author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID L. HENDRIX, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 90—3051
    Opinion filed July 16, 1993.

      Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Catherine A. Hufford, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant, David Hendrix, of first degree murder, aggravated criminal sexual assault and residential burglary. He was sentenced to an extended term of imprisonment of 80 years for murder, 30 years for aggravated criminal sexual assault and 15 years for residential burglary; the sentences were to run concurrently. The defendant maintains that the evidence failed to establish his guilt beyond a reasonable doubt; that numerous trial errors denied him a fair trial; and that sentencing was improper.

Monica Janetzke is the daughter of the deceased, Rozalia Zieba. She testified that her mother lived alone at 1809 North Hermitage in Chicago and worked as a janitor at Commonwealth Edison. March 12, 1989, was her mother’s 71st birthday. Her mother did not speak fluent English and could not read English. Monica last spoke with her mother on Sunday, March 5. Her mother had been given time off from work on March 13. Monica was unable to reach her mother on the phone either during that weekend or on Monday, but she was unconcerned because her mother had a habit of disconnecting the phone.

About 6:50 p.m. on Tuesday, March 14, Monica received a call from her mother’s employer, who told her that her mother had not come to work. Monica and her husband went to her mother’s house, where they found items scattered around the house. Her mother generally had items stacked in the rooms of her house, but the disorder in the house was unusual; items were scattered in the walkways. When Monica turned on the hallway light, she could see her mother’s body lying face down on the floor in a pool of blood. The body was nude from the waist down and flowers were placed on her mother’s buttocks. Monica and her husband went next door to call the police.

Monica and her husband returned to her mother’s house on March 25, 1989. Monica found a bankbook with a balance of $300 and three uncashed paychecks. She testified that her mother had a habit of rubber-banding and paper-clipping loose change in cone-shaped paper cups. Her mother did not smoke.

Monica’s husband, Thomas Janetzke, testified that he found writings in the garage behind the deceased’s house. He remembered the names “Homicide Hendrix” and “Peabody.” He also found a wallet near a cart that had blankets piled in it. The wallet contained the defendant’s social security card, birth certificate, and a poem or song entitled the “Jouster’s War Anthem.” From the floor of the garage he recovered paper cups along with some pennies; he knew that his mother-in-law had stored change in these types of cups which she kept in the house. His mother-in-law did not go into the garage much because it had been closed up for years. The outside door, however, was broken so that entrance could be gained through it.

Dr. Michael Chambliss performed an autopsy on the deceased on March 15, 1989. An external examination revealed two lacerations on the left side of the forehead, multiple lacerations on the back of the head, and bruises on the right eye and left side of the mouth. The body showed signs of decomposition. He estimated that death occurred approximately 30 to 48 hours before the discovery of the body. He determined that the victim died of cranial cerebral injuries, secondary to blunt trauma. It was his opinion that the injuries to the head were consistent with those that could be inflicted with a baseball bat and the use of significant force. A vaginal examination revealed two lacerations inside the vagina with areas of bruising. Based on the lacerations and bruises within the vaginal area, he determined that the victim had been sexually assaulted. However, he could not determine the exact time of the sexual assault. He testified that the sexual assault was caused by some unknown object and not from the insertion of a penis. It was stipulated that vaginal, oral, and rectal swabs tested negative for the presence of semen or spermatozoa.

Officer Jose Rivera knew the defendant and that his nickname was “Homicide.” He went to an apartment in the 1800 block of Hermitage and spoke to Dan Rodifer, and Jennifer and Cecil Bryant, a brother of Jeffrey Bryant. Cecil Bryant went with Rivera and his partner, Vincent Mancini, and toured the general area. Cecil told Rivera “if [he] could find David Hendrix, [he] could find Jeffrey Bryant.”

Rivera found the defendant walking near the corner of Hermitage and Cortland. Rivera testified that the defendant said he had not seen Jeffrey Bryant and agreed to assist the officers in locating him. Cecil Bryant and the defendant went in the officers’ car to the Metra train station looking for Jeffrey Bryant. Rivera received a radio message from Sergeant Kijowski informing him that Jeffrey Bryant had been arrested. Rivera returned to the station and picked up Jeffrey Bryant. Both the defendant and Jeffrey Bryant were taken to Area Five detective headquarters in separate vehicles.

