.

Officer Davis testified that at the time of the incident, the Black Gangster Disciples were feuding with the rival Vice Lords, who were allied with the Cobra Stones, testimony which corroborated defendant’s own statement. The officer stated that he knew firsthand that all three defendants were members of the Black Gangster Disciples and that the victim was a member of the Cobra Stones.

Davis identified the gangs’ “turf” or territory within Cabrini-Green: the building at 534 West Division Street, where the shots were fired from, is Black Gangster Disciple turf, and the building at 1159 North Cleveland Avenue, where the victim was shot, is Cobra Stones territory. Officer Davis further testified that outside of apartment 1402 at 534 West Division Street was drawn a six-point black star, the gang symbol for the Black Gangster Disciples, with the word “Mickey” written across it; and on the victim’s body was a tattoo of a cobra snake with a king superimposed, the symbol for the Cobra Stones.

Davis’ testimony tended to explain the implications of gang involvement originally provided in defendant’s statement, which implied gang-related motives for the shooting.

The trial court determined that the probative value of the information outweighed the possible prejudice to defendant, and we can find no abuse of discretion in that ruling. Evidence was produced as to the gang affiliations of the defendants and the victim; that the two gangs were rivals “on bad terms”; and that Mickey told defendant that the victim had earlier shot at Mickey. The testimony was clearly limited to the gang situation at the time and place of the shooting and related only to the persons involved in the shooting.

We find that, according to Easley, the gang-related testimony presented by Officer Davis did tend to establish a motive of gang rivalry, certainly more than to a “slight degree,” and defendant was aware of the facts upon which the State based its argument for the motive. (Easley, 148 Ill. 2d at 326.) The evidence of gang membership may have provided the jurors with an explanation for the “seemingly inexplicable attack.” People v. Ayala (1990), 208 Ill. App. 3d 586, 592, 567 N.E.2d 450.

Further support for our finding comes in the recently decided supreme court opinion of People v. Lucas (1992), 151 Ill. 2d 461, which elaborated on Easley. In that case, defendant was convicted of killing a superintendent at Pontiac Correctional Center in retaliation for the death of a fellow Black Gangster Disciple gang member. The court found evidence of gang membership admissible where the defendant conceded he was a gang member and there was evidence that he was aware that there were plans to retaliate against the prison administration, defendant having attended a meeting of gang members. Lucas, 151 Ill. 2d at 479-80.

Circumstances in the case at bar are similar in that defendant admitted he was a member of the Black Gangster Disciples and that Mickey had told him, prior to the shooting, that the victim, a member of the rival gang, Cobra Stones, had earlier shot at Mickey. When Mickey took the gun several minutes later, pointed it and shot at Terrence Jones below, defendant was aware that Mickey intended to retaliate against Jones, just as the defendant in Lucas was aware that retaliation was contemplated.

Further, while defendant argued that the State made several inflammatory references to gangs during his opening and closing argument, we find that defendant failed to object to any of those references or raise them in his post-trial motion. Therefore, as to those statements, the issue is waived. People v. Reid (1990), 136 Ill. 2d 27, 38, 554 N.E.2d 174; People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124.

We next consider defendant’s claim that the State in closing argument made inflammatory and prejudicial statements and statements unsupported by the evidence.

Defendant argues that the cumulative effect of the prosecution’s statements that follow requires reversal of the conviction and a new trial: (1) the State’s comment that the .22-caliber ammunition found in the rifle case when defendant was arrested was “the same ammunition used to kill Terrence Jones”; (2) the State’s comment that the defense never asked Leslie Mickey who was in her son’s room on the night of the murder, although the prosecutor was aware of Mrs. Mickey’s retraction of her statement that she was in the apartment with her son that night; (3) the State’s question to the jury if “anywhere in the evidence did you hear that this hat that was floating around here belongs to David Carson”; (4) the State’s argument that defendant was “teaching” Mickey how to shoot when the victim was murdered; and (5) the State’s prediction that, at the time defendant was arrested with a gun in the same location as the murder, defendant perhaps was planning on doing more killing.

The defendant has failed to properly preserve these issues for review by objecting at trial and raising the specific issue in a post-trial motion. (Reid, 136 Ill. 2d at 38; Enoch, 122 Ill. 2d at 186-87.) However, to ensure that defendant receives a thorough and fair review, we shall address these issues under the plain error doctrine to determine if doubt is raised as to the validity of the jury’s verdict. People v. Mullen (1990), 141 Ill. 2d 394, 401, 566 N.E.2d 222.

The prosecutor is allowed considerable latitude in closing argument as long as the comments are based on the evidence or reasonable inferences therefrom. (People v. Young (1990), 206 Ill. App. 3d 789, 812, 564 N.E.2d 1254.) Improper prosecutorial remarks in closing argument do not warrant reversal unless the argument as a whole was so seriously prejudicial that it deprived defendant of a fair trial. People v. Cox (1990), 197 Ill. App. 3d 1028, 1041, 557 N.E.2d 288.

We read the State’s comment regarding the ammunition which defendant was found to be carrying when arrested as referring to the caliber of the ammunition, that it was the same caliber as the bullets used to kill Terrence Jones, and any prejudice to come of that statement is so slight that it did not deny defendant a fair trial. As for the State’s comment on Mrs. Mickey’s testimony, while the State was aware that Mrs. Mickey had retracted her statement that she was at home with her son the night of the shooting, such statement by itself did not seriously prejudice defendant.

We do not find the State’s comments in its rebuttal on the hat allegedly worn by defendant to be prejudicial. Given the wide latitude allowed a prosecutor, the State could properly comment that there was no evidence presented that David Carson owned the hat. Defense counsel in closing referred to the hat as David Carson’s, so the prosecutor’s question in rebuttal as to the evidence of ownership of the hat was properly invited by the defense.

Likewise, we find no error in the State’s comment that defendant was Robert Mickey’s “teacher.” Defendant’s own statement clearly lends such a description to the incident: because Mickey was shaking badly, defendant leaned over and braced Mickey’s body with his to steady him, and placed his hands on Mickey’s hands while the shots were fired.

While it was improper for the State to comment that, at the time of his arrest, defendant was “going to do some more killing,” the trial court sustained defendant’s objection and later admonished the jury that such comments were to be disregarded.