Rivera testified that he had known the defendant from the neighborhood for approximately two or three years. He did not grab the defendant on the corner of Hermitage and Cortland; the defendant voluntarily accompanied him. The defendant was not handcuffed at any time. Rivera did not handcuff the defendant in the station. He did not speak to the defendant after placing him in the interview room. He denied striking the defendant.

John Naujokas, a technician for the Chicago crime detection laboratory, photographed the murder scene and dusted the premises for fingerprints. He recovered two cigarette butts from the kitchen sink and a blood standard from the immediate area where the deceased was found. The cigarette butts revealed no fingerprints. Two fingerprints that were recovered did not belong to the defendant or Bryant.

Thomas Krypowicz, a fingerprint examiner, was unable to determine if the prints on the refrigerator were from the deceased because the inked impressions of the deceased’s fingerprints were unreadable due to the decomposition of the body.

Detective William Dorsch was assigned to the investigation with his partner, Detective Boyle. When he entered the deceased’s house, he observed the living room to be very cluttered; there was writing on the wall made by black and red markers. There were three separate writings which in substance were warnings to the deceased to leave $100 on the television set or her house would be burned down. Several of the words in the writings were misspelled. The deceased lay on the dining room floor. Her body was naked from the waist down and she was severely battered about the head. He observed Marlboro cigarettes in the toilet. The glass in the rear door of the kitchen had been broken. A cabinet had been placed against the door, but entry could be gained through the window.

Dorsch also examined the garage that was 30 feet to the rear of the house. He observed mattresses, candles, cups and blankets and writings on the garage door and boxes. Repeatedly written in the garage were the names “Homicide Hendrix” and “Peabody.” There were other words written in the garage under the label “R.I.P,” which included “Rebel” “Man,” “Dago,” and “Michael Trear.” On a box containing hubcaps were written “Homicide Hendrix lives,” “Peabody,” and “Taylor Street Jousters.”

Dorsch learned that Jeffrey Bryant, known as Peabody, and the defendant, known as Homicide, were at Area Five detective headquarters. The defendant and Bryant were in separate interrogation rooms. After Dorsch and Boyle introduced themselves to the defendant, they spoke with Bryant for about 30 minutes. Dorsch observed Bryant smoke during the interview. Dorsch and Boyle first spoke with the defendant at approximately 11:30 p.m. The defendant was advised of his Miranda rights, which he indicated that he understood. The defendant told the detectives that he was living in the neighborhood, that he knew Bryant and his nickname, “Peabody.” He also said that his own nickname was “Homicide.” The defendant said he was not in a gang but he had friends who were in the Jousters, a street gang.

The defendant denied having ever been in the deceased’s garage or house. He later said, “There is nothing in that woman’s house that I would want. She has got nothing there. It is a mess.” When Dorsch asked how the defendant knew what was in the house, the defendant replied, “Well, I’m around. I visit with Jeffrey, all right? I know she goes to work and she comes home, and that’s all I know about it.” The defendant’s interrogation was interrupted when Bryant’s family arrived at the station and Dorsch left to speak to them.

The defendant was questioned by Dorsch a second time. Dorsch told him that he had learned that the defendant had told other officers that he had stayed in the garage on occasion. The defendant said that he had been with Dan Rodifer during the past weekend. The defendant spelled various words so that a comparison could be made to the writings on the living room wall which contained many misspellings. The defendant spelled each word correctly. (Dorsch later testified that Bryant misspelled the words just as they were misspelled in the writings on the wall.) Dorsch called Dan Rodifer to confirm the defendant’s alibi. Dorsch informed the defendant that Rodifer denied that he had spent any time with, or spoken to, the defendant during the previous weekend.