Mullen, relied upon by defendant, is not analogous. There the prosecutor erroneously made remarks in his rebuttal which the trial court had specifically forbidden, and argued critical facts not supported by the record in a closely balanced case. (Mullen, 141 Ill. 2d at 404-05.) Here, along with defendant’s confession, defendant was arrested at the scene of the crime three weeks later carrying a rifle and ammunition, the same type which was used to kill the victim. We cannot say that the prosecutor’s comment as to where defendant was going at the time of his arrest was so prejudicial as to raise doubt as to the validity of the jury’s verdict. (Mullen, 141 Ill. 2d at 402.) Further, the trial court’s admonishment to the jury that opening and closing arguments are not evidence additionally aided in preventing prejudice against defendant.

Defendant next argues that it was improper for the State to remark that Assistant State’s Attorney Michael Gerber, a witness to defendant’s confession, would not jeopardize his law license to falsely testify against defendant.

While counsel may not argue that the testimony of a witness is more credible merely because of his profession (People v. Ford (1983), 113 Ill. App. 3d 659, 447 N.E.2d 564), where the complained-of remarks are in response to opposing counsel’s own statements contradicting the credibility of a witness, there is no prejudicial error. Young, 206 Ill. App. 3d at 812.

Although such an observation is ill-advised, the prosecutor’s comments were made in rebuttal to defense counsel’s inferences that because Detective Baldree and Assistant State’s Attorney Gerber were at times alone with defendant, defendant was coerced into making his statement. While defendant denies this was the inference intended, such a comment coincides with defendant’s theory that his statement was coerced, and the witnesses’ credibility has been challenged.

Defendant also contends that the prosecutor’s comments in closing argument violated the trial court’s order prohibiting the State from arguing that shots had been fired from the Mickey apartment on occasions prior to the shooting at issue. Defendant cites the State’s remarks as error:

“And at the time that the first shot is fired out the window, April Murdock runs to the entrance of a breezeway to take cover. And Terrence Jones also goes by the breezeway. But he doesn’t take cover enough. And April Murdock looks up at the orange curtains and looks at the building at 534 West Division. And the reason she looks up there is because there has been shooting from there before.”

The record demonstrates that the trial court’s intention was to specifically prohibit the State from arguing that witnesses had seen shots fired from the Carson window on prior occasions, but expressly allowed the State to argue that shots had been fired from the building previously.

The State’s comment did not violate the court’s limitation on the evidence, nor did it substantially prejudice defendant’s right to a fair trial. The jury had already heard April Murdock’s testimony that shots had been fired from the building previously, and the State properly commented on that testimony. We disagree with defendant that the comment unequivocally means that April had seen shots from the Carson window. We find that the phrase “she looks up there” refers to the building in general, and not the window in question. Further, the trial judge admonished the jury that closing arguments were not evidence.

We determine that defendant’s alleged errors do not amount to prejudicial error, either alone or cumulatively, since they raise no doubt as to the validity of the jury’s verdict. Mullen, 141 Ill. 2d at 402.

Defendant finally contends that the trial court erred because it failed to voir dire all the jurors on the State’s burden of proof and the presumption of innocence.

Jurors in a criminal case must be aware that a defendant is presumed innocent, that he is not required to present evidence, that the State must prove him guilty beyond a reasonable doubt and that the defendant’s failure to testify cannot be used against him. (People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062.) In People v. Emerson (1987), 122 Ill. 2d 411, 425, 522 N.E.2d 1109, the supreme court stated that where a trial court explains to the venire as a whole, prior to voir dire questioning, that a defendant is presumed innocent, need not present evidence and must be proven guilty beyond a reasonable doubt, it may decline to ask those specific questions of jurors, even when a defendant so requests.

The Emerson court observed that Zehr did not prescribe a precise formula for trial judges to use in ascertaining jurors’ prejudices or attitudes, and that the trial judge’s general admonition coupled with his later discussion of presumption of innocence satisfied Zehr. Emerson, 122 Ill. 2d at 426-27.

In the present case, the trial court advised the jury of the Zehr standards on at least four occasions. At the start of voir dire, the trial court explained the trial process and the fact that a defendant is presumed innocent until the State proves him guilty beyond a reasonable doubt. Then, on four other occasions, he asked the venire as a whole if they could be impartial, if they understood that defendant is innocent until proven guilty beyond a reasonable doubt, and if they had a problem meeting those standards or making those distinctions. The trial judge then answered questions from the individual prospective jurors on the subject, further explaining the process to them. We find that such explanation and questioning clearly meet the requirements of Zehr as approved in Emerson, that the trial court adequately ensured a fair and impartial jury and there was no error.

For all of the foregoing reasons, defendant’s conviction is affirmed.

Affirmed.

RIZZI and CERDA, JJ., concur.


author: JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VLADMIR MARSAN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1168
    Opinion filed November 12, 1992.

      Gordon H. Berry, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, Theodore F. Burtzos, and Stephen E. Ferrucci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

Following a jury trial, defendant Vladmir Marsan was convicted of possession with intent to deliver 900 grams or more of a controlled substance (cocaine). (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.1(3).) He was sentenced to 20 years in prison. On appeal, defendant contends that: (1) the sentence imposed was excessive; and (2) the recent amendment to the Controlled Substances Act (Act) (Ill. Rev. Stat. 1987, ch. 56½, par. 1100 et seq.) increasing the penalty for possession of 900 or more grams of cocaine to a range of 15 to 60 years is unconstitutional.

Steven Mitchell testified that about 9 a.m. on October 23, 1988, he was working at the Amoco service station located at 7600 West North Avenue in Elmwood Park. Since he had opened the service station at 5 a.m., only two patrons had made cash sales and he saw no other individuals on the property before defendant arrived. Defendant entered the station carrying a brown paper shopping bag which he set down by the entrance after he entered. The bag looked a bit tattered, as if it had been rolled up and down several times. After defendant purchased cigarettes, he remained, clutching something in his abdominal area. He “seemed to have something that he was having a hard time keeping in place.” Defendant told Mitchell he had a gun and they conversed for a while. Defendant then picked up the bag and left. Mitchell testified that when defendant told him he had a gun, he did not feel threatened at all.