At that point the defendant admitted that he had stayed in the garage. He said that he spent some time in the garage, but that Bryant normally slept there. On the Saturday before the killing, the defendant and Bryant were in front of the victim’s house and Bryant told the defendant that he was going inside for some food. The defendant remained outside while Bryant entered through the rear door. The defendant could see Bryant inside the house. Bryant was in the house for about 45 minutes. After he left the house, Bryant told the defendant to get away from the house and not to come back.

Dorsch left the interrogation room and went to another office and wrote a summary of the defendant’s version of events. Dorsch read the version back to the defendant, and Dorsch then crossed out the portion that said that the defendant stayed outside while Bryant went in the house. Dorsch wrote “B.S.” on this portion of the summary, and the defendant replied, “Bull shit.” Dorsch told the defendant to tell the true story. Dorsch told the defendant that he and Bryant went in the house on other occasions to get money from the deceased. Dorsch also told the defendant that he knew that the defendant and Bryant had already taken items from the deceased’s house and that the defendant was present when the deceased was hit with the baseball bat. The defendant then said that he would tell the truth.

The defendant told Dorsch that he had gone with Bryant to look for the $100 that the deceased was supposed to have left for them. This was the second time that the defendant entered the house to look for money and the third time that they had entered the house. When the deceased came home, the defendant was gathering up items to take. The defendant heard screaming and saw Bryant hitting the deceased with a baseball bat. The defendant did not want to watch the beating, so he left the house.

He admitted to sleeping in the garage at times. He knew about the deceased’s schedule, that she worked nights, usually left in the early afternoon and returned home late in the morning. Dorsch then told the defendant that he was under arrest. Dorsch did not question him again.

Dan Rodifer testified that he was not with the defendant on the weekend of March 11 or 12, 1989. He had last seen the defendant four days before the defendant’s arrest.

Mary Siwak, a police officer with the gang crimes division, met with the defendant on July 29, 1987. At that time, the defendant told her that his nickname was “Homicide” and that he was a member of the Jouster street gang.

Ira Kaufman, a lawyer, testified for the defendant. He spoke to the defendant at around 10:30 a.m. on March 15. After his conversation with the defendant, he requested that the police stop physically abusing and hitting the defendant. Kaufman said that he saw no signs of abuse on the defendant; he also said that he did not really look for any visible sign of injury.

Nathaniel Hendrix, the defendant’s brother, testified that his nickname used to be “Homicide Hendrix” when he was a profes- • sional boxer. He was a former member of the Taylor Street Jousters, a gang which was no longer in existence. He did not write “Homicide” or “Peabody” on the walls, and the “Homicide Hendrix,” which was written on the walls of the deceased’s garage, did not refer to him.

Jill Edwards, a friend of the defendant, testified that the defendant was at her home from the time she awoke on Sunday morning, March 12 until 2:30 p.m. on Monday,. March 13. She knew the defendant had been arrested, but she did not go to the police station. She did not know where the defendant had been on March 10 or March 11.

Resolution of the defendant’s claim that he was not proved guilty beyond a reasonable doubt depends on the admissibility of his statement to Officer Dorsch. Consequently, we will first address the defendant’s claims that the statement was the result of an illegal arrest and of subsequent coercion.

The defendant and Bryant both made motions to quash arrest, suppress statements and for a severance. Although their trials were severed, their motions to quash arrest and suppress statements were heard together.

On the motion to quash arrest, the defendant testified that he was picked up at Hermitage and Cortland at 9 p.m., March 14, when he was stopped by two undercover police officers, later identified as Officers Rivera and Mancini, who asked if he was David Hendrix. When he said that he was, he was put into the back seat of the officers' car. There were no handles for the car door in the back of the vehicle. Jeffrey Bryant’s older brother, Cecil, was in the car. The officers were looking for Jeffrey Bryant. After the defendant told the police that Bryant “hung out” at the Metra train station, the police drove there. He was not handcuffed while in the car and did not leave the car at the Metra station. When they arrived at the Metra station, a radio message informed the officers that Jeffrey Bryant was in custody. The officers then drove back to the home of the deceased at 1809 North Hermitage.

At the scene, Cecil Bryant was let out of the car, and he walked away. The defendant testified that he was then handcuffed when he left the car. Once handcuffed, the defendant was put back in the car and remained there for approximately an hour to an hour and a half. He was taken to the police station at Grand and Central, placed in an interrogation room and then handcuffed to the wall.

Detective Dorsch testified for the first time on the motion to quash the arrest. His testimony was in substance the same as his testimony later in the trial before the jury. (He also testified at the motion to suppress statements.) In addition to his testimony at trial, he testified that he spoke with Mr. Zimmerman, a next-door neighbor of the deceased, between 9:30 p.m. and 10 p.m. on March 14. Zimmerman said that there were two young men that frequently had broken into the deceased’s garage and caused her problems; they had broken her windows and had taken up residence in the garage from time to time. He learned the identity of the two young men from Zimmerman. Dorsch knew them as “Mr. Bryant and Mr. Hendrix.” Dorsch also believed that Zimmerman knew their names and had given their names to him. Zimmerman told Dorsch that, although the deceased had numerous problems with the boys, she did not call the police because of her language problem. Zimmerman told Dorsch that he had to call the police for her on several occasions but did not know whether any arrest was ever made. Zimmerman had seen one of the boys, Bryant, leaving the garage at 6:30 a.m. on Sunday, March 12.

Dorsch also spoke to Monica Janetzke. Dorsch left the deceased’s home after being informed that the defendant and Bryant were at Area Five headquarters. Around 10:30 p.m., Dorsch saw the defendant in an interview room. The defendant was not handcuffed, and the interview room door was closed but not locked. Dorsch said that the defendant was not formally placed under arrest until he gave his incriminating statement to Dorsch later at 3:30 a.m. on March 15.

On cross-examination, Dorsch testified as follows:

“Q. Was Mr. Hendrix free to leave at 10:30 p.m.?
A. He didn’t ask to leave, but I didn’t want him to leave, I wanted to talk to him.
Q. If he had tried to leave, you would have kept him there?
A. Yes.”

Officer Rivera’s testimony was also substantially the same as his later testimony before the jury. In addition, he testified that Sergeant Kijowski told him that Bryant had been staying in the garage for approximately the past month. Rivera had had contact with Bryant and knew his nickname was “Peabody.” Neither Bryant nor the defendant was handcuffed at the scene. There were handles in the back seat of the car. Rivera asked the defendant if he would accompany him back to detective Area Five, and the defendant said that he would “cooperate thoroughly, completely. He [the defendant] had nothing to hide.”

The trial judge concluded that the police had probable cause to arrest the defendant. The defendant maintains that the judge erred.

There is some uncertainty about the parties’ positions as to the time of the arrest. We conclude that it is now the defendant’s position that he was arrested at the time he was questioned by Detective Dorsch initially at approximately 10:30 p.m. on March 14. Citing Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, the defendant relies principally on Dorsch’s testimony that he would not have permitted the defendant to leave the station if he tried to leave. The State does not dispute the claim that the defendant was under arrest when Dorsch questioned him. The issue, therefore, is whether Dorsch possessed probable cause to hold the defendant in custody at the time Dorsch first questioned him.

Our immediate task is to determine the proper standard on review of an order finding probable cause to arrest. In People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280, the supreme court said that a reviewing court may not disturb a finding that police officers had probable cause to arrest the defendant unless the finding was manifestly erroneous. Clay was followed in People v. Cabrera (1987), 116 Ill. 2d 474, 485-86, 508 N.E.2d 708, 712, People v. Foster (1987), 119 Ill. 2d 69, 83, 518 N.E.2d 82, 87, and People v. Evans (1988), 125 Ill. 2d 50, 71, 530 N.E.2d 1360, 1368.