After defendant stepped outside, Mitchell called the police and watched defendant walk to the soft drink machines that were located on the southwest corner of the Amoco lot. The machines were about a foot in front of a wall and were separated by only a few inches. As Mitchell described defendant to the police, defendant stood in front of the machines and squatted down. When defendant stood up, he was no longer holding the brown bag. Mitchell got off the phone just before defendant reentered the station.

Defendant asked Mitchell for change and then proceeded to use the pay telephone located outside on the east side of the gas station. The police called Mitchell back for a description of defendant. Shortly thereafter, the police apprehended defendant.

Police officer Bruñe DePasquale testified that defendant had just hung up the phone when he pulled up to the scene. DePasquale searched defendant while back-up units arrived. No gun or cocaine was found on defendant. DePasquale testified that he recovered a .38-caliber gun loaded with four rounds from behind the soft drink machines while Sergeant Ronald Pucillio retrieved a brown paper bag from in between the machines in open view. Upon opening the bag, Pucillio found three brown taped packages with white dust on them.

Deborah Davis, a forensic chemist, testified that the packages weighed 937.2 grams, 928.9 grams, and 958.3 grams, respectively. Additionally, the contents contained 62% cocaine. Officer John Minton testified that a kilogram of cocaine with a purity of 62% would have an estimated street value of $200,000.

At the sentencing hearing, in aggravation the State focused on the large quantity of cocaine (totaling close to three kilograms) and the street value per kilogram of 62% pure cocaine (approximately $200,000 per kilogram). Additionally, the State argued that defendant’s conduct generally was a threat to society, especially since defendant carried a gun. The presentence investigation report indicated defendant had no prior criminal record.

In mitigation, the defense called defendant’s father, Silvia Mar-son, and his cousin, Cecilia Hernandez. Marson testified that since he brought his family here from Cuba, his son had been gainfully employed, having obtained an EKG technician certificate (in cardiology) from Triton College. Prior to this arrest, his son had never been in trouble. In the summer of 1988, his son was laid off from a job at the University of Florida so he returned to Chicago to seek employment. Additionally, Cecilia testified that from 1980-83 prior to his going to Florida, defendant lived in her neighborhood and they were very close. During that time, he worked and studied. His father kept an envelope of his employment records. During the time Cecilia had known defendant, she never knew him to be in trouble. The defense also argued defendant’s conduct was not threatening but rather friendly in nature. Defendant told the trial court only that he was innocent of all charges.

In sentencing defendant, the trial court stated that it considered the facts of the case, the factors in aggravation and mitigation, as well as his lack of prior criminal history and his effort to become a useful citizen. Defendant contends that the 20-year sentence imposed was excessive because this was his first criminal offense, he had a good work history and study record and his conduct indicated that he was not a highly culpable offender.

This court granted rehearing on the resentencing issue only and directed the parties to submit briefs. Upon reconsideration of the issue and arguments presented, we adhere to the previous conclusion which follows.

Possession of 900 or more grams of cocaine with intent to deliver is a Class X felony. The sentencing range for a Class X felony shall be not less than 15 years and not more than 60 years. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.1(3).) It is well settled that sentencing decisions of the trial court are entitled to great weight and deference, and if the sentence imposed is within the statutory guidelines, reviewing courts may not reduce sentences absent a finding that the trial court abused its discretion. Although we have the discretionary power to reduce an excessive sentence pursuant to Supreme Court Rule 615 (134 Ill. 2d R. 615(b)(4)), the supreme court has frequently stated that the trial court is normally in a better position to consider and determine the appropriate punishment rather than the court of review. The well-reasoned judgment of the trial court includes defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.

A defendant’s lack of prior criminal record is not necessarily the most persuasive consideration at sentencing (People v. Streit (1991), 142 Ill. 2d 13, 566 N.E.2d 1351), and in fact, the seriousness of the crime has been called the most important factor to be considered in imposing the sentence. (People v. Hernandez (1990), 204 Ill. App. 3d 732, 740, 562 N.E.2d 219.) It is undisputed that defendant’s 20-year sentence was at the low end of the statutory range of sentencing for this offense. Given the seriousness of this offense, the nature and circumstances of this case and defendant’s criminal history, we cannot say that the trial court abused its discretion in sentencing defendant.

Next, defendant contends the recent amendment to the Act is unconstitutional as an “irrational and unequal overall sentencing scheme” when compared with sentences for other serious offenses in Illinois, such as Class 1 offenses, Class X offenses and murder.

When there is a due process challenge to a statute, the statute must be reasonably designed to remedy the evil that the legislature has determined to be a threat to the public. (People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029, 1032.) The Illinois Supreme Court has upheld the constitutionality of a graduated penalty scheme providing for punishment based upon the amount of substance containing cannabis, rather than on the amount of pure cannabis. (People v. Mayberry (1976), 63 Ill. 2d 1, 345 N.E.2d 97.) The court held that the statute was reasonable because the legislature “may have believed that any given amount of drug can be distributed to a greater number of people and thus have a greater potential to be harmful if it is mixed with another substance.” (Mayberry, 63 Ill. 2d at 9.) Since the Mayberry decision, all Illinois appellate districts have upheld similar classification schemes involving other drug offenses. (People v. Hermann (1988), 180 Ill. App. 3d 939, 948, 536 N.E.2d 706.) Defendant’s argument that he is a first-time offender is irrelevant under the statutory scheme here. People v. Hermann, 180 Ill. App. 3d at 948.

Legislation will survive a substantive due-process challenge so long as it is reasonably designed to remedy the evils the legislature has determined to be a threat to the public health, safety, and general welfare. (People v. Upton (1986), 114 Ill. 2d 362, 373, 500 N.E.2d 943.) The statute, therefore, is not unconstitutional although its penalties are based on the amount of substance containing a controlled substance. The need to eliminate the threat to society from drugs, whether sold by a major trafficker or small dealer, as recognized by the statute provides a reasonable basis for the statute’s classification.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

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


text:
    MANUEL MONREAL, Petitioner-Appellant, v. SALVATORE SCIORTINO, Respondent-Appellee.
    First District (3rd Division)
    No. 1—91—2763
    Opinion filed November 12, 1992.
    Steven A. Salzman, of Schmidt & Salzman, Ltd., of Chicago, for appellant.