However, in In re D.G. (1991), 144 Ill. 2d 404, 408-09, 581 N.E.2d 648, 649, the supreme court said the following:

“Whether probable cause exists is a mixed question of law and fact. (People v. Lippert (1982), 89 Ill. 2d 171, 177.) Ordinarily, a trial court’s ruling on a motion to quash will not be reversed unless manifestly erroneous. (People v. Foskey (1990), 136 Ill. 2d 66, 76.) However, where neither the facts nor credibility of the witnesses is contested, the issue of whether probable cause exists is a legal question which a reviewing court may consider de novo. Foskey, 136 Ill. 2d at 76.”

The Foskey case, however, cited in In re D.G., did not involve the issue of probable cause. In fact, the court expressly found that probable cause existed. The issue in Foskey was whether exigent circumstances existed which would justify the warrantless arrest of a defendant in his home.

We note that the Seventh Circuit Court of Appeals discussed differing views on the appropriate standard on review of a finding of probable cause for a warrantless arrest. (See United States v. Holifield (7th Cir. 1992), 956 F.2d 665; United States v. Spears (7th Cir. 1992), 965 F.2d 262.) In Spears, the court of appeals resolved the differing views. It held that some deference must be given to a trial judge’s finding of probable cause and adhered to the view that in warrantless cases the “review must be for clear error” (Spears, 965 F.2d at 270); it rejected any rule that required review de novo.

The Spears court pointed out that in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, the Supreme Court forcefully held that review of the sufficiency of affidavits supporting an application for a search warrant should not be made de novo. The Spears court reasoned that there is no basis for different rules in nonwarrant cases and warrant cases:

“As we read Gates, we review the magistrate’s probable cause determination deferentially. The McKinney [(7th Cir. 1990), 919 F.2d 405] concurrence notes that it is a determination the magistrate makes in an ex parte proceeding. It would be anomalous to require a more searching review of a district judge’s probable cause determination, made after a full adversary proceeding. McKinney, 919 F.2d at 422. Because there is little to distinguish a magistrate’s probable cause determination in a warrant case and a district judge’s probable cause determination in a nonwarrant case, appellate review should be the same for both.” Spears, 965 F.2d at 270.

Although Spears is not binding on Illinois courts of review, we believe its reasoning to be sound. Further, we believe the greater weight of supreme court precedent supports the view that review of a trial judge’s finding of probable cause in a nonwarrant case is to be made under a clearly erroneous standard and not a de novo standard. In short, we believe that some deference is to be given to the views of the trial judge who passes on the question of whether probable cause existed to effect an arrest.

Probable cause exists if the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. More is required than mere suspicion but it does not require that the officers have evidence sufficient to convict. In People v. Cabrera, the supreme court spoke thus:

“The courts, in striking a balance between the need to protect citizens from invasions of their privacy at the whim of police officers and the countervailing need to allow leeway for efficient enforcement of the laws, are sensitive to the fact that policemen must often make their decisions to arrest or not to arrest under ambiguous circumstances and must exercise their judgment, at the risk of making a mistake. ‘In dealing with probable cause, *** as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’[Citation.]” Cabrera, 116 Ill. 2d at 485, quoting People v. Moody (1983), 94 Ill. 2d 1, 7-8.

We turn now to the facts known by Detective Dorsch. He knew, of course, that a murder had been committed; he was informed that Bryant and the defendant were always together and that both of them had “caused problems” for the murdered woman and had broken into her garage, 30 feet away from the home in which she was killed. He was also informed that one of the inseparable pair, Bryant, was seen leaving the garage at 6:30 in the morning, two days before her body was found. Dorsch also knew that the deceased had been dead for some time. Dorsch saw the name and nickname of the defendant and the nickname of Bryant on the walls of the garage; he saw the written matter on the wall of the deceased’s home showing threats against the deceased which necessarily indicated that someone had broken into the deceased’s home. It would not be unreasonable for Dorsch to infer that the persons who broke into the deceased’s garage would also break into her home. Under these circumstances, Dorsch acted reasonably and prudently and not as a legal technician might have. The trial judge did not err in finding that Dorsch had probable cause to arrest the defendant.

The defendant has cited a number of cases which upheld findings of probable cause. (E.g., People v. Davis (1981), 98 Ill. App. 3d 461, 424 N.E.2d 630.) The defendant points to those cases for comparison purposes. We would not be honest if we were to say that the evidence of probable cause in this case is as strong as the evidence in the cases cited by the defendant for comparison purposes. But the test is not whether the evidence could have been stronger; the test is whether it was strong enough. The trial judge concluded that it was, and we cannot say that his conclusion was clearly erroneous.

The defendant also cites People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228, and People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635. Creaeh, in our judgment, supports the State’s position. In Cole, the State conceded that the arrest was without probable cause.

The State also argues alternatively that, even if the arrest was illegal, the evidence is strong that any illegality of the arrest was attenuated by subsequent circumstances and had no effect on the voluntariness of the defendant’s statement. We concede that the State has made an appealing argument, but we will not address it. This is an argument often made by the State, unfortunately for the first time on appeal. Whether attenuation has occurred is a question of fact to be decided by the trial judge. We have previously remanded cases to the trial court for the express purpose of conducting attenuation hearings after we have determined an arrest was illegal. (See, e.g., People v. Vega (1990), 203 Ill. App. 3d 33, 560 N.E.2d 983.) The judge’s subsequent orders after the attenuation hearing have been appealed. Consequently, to avoid piecemeal appeals and for the sake of judicial economy, we suggest that the State, rather than roll the dice on the single question of the legality of the arrest, raise the alternative question of attenuation in the trial court; and we suggest further that the trial court pass on the question of attenuation.

The defendant testified on his motion to suppress his statement that when he was first questioned by Officer Rivera in the car he admitted spending nights in the garage. He was then taken to headquarters and handcuffed to a chair with his hands behind his back. Neither Rivera nor Mancini advised him of his Miranda rights. He told them that he would plead the fifth amendment until he got an attorney. He was handcuffed to a metal ring in a wall and struck in the chest and stomach. The blows left no marks, but the beatings hurt him and he was “scared.” Dorsch came into the room, and the defendant still refused to give a statement. He specifically denied that he ever gave a statement to Dorsch. He was shown the motion to suppress, which he signed and which alleged that he had given “a statement incriminating himself” to the police. He said that he signed the motion without reading it and that the allegation that he gave a statement incriminating himself was incorrect. He saw Ira Kaufman more than 12 hours after he saw Dorsch and told Kaufman that he had been beaten by the police; he asked Kaufman to have the police stop beating him.

Ira Kaufman also testified on the motion to suppress the statement. He said that he saw the defendant on March 15 between 10:30 and 11 a.m. The defendant was in a waiting or detention room. The defendant told Kaufman that he had been beaten, that he had no visible marks and that he had been hit in the stomach area. Kaufman advised the defendant not to say anything to the police and to tell the police to call Kaufman if they tried to question him. The defendant told Kaufman that he had not told the police anything. Before leaving, Kaufman told a sergeant about the defendant’s complaint and asked that he not be questioned.

Officers Rivera and Mancini testified that the defendant was left in an interrogation room and was not handcuffed at that time. They denied beating the defendant, seeing him beaten or that the defendant ever asked for an attorney or pleaded the fifth amendment.

When a defendant challenges the voluntariness of a statement, the State is required to establish by a preponderance of the evidence that the statement was in fact voluntary and the result of a knowing and intelligent waiver of basic constitutional rights. (People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.) It is the trial judge’s duty to resolve conflicts in the evidence and determine the credibility of the witnesses. (People v. Clements (1985), 135 Ill. App. 3d 1001, 482 N.E.2d 675.) A reviewing court will not disturb the trial court’s determination on a motion to suppress evidence unless that finding is against the manifest weight of the evidence. People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958.

No purpose would be served by repeating the testimony of the witnesses. Suffice it to say that this case presented a question of fact which was to be decided by the trial judge on the basis of the credibility of the witnesses. The judge obviously believed the police officers and did not believe the defendant, who was impeached. Ira Kaufman’s testimony was simply the recitation of self-serving remarks made to him by the defendant, whom the judge did not believe.