      William O. Krohn, of Krohn & Jenkins, of Chicago, for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Petitioner, Manuel Monreal, appeals the circuit court’s order denying his motion to expunge the redemption made by respondent, Salvatore Sciortino, following petitioner’s purchase of certain property at a tax sale under the Revenue Act of 1939 (the Act) (Ill. Rev. Stat. 1989, ch. 120, par. 482 et seq.).

The sole issue on appeal is whether or not respondent was entitled to redeem the subject property.

We find that respondent falls within the category of persons entitled to redeem, and thus, we affirm.

On April 19, 1988, petitioner purchased two vacant lots which were sold for delinquent taxes pursuant to the Act. These two lots are the subject of this appeal and are identified as permanent index Nos. 16-26-424-045 and 16-26-424-047.

Petitioner also purchased another vacant lot identified as permanent index No. 16—26—424—046, which is located between the two above-identified lots. Lot No. 6—26—424—046 was not redeemed and is not at issue.

On April 19, 1990, petitioner filed a petition for a tax deed and then, as required by the Act, caused notice to be served upon the owners, occupants, and parties interested in the subject property. Respondent was among those parties served notice.

Respondent redeemed the subject property in a timely manner. Thereafter, petitioner filed a motion to expunge the redemption claiming that respondent was not a party interested in the real estate entitled to redeem within the meaning of the Act.

In response to petitioner’s motion, respondent asserted that he made the redemption to protect his ownership interest in the property, which was the subject matter of his complaint to establish a trust and filed in chancery on March 14, 1985. In his pending 1985 complaint, respondent claimed that he was an owner of an undivided one-half interest in the property. A Us pendens notice of the chancery action was recorded in March 1985.

On June 21, 1991, a court order was entered in the chancery action declaring respondent to be an owner in the subject property as to an undivided one-half interest.

On August 5, 1991, following a hearing, the circuit court denied petitioner’s motion to expunge redemption and found that respondent had sufficient interest to redeem. This August 5, 1991, order is the subject of the present appeal.

Petitioner now contends that the chancery court order cannot constitute a prior judgment for res judicata or estoppel by judgment purposes so as to establish respondent’s ownership interest in the tax deed proceeding because (1) the chancery order was a default judgment and thus was not a judgment on the merits where the question was actually litigated; and (2) petitioner was not a party to the chancery proceedings. Petitioner argues that he has been substantially harmed because he made improvements on the subject property which he used as a parking lot to accommodate patrons of his nightclub. Petitioner asks this court to remand the matter for an evidentiary hearing to require respondent to substantiate his claim to the property rather than relying upon the chancery court order.

Respondent contends that neither the Act nor the Illinois Constitution requires more than an interest in the real estate on the part of the redeeming party. Respondent argues that sufficient interest in the property was established by (1) the chancery decree, which is not subject to collateral attack in the tax deed proceeding; and (2) the lis pendens notice, recorded in March 1985, of the chancery proceedings. Respondent further argues that a default judgment is entitled to the same kind of recognition as any other judicial determination.

Both the Illinois Constitution and the Act establish the right of redemption from tax sales of property to “persons interested” in the property. Section 8(b)(1) of article IX of the Illinois Constitution provides:

“(b)(1) The right of redemption from all sales of real estate for the non-payment of taxes *** shall exist in favor of owners and persons interested in such real estate for not less than two years following such sales.” (Emphasis added.) Ill. Const. 1970, art. IX, §8 (as amended eff. Jan. 1, 1981).

In accordance with these constitutional principles, section 253 of the Act provides:

“Real property sold under the provisions of this Act may be redeemed by owners and persons interested in the real estate, other than undisclosed beneficiaries of Illinois land trusts, whether or not the interest in the property is recorded or filed.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 120, par. 734.

The issue in a proceeding to vacate a redemption is simply whether the redeeming party has shown a sufficient interest to give him a right to redeem under the statute. In re Application of Du Page County Collector (1981), 98 Ill. App. 3d 950, 953, 424 N.E.2d 1204 (Fron v. Bodoh) (an adverse possessor has the right to redeem).

Courts have held that the following persons have possessed an interest sufficient to allow a right to redeem: an adverse possessor (Du Page County Collector, 98 Ill. App. 3d 950, 424 N.E.2d 1204); an agent with apparent authority to act for an owner (Houston v. Buer (1886), 117 Ill. 324, 7 N.E. 646); a beneficial owner of stock owned by a dissolved corporation even though the property was not listed as an asset in the dissolution of the corporation (People v. Hess (1955), 7 Ill. 2d 192, 130 N.E.2d 280); an equitable title holder under an agreement to convey (Franzen v. Donichy (1956), 9 Ill. 2d 382, 137 N.E.2d 825); a grantee of an heir of a contract purchaser who received no deed (In re Application of the County Treasurer (1965), 63 Ill. App. 2d 135, 211 N.E.2d 127); the executor of an estate (In re Application of the County Collector for Judgment & Sale Against Lands & Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1961 & Prior Years (1966), 72 Ill. App. 2d 272, 218 N.E.2d 244); an assignee of a beneficial interest in a land trust (In re Application of the County Treasurer (1973), 16 Ill. App. 3d 385, 306 N.E.2d 743); a neighbor seeking to purchase a lot from a mortgagee acted as an agent for the mortgagee (Purdy v. C.H. Strong Elevator, Inc. (1975), 29 Ill. App. 3d 894, 331 N.E.2d 630); and a person who had lived on the property for more than 30 years even though he was no longer a record title holder (In re Application of County Collector (1977), 49 Ill. App. 3d 1048, 365 N.E.2d 697). See Du Page County Collector, 98 Ill. App. 3d at 953 (and cases cited therein).

Clearly, neither the constitution nor the Act nor case law requires a property interest be established so that it would rise to the level of ownership. Instead, a redeemer need only have an undefined interest in the real estate. In re Application of Anderson (1987), 162 Ill. App. 3d 815, 828, 516 N.E.2d 860.

The established framework for redemption accords with the public policy which looks favorably upon redemption from tax foreclosure sales and requires the liberal construction of redemption laws. In re Application of the County Collector for Judgment Order of Sale Against Lands & Lots Forfeited for Nonpayment of General Taxes & Special Assessments for the Year 1985 and Prior Years (1991), 220 Ill. App. 3d 933, 936, 581 N.E.2d 367 (Ohr v. Travelers Mortgage Services, Inc.).

We find that respondent’s interest as claimed through his chancery complaint which was filed three years before petitioner purchased the subject property for delinquent taxes and as decided by the chancery court in June 1991 was certainly sufficient to entitle him to the right of redemption. Even if there had been no declaration of title by the chancery court, respondent would probably have had a sufficient interest to allow him to exercise rights of redemption.

We reject petitioner’s argument that he was substantially harmed as a taxbuyer. The right of a holder of a tax certificate to receive a deed is subservient to the right of a person interested in the property to redeem. (Du Page County Collector, 98 Ill. App. 3d at 952.) “The mere failure of the tax certificate holder to get a deed does not injure him, since the purchaser recovers the amount paid for the certificate from the court after the redemption.” (Du Page County Collector, 98 Ill. App. 3d at 952.) Petitioner, as holder of the tax certificate, may not assert any equitable claims for improvements made to the premises and his position is in no way enhanced by such effort.

We also reject petitioner’s contention that an evidentiary hearing should have been held in the circuit court proceedings because proceedings to vacate a redemption are not designed or appropriate for trying substantial disputes as to titles. Du Page County Collector, 98 Ill. App. 3d at 953.

Moreover, we disagree with petitioner’s assertion that respondent’s ownership interest is somehow tainted because the chancery court order was a default judgment. Judgments by default have the same validity and force as those rendered upon a trial of the issues. Menconi v. Davison (1967), 80 Ill. App. 2d 1, 6, 225 N.E.2d 139.

We also note that neither the State Constitution nor the Act requires the property interest claimed by a person seeking to redeem to be recorded or filed. However, in the present case, respondent clearly made his interest known by recording a lis pendens notice of the chancery action. Apparently, respondent’s interest was such that petitioner believed him to be a necessary party to be served.

The lis pendens doctrine operates to avoid endless litigation of property rights (Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 136, 427 N.E.2d 1032), and any one who acquires a right or interest in property during the pendency of a suit concerning it is bound by the result of the action. (O’Laughlin v. City of Chicago (1976), 65 Ill. 2d 183, 193, 357 N.E.2d 472.) Since the principle of lis pendens operates in rem, persons not parties to the litigation and not even subject to the jurisdiction of the court in the case are bound. Allen & Korkowski & Associates v. Pettit (1982), 108 Ill. App. 3d 384, 389, 439 N.E.2d 102.

For all the foregoing reasons, we affirm the circuit court’s order denying petitioner’s motion to expunge the redemption effectuated by respondent.

Judgment affirmed.

RIZZI and TULLY, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARION HOLMES, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—3713
    Opinion filed November 13, 1992.

      Alan D. Goldberg, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Maureen Hartón, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant Marion Holmes and codefendant William Franklin were tried separately and convicted of the murder of Elgin Evans. The State’s key witness at both trials, Ulric Williams, had been present during the murder. In order to protect the credibility of Williams’ testimony at Holmes’ trial, the State characterized Williams as an innocent bystander to the murder and further denied that Williams’ testimony was in any way motivated by an expectation for prosecutorial leniency concerning his involvement in the murder. Holmes filed this appeal arguing that, in light of the evidence in the record, the State’s conduct violated his right to due process. We agree with Holmes and, accordingly, reverse and remand for a new trial.

On February 6, 1980, Elgin Evans was murdered behind the Ford Motor Company plant located on 16th Street in Chicago Heights, Illinois. Three men were present during the murder: Marion Holmes, William Franklin, and Ulric Williams. Holmes and Franklin were tried separately for the murder and Williams testified for the State in each trial.

At Holmes’ trial, Williams testified to the following occurrence facts. He had known Holmes for 11 years and the two were close friends. He had also known Franklin for five years, but they did not see each other often. On the first Sunday in February 1980, Williams went with Holmes and Franklin in a car to look for Elgin Evans. Holmes explained to Williams that Evans had ripped-off a gambling game that had been organized by a friend of Holmes, known as “Eddie.” They did not locate Evans on that Sunday.

On February 6, 1980, Williams went to Holmes’ house in Harvey, Illinois, to do some mechanical work on Holmes’ car. Franklin pulled up in front of the house with a passenger in his car. Franklin indicated that the passenger was “Elgin.” After Franklin and Holmes talked privately for about 15 minutes, Holmes said that they were all going to go for a ride. While Williams drove the car, Holmes and Franklin discussed a . plan to dispose of some stolen auto parts. Holmes also told Evans that he would front him some “product” (cocaine). However, there was no discussion about any harm coming to Evans and Williams did not think that Evans had any reason to fear for his safety.

Holmes directed Williams to drive to a Coca Cola bottling plant in Markham, Illinois, but as they approached the plant, they saw a Markham police car and Williams drove away.

Holmes told Williams to drive to Chicago Heights, where they arrived at the Ford Motor Company plant on 16th Street. Williams parked the car in the loading dock area between two semi-trailer trucks. Williams then turned off the motor and opened the driver’s door. Holmes told Williams, “We don’t need you for this,” and Williams handed Holmes the car keys. Holmes told Evans, “Elgin, give us a hand with this.”

Williams watched through his rearview mirror as Holmes, Franklin, and Evans walked to the trunk of the car. Evans was standing between Holmes and Franklin. As the trunk popped open, Franklin and Evans turned their heads to see if anyone was watching. Franklin then removed a small pistol from his coat, held the pistol 12 to 14 inches from the right side of Evans’ head, and fired one shot. Evans dropped to the ground. Williams heard the trunk slam shut and then heard Holmes say, “One more for good measure.” Still watching, Williams saw Franklin turn slightly and shoot Evans a second time.

Holmes and Franklin returned to the car. Williams had difficulty starting the car because he was nervous. Holmes asked Williams if he was going to vomit, but Williams said no. As he drove the car away, he saw Evans’ body lying in the snow. Holmes directed Williams to drive northbound on the Calumet Expressway. Williams looked in the rearview mirror again and saw Franklin disassemble and clean the pistol. Holmes told Williams to drive slowly over the Cal-Sag Channel bridge allowing Franklin to throw the pistol out of the window. The pistol was never recovered.