A reviewing court is required to defer to the findings of the trial court where that court has assessed credibility, the witnesses’ demeanor and all relevant facts. (People v. Reid (1990), 136 Ill. 2d 27, 554 N.E.2d 174.) The record does not reflect any reason for us to substitute our judgment for that of the trial judge. For these reasons, we hold that the judge did not err by denying the motion to suppress the defendant’s statement to Detective Dorsch. We turn now to the defendant’s claim that he was not proved guilty of murder beyond a reasonable doubt.

The defendant concedes that the corpus delicti of murder and residential burglary have been proved. In substance, he asks that we discount the weight of the statement he made to Detective Dorsch. We point out that the weight to be given any statement made by a defendant is for the finders of fact. The arguments raised by the defendant on this point are in essence the same arguments that he raised in arguing his claim that his statement was coerced. We conclude, therefore, that the defendant’s guilt of murder has been established beyond a reasonable doubt.

The defendant next maintains that he was not proved guilty of aggravated criminal sexual assault. We must address the issues as the parties have presented them. The defendant argues that there is insufficient evidence to show that anyone sexually assaulted the deceased and, if there is, there is insufficient evidence to show that the sexual assault occurred before the death of the victim.

It is the defendant’s position that the State’s entire case depends on the testimony of Dr. Chambliss. Dr. Chambliss found bruising inside the vaginal area. He identified photographs of the inside of the vagina, which showed two lacerations. In his opinion the lacerations were caused by a “foreign object,” and not a penis. In his opinion the deceased was “a victim of a sexual assault.” (See People v. Harris (1989), 132 Ill. 2d 366, 547 N.E.2d 1241.) The lacerations could not have been caused by an external blow. The lacerations were caused just before or shortly after death.

The defendant has cited In re B.J.S. (1987), 151 Ill. App. 3d 1023, 503 N.E.2d 1198, People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 501 N.E.2d 207, and People v. Lambert (1984), 104 Ill. 2d 375, 472 N.E.2d 427. All those cases are factually distinguishable from the facts of this case. In re B.J.S. involved a 12-year-old respondent who was convicted of criminal sexual abuse of his 3-year-old half-sister. A doctor testified that the victim had no hymen intact and her vaginal orifice appeared somewhat larger than that of any other three-year-old child the doctor had examined. The doctor could attribute no significance to the absence of a hymen; she said that the absence of a hymen does not necessarily indicate sexual abuse because it could be caused by strain or excessive play. Similarly, an enlarged vagina did not necessarily indicate sexual abuse because it might have a genetic cause. When asked whether an enlarged vagina would be consistent with sexual activity with the child she examined, the doctor testified, “[I]n light of what the child told me, I felt — yes.” (In re B.J.S., 151 Ill. App. 3d at 1025.) The appellate court held that the medical evidence was insufficient.

In Kokoraleis, the victim’s body was found five months after her abduction. The issue in the case was whether the defendant’s confession was sufficient to establish the crime of rape. The only physical evidence related to a possible wound on the left nipple of the victim. A doctor testified that because there was no sign of trauma in that area, the wound could have been caused by chemical and insect composition. There was no medical evidence that a sexual assault had occurred.

In Lambert, again the issue was whether there was independent evidence that corroborated the defendant’s confession. The defendant was convicted of performing an act of deviate sexual conduct by placing his mouth upon a sex organ of a child. The defendant confessed to having fondled the child’s penis and buttock, sucked on the boy’s penis and rubbed his penis against the boy’s buttock. He denied penetrating the boy’s rectum. A police officer testified that he examined the boy at a hospital and noted that the boy’s rectum had a light reddish cast. The officer testified that he had no medical training and could not testify if the reddish cast on the boy’s rectum was unusual. In reversing the conviction, the supreme court pointedly noted that the “State failed to present medical evidence to establish the possible causes for the condition of the boy’s rectum.” Lambert, 104 Ill. 2d at 380.

We believe that the testimony of Dr. Chambliss constitutes the overriding distinction between this case and the cases cited by the defendant. More in point is a case cited in Kokoraleis, People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384. In Darnell, the defendant confessed to the murder and rape of a 10-year-old girl. When her body was discovered, the girl’s shorts were pulled down just below her buttocks. There were red marks on the tip of the defendant’s penis that appeared to be abrasions. A pathologist who performed an autopsy found no indications of injury to the victim’s genitalia but expressly stated that he could not rule out the possibility of rape. The appellate court held that those facts were sufficient to establish the corpus delicti of the crime of rape. In Kokoraleis, in distinguishing Darnell, the appellate court emphasized the fact that in Darnell the victim’s shorts were pulled down below her buttocks.

In this case, there is the physical evidence of abrasions to the vagina of the victim and the testimony of the pathologist that the lacerations were made just before or shortly after her death. In addition, there is the additional fact that the lower part of the deceased’s clothing had been removed and the bizarre fact that flowers had been placed on her buttocks. Finally, we have the opinion evidence of an expert as to the cause of the lacerations. If those lacerations were made just before or shortly after her death, the only reasonable inference is that the lacerations were caused by the person or persons who caused her death.

The defendant alternatively argues that his aggravated criminal sexual assault was not proved because Dr. Chambliss could not establish beyond a reasonable doubt that any sexual assault occurred before death. That argument is analogous to the argument raised in other cases of aggravated criminal sexual assault that the physical injuries which make a sexual assault an aggravated sexual assault must occur before the sexual assault and not after. That argument that subsequent injuries may not be considered has been rejected in People v. Colley (1989), 188 Ill. App. 3d 817, 544 N.E.2d 812, in which the court said, “[W]e will not draw a bright line between the ending of the sexual acts and the bodily harm occurring afterward.” (Colley, 188 Ill. App. 3d at 820.) Similarly, in this case, we will not draw a bright line which would require the State in all similar cases to establish the precise time of death in order to prove a sexual assault upon a murder victim. For these reasons, we conclude that the defendant’s guilt of aggravated criminal sexual assault was established beyond a reasonable doubt.

The defendant next maintains that his attorney’s misunderstanding of the total number of peremptory challenges available denied or impaired his right to exercise his “full complement of peremptory challenges.” The defendant does not expressly maintain that his counsel was ineffective.

The defendant’s attorney, after exercising six peremptory challenges and attempting to excuse two more venirepersons, was informed by the trial judge that he had only one peremptory challenge remaining. Apparently, the defendant’s attorney was operating under the mistaken assumption that he could exercise 10 peremptory challenges, according to section 115 — 4(e) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 4(e).) It is now conceded that the judge was correct and that the defendant was entitled to seven peremptory challenges under Supreme Court Rule 434(d). 134 Ill. 2d R. 434(d).

The defendant sought to excuse two jurors but was permitted to excuse only one of them. The State subsequently excused the juror the defendant was barred from excusing. Consequently, we agree with the State that the defendant’s claim of any reversible error on this point should be rejected on the ground of mootness.

The defendant contends that the introduction of his nickname and any connection to a gang was highly prejudicial. He maintains that Officer Siwak should have been barred from testifying to her encounter with the defendant in 1987 and his use of the nickname “Homicide” at that time. He also maintains that the poem or song or anthem that was contained in his wallet linked him to the Taylor Street Jousters and should not have been admitted.

The issue is whether the evidence of the defendant’s nickname and his relationship to a gang was relevant. Where the information is relevant, it is admissible despite the prejudice inuring to the accused from its disclosure. (People v. Rivera (1986), 145 Ill. App. 3d 609, 495 N.E.2d 1088.) An accused may not insulate the trier of fact from his gang membership where it is relevant to a determination of the case, simply because prejudice attaches to that revelation. People v. Gonzalez (1991), 142 Ill. 2d 481, 568 N.E.2d 864.

The defendant’s nickname was introduced only for the relevant purpose of establishing his identity. The State did not overemphasize the nickname’s link to a gang membership nor did the State identify this murder as a gang-related killing. We find that the judge did not err in permitting the State to show the defendant’s nickname and that the “anthem” in his wallet proved some connection between the defendant and the Jousters street gang