Holmes warned Franklin that he would be the first suspect and that he should stay out of sight for a while. Williams returned home, but he did not report the murder to the police.

After the murder, numerous other events occurred which are relevant to this appeal. We set forth those events in chronological order. One month after the murder of Elgin Evans, while Holmes, Franklin, and Williams were still at large, two armed men robbed a McDonald’s Corporation clearinghouse located in Chicago Heights the consequence of which caused the law enforcement officials to immediately begin an investigation.

Eighteen months after the armed robbery, Williams was taken into custody in Lake County, Indiana, for questioning on an “unspecified offense.” Both Federal agents and the local police were involved in the questioning. Williams was placed into a maximum security cell for two days. During this time, Holmes and another man, Gary Peoples, were taken into custody at the same facility and were placed into cells next to Williams. According to Williams, Holmes threatened to kill him. Fearing for his life and the life of his family, Williams asked to speak to “one of the authorities.” Agents James Collier and Tom Pritchett of the Illinois Department of Law Enforcement went to visit Williams. Williams told the agents that he had knowledge of an armed robbery and a murder. Williams had several conversations with the agents in which he implicated himself and Holmes in the armed robbery of the McDonald’s Corporation clearinghouse and Holmes and Franklin in the murder of Elgin Evans.

Subsequently, Williams and Holmes were arrested and charged with armed robbery and with murder. Franklin was arrested and charged with murder.

On March 9, 1982, Williams testified for the State at the preliminary hearing on the murder charges against Holmes and Franklin and repeated substantially the same details of the murder as set forth above. However, the following exchange also occurred between Williams and counsel for Holmes:

“Q. [Defense Counsel:] Mr. Williams, are you — have you been promised any benefits, rewards, or immunities in regard to your testimony here today?
A. [Mr. Williams:] No, I have not.
Q. You have no expectation of receiving any benefits, awards, gifts, or anything else for your testimony here today, is that correct?
A. I don’t know how to answer that. When you say expectation, are you talking about what I hope, or what I have been promised?
Q. What you hope?
A. Yes, I do.
Q. And you have discussed that with law enforcement agencies, at least as to what your expectations are, have you not?
A. Yes.
Q. Would you tell his honor what some of those expectations are?
A. I hope that I would be, my part in this particular crime would be considered for the part that it was.
Q. And that is to say you were an innocent bystander to an uncertain event?
A. Yes.”

Also at this preliminary hearing, Williams testified that while he was in custody in Lake County, Indiana, the law enforcement officials requested to speak with Williams about the armed robbery and murder, not vice versa. At the end of the preliminary hearing, the court found that probable cause existed to support the murder charges against Holmes and Franklin.

Nine days later, another preliminary hearing was held concerning the murder charge against Williams. After Agents Collier and Pritchett testified for the State, the court found that there was insufficient evidence showing that Williams had the requisite mental state for his accountability for the murder and found that probable cause did not exist. The murder charge against Williams was then dismissed.

Sometime on or before September 21, 1982 (the record does not reflect an exact date), Williams gave a statement to authorities in Will County, Illinois, ostensibly as part of a Federal investigation involving Gary Peoples. In his statement, Williams disclosed information concerning a variety of criminal activities. However, Williams also disclosed information specifically concerning his own involvement in the murder of Elgin Evans. Williams stated:

“Eddie’s lounge had been robbed. They found out who had set it up, his name was Elgin Bogan [it is clear from the record that this was the victim, Elgin Evans]. Holmes was known to be a hit man for Eddie and just a killer anyway. He had, he was the bouncer of the lounge at one time, he shot someone in the lounge, and, uh, it’s just known in the Heights that Holmes was dangerous. So when we started asking for Elgin Bogan, people would say, ‘Marion, we don’t know where Elgin is.’ But Elgin’s got problems, Eddie got a hit on him ’cuz he knew he robbed his place. In fact, Bogan came to Eddie and told him, he says, ‘Man, I hear you think I set that robbery up. I didn’t do it, I didn’t do it. If you got a hit on me please take it off.’ Eddie told him, he says, ‘No, I don’t know nothing about it.’ But now Holmes owes Eddie $8,600 for that cocaine. He took the hit from Eddie. But he couldn’t get any, realize any cash from him because he owes the man. So, we went in a couple places, and no one knew me from the Heights, and I would ask for Elgin and people had the plague about that; they knew what was happening. So, maybe three or four days passed by, Holmes had come in from work drunk as usual and left his headlights on and his car wouldn’t start. So I’m out there jumping his car when Franklin pulls up in his car with someone in there. He tells us, I got Elgin in the car.
***
Holmes had stipulated that he was supposed to whoop his ass or break his nose or something. So we got in Franklin’s car and I drove; we went to Chicago Heights.
***
Yes, it was actually supposed to have been Holmes’ contract. *** It was Holmes’ contract because Eddie paid Holmes x number of dollars and Holmes gave Franklin some cocaine.”

However, this statement was not used against Williams at his preliminary hearing because, according to the State, the statement was not taken until after his preliminary hearing.

In 1985, Holmes was tried for the armed robbery. Williams testified for the State in this trial. Holmes was convicted and sentenced to 15 years in prison. The conviction and sentence were affirmed on appeal. (People v. Holmes (1987), 155 Ill. App. 3d 562, 508 N.E.2d 405; People v. Holmes (1990), 141 Ill. 2d 204, 565 N.E.2d 950.) Williams pled guilty to the armed robbery pursuant to which the State recommended and Williams received the minimum six-year sentence. The State also agreed to relocate Williams’ family and to pay a portion of the relocation expenses.

The murder trials of Holmes and Franklin commenced in 1988. At the time that Williams offered his testimony in these trials, he had been released from prison and was relocated with his family. Franklin was convicted as the triggerperson in the murder and was sentenced to death (Franklin had also been convicted for an unrelated murder several years earlier but was released from prison). The supreme court affirmed Franklin’s conviction and death sentence on direct appeal. People v. Franklin (1990), 135 Ill. 2d 78, 552 N.E.2d 743.

Finally, we set forth those portions of Holmes’ trial which are directly relevant to his claims on appeal. During opening statements, the State told the jury that Williams was an innocent bystander to the murder and further denied that Williams’ testimony was in any way motivated by an expectation for prosecutorial leniency concerning his involvement in the murder. The State explained:

“You will learn that Williams told the State Police detectives about two crimes that he was aware of, an armed robbery that he himself was involved in, and the murder of Elgin Evans.
The evidence will show that those detectives conducted their own, independent investigation of what Mr. Williams had told them and they had, in fact, corroborated the information he gave them. Mr. Williams was, in fact, charged with the armed robbery that he made the police aware of in November 1981. Mr. Williams also was charged with the murder of Elgin Evans and the evidence will show you that he went to a preliminary hearing before a judge and that the court found no probable cause or dismissed that complaint against him and that the evidence was insufficient as to his involvement in the actual plot to minder.
Ladies and gentlemen, the evidence will show that at that point, Mr. Williams reached an agreement -with the police authorities and his agreement was that in exchange for his truthful testimony in the Elgin Evans murder trial, the State would recommend that he go to prison for six years on the armed robbery charge that he was facing. The evidence will show you that Mr. Williams did, in fact, plead guilty to the armed robbery that he made the police aware of; that he was sentenced to six years in prison; and that he did serve his time. The evidence will also show that as part of that same agreement, Mr. Williams and his family were relocated to a place of safety.”

In other words, the State maintained that the agreement with Williams concerning his testimony against Holmes and his codefendant, Franklin, extended only to the deal on the armed robbery charge and to the relocation of his family.

In defendant’s opening statement, counsel reminded the jury that the State’s characterization of Williams in its opening statement was not evidence. Counsel cautioned the jury to carefully listen to the testimony presented at trial.

During Williams’ direct examination, he admitted that he knew that Holmes was looking for Elgin Evans in order to “break his legs.” He also testified that he received “no promises” when he talked to Agents Collier and Pritchett in Lake County, Indiana. He further explained that he was charged "with the murder but the charge was dismissed after his preliminary hearing. Williams admitted that he had an extensive criminal record which included the conviction for armed robbery. Williams then described his agreement with the State: “I was told that the State would recommend six years on my armed robbery conviction if I would testify truthfully in this case and the armed robbery case.” He added that the State agreed to safely relocate his family and pay for part of the relocating expenses. Williams did not admit, as he did in Holmes’ and Franklin’s preliminary hearing, that he had multiple discussions with the law enforcement officials about his own involvement in the murder and that he was offering his testimony with the expectation of receiving leniency from the State. At the end of the direct examination, the State published to the jury a certified half-sheet showing the no-probable-cause finding entered in favor of Williams on the murder charge.

On cross-examination, Williams admitted that he spoke with agents of the Federal government while in Lake County, Indiana, and that at the time of the preliminary hearings he was under Federal protective custody. He also admitted to having made the Will County statement but did not recall whether he discussed the murder of Elgin Evans. He thought that he gave the Will County statement before his own preliminary hearing. Defense counsel, however, did not impeach Williams concerning the substance of the Will County statement which, as we stated above, described in shocking and graphic detail his own involvement in the murder. Counsel also failed to impeach Williams pursuant to his testimony at Holmes’ and Franklin’s preliminary hearing. In sum, Williams was never questioned whether he was offering his testimony with the expectation that he would receive leniency from the State concerning his involvement in the murder.

After a brief redirect examination by the State, defense counsel declined to re-cross Williams. We note that at various points during Williams’ testimony, Holmes expressed to the court his dissatisfaction with his defense counsel.

After the State rested, defense counsel’s motion for a directed verdict was denied. Defense counsel then rested.

During closing arguments, the State conceded that Williams had a questionable “background.” However, the State characterized Williams as merely an eyewitness, an innocent bystander, to the murder of Elgin Evans and expressly denied that Williams was accountable for the murder of Elgin Evans.

Defense counsel argued in closing: “[N]obody can believe him, nobody can believe an individual whose only motive is to save himself, save himself to the point where he is going to turn on a guy he has known, *** he turned because he was in trouble.” Counsel argued that Williams “cut a real good deal” but did not argue that the deal extended to Williams’ involvement in the murder.

During the jury instruction conference, defense counsel did not tender the accomplice instruction and it was not submitted to the jury. After deliberation, the jury found Holmes guilty of murder on a theory of accountability.

Before post-trial motions and sentencing, defense counsel moved to withdraw asserting that there was no communication between him and Holmes and that Holmes did not want him to continue as his attorney. The court permitted defense counsel to withdraw, and the case was continued several times to allow Holmes’ new attorney time to review the trial transcript.

The new attorney filed a motion for a new trial asserting that Holmes’ trial counsel had been ineffective on a variety of grounds. After a hearing, the trial court denied the motion. Holmes was sentenced to 40 years in prison to be served consecutively with his 15-year sentence on the armed robbery conviction.

This appeal followed.

Opinion

It is well established that a criminal defendant’s right to due process requires the State to refrain from misleading the jury. (Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173; Giglio v. United States (1972), 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763; People v. Tenny (1991), 224 Ill. App. 3d 53, 586 N.E.2d 403.) In this case, we must determine whether the State violated Marion Holmes’ right to due process by informing the jury that Ulric Williams was an innocent bystander to the murder and by further denying that Williams’ testimony was in any way motivated by an expectation for prosecutorial leniency concerning his part in the murder.

We first address the State’s characterization of Williams as an innocent bystander to the murder. A person is criminally accountable for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 5—2(c).) In this case, the evidence overwhelmingly shows (in fact the State concedes) that Williams performed acts before, during and after the commission of the murder of Evans that support his accountability: Williams helped Franklin and Holmes locate Evans before the crime; he drove the car to the site of the crime, avoiding a police car along the way and carefully parking the car out of view; he watched as both Holmes and Franklin got out of the car with Evans; he watched as Franklin shot Evans in the head and heard the second shot after Holmes said, “One more for good measure”; he drove the car away and watched as Franklin disassembled and cleaned the gun; he drove the car to the point where the gun was disposed of; and after the three men separated, he did not report the murder to the police. The case law supports this portion of our analysis. People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31; People v. Carreon (1987), 162 Ill. App. 3d 990, 516 N.E.2d 372; People v. Winston (1987), 160 Ill. App. 3d 623, 513 N.E.2d 1121; People v. Baker (1982), 110 Ill. App. 3d 1015, 443 N.E.2d 270.

The question remains, however, whether Williams possessed the requisite mens rea at the time he performed the above acts to support his accountability. Although the State does not concede this question, we believe that the evidence overwhelmingly shows that Williams knew that Evans was going to be murdered. The record contains the statement that Williams gave in Will County. As set forth in the excerpt above, this statement shows in graphic and shocking detail that Williams knew that Holmes had a “contract” to “hit” Evans and that Williams assisted Holmes in locating Evans in order to execute the “contract.” We add that Williams testified at Franklin’s trial that he knew the murder of Evans was a “hit.” (See Franklin, 135 Ill. 2d at 101, 552 N.E.2d at 753.) Furthermore, Williams admitted in Holmes’ trial that he knew that Holmes was looking for Evans in order to “break his legs.” It is well established that a person who intends to promote or facilitate only a battery is accountable for a resulting murder. People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.

The State cites to Williams’ testimony that while he was in the car before the murder the conversation was friendly, there was never any discussion about harm coming to Evans, and Williams did not think that Evans had any reason to fear for his safety. We believe that the State’s reliance on this testimony is without merit. It is a matter of common sense that the men in the car would not tip off Evans by discussing what harm would come to him. In addition, it is well established that a witness may be found to have the requisite mens rea for accountability despite his protestations to the contrary. People v. Winston (1987), 160 Ill. App. 3d 623, 513 N.E.2d 1121.

In sum, we believe that the evidence in this record points to one conclusion—Williams was accountable for the murder of Elgin Evans. The State was fully aware of the evidence but persisted in characterizing Williams as an innocent bystander. In fact, at every stage of the trial the State made concerted efforts to emphasize Williams’ innocence or deny his accountability. This amounted to misleading the jury. Therefore, we hold that the State violated defendant’s right to due process.

We point out that despite the results of Williams’ preliminary hearing, the State could have used the Will County statement (whenever it became available) to obtain an indictment from a grand jury. (Ill. Rev. Stat. 1987, ch. 38, par. 112—4.) Instead, the State told the jury that “all of the evidence” had been presented at Williams’ preliminary hearing and further led the jury to believe that the no-probable-cause finding was dispositive of his innocence. This strategy compounded the State’s violation of defendant’s right to due process.

In cases where the State violates a defendant’s right to due process, a new trial is required if the violation could in any reasonable likelihood have affected the judgment of the jury. (Napue, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173; People v. Bolton (1973), 10 Ill. App. 3d 902, 295 N.E.2d 11.) Here, Williams was present during the murder and his testimony provided the jury with the only version of the murder. If the jury understood that Williams was accountable for the murder, there is a reasonable likelihood that the jury could have concluded that Holmes was merely a scapegoat for Williams. Therefore, we believe that Holmes is entitled to a new trial.

While we believe that defendant is entitled to a new trial by virtue of the first issue, we nonetheless offer our opinion on the second issue. It is well settled that if a witness offers testimony in exchange for some beneficial treatment from the State, the State must disclose that information to the jury. (Napue, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173; Giglio, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763; Bolton, 10 Ill. App. 3d 902, 295 N.E.2d 11.) Here, the State admitted to having an “agreement” with Williams. However, the State maintained that the agreement extended only to the deal on the armed robbery charge and to the relocation of his family. The State denied that the agreement extended to prosecutorial leniency concerning Williams’ involvement in the murder. Holmes argues that given the contents of Williams’ Will County statement, there is at least a strong probability that the agreement did extend to prosecutorial leniency concerning his involvement in the murder. We tend to agree with Holmes.

Furthermore, our analysis here is not limited to what the State perceived as the extent of the agreement. The State was also required to disclose information about what Williams hoped or expected to receive in exchange for his testimony. (See Bolton, 10 Ill. App. 3d at 908, 295 N.E.2d at 16 (the court insisted that the State disclose information about any benefit conferred to a witness “whether he has received, been promised, expects to obtain, or hopes for, leniency or immunity in consideration of his testimony” (emphasis omitted)).) The record in this case contains express evidence that Williams offered his testimony with an expectation for prosecutorial leniency. This evidence appears as part of Williams’ testimony during Holmes’ and Franklin’s preliminary hearing. This testimony indicates that Williams had multiple discussions with the law enforcement officials about his “part” in the “particular” murder of Evans and further indicates that he was offering his testimony with the “hope” or “expectation” that he would receive leniency from the State. We realize that Williams offered these comments about his testimony at the preliminary hearings and that he did not make similar comments about his testimony at Holmes’ trial. However, at the time of Holmes’ trial, Williams was still subject to prosecution by the State. We see no reason to conclude that Williams’ hopes or expectations changed. Most importantly, despite Williams’ trial testimony, the State was under a duty to disclose the information concerning these multiple “discussions” which gave rise to Williams’ hopes and expectations. We believe that the State’s failure to do so violated defendant’s right to due process.

Finally, it cannot be said that Holmes waived his right to claim the violations of due process by virtue of his counsel’s apparent failures at trial. This same issue arose in Bolton. There, defense counsel also failed to address the false information at trial. In light of the affirmative duty on the State, the court rejected the waiver argument, stating:

“[T]he prosecutor made no attempt to correct or explain the false testimony by re-direct examination. Instead, he chose to stand by the false testimony and compounded it in his final argument. The prosecutor ably represented the State. His responsibility was not limited to the State. It was also his duty to see that the defendants received a fair trial no matter how guilty they might have been.” Bolton, 10 Ill. App. 3d at 907, 295 N.E.2d at 15.

In closing, we voice our awareness of the opinion in People v. Franklin (1990), 135 Ill. 2d 78, 552 N.E.2d 743, affirming the conviction of Holmes’ codefendant. The State has suggested that Franklin should control this court’s disposition of Holmes’ appeal. Our reading of Franklin indicates that the issues addressed in this opinion were not addressed or ruled on by the Franklin court. Therefore, Franklin does not control.

We are careful not to question the State’s decision to use Williams as a witness in this case. We are only concerned that the State misled the jury as described above.

Reversed and remanded for a new trial.

McNULTY, P.J., and GORDON, J., concur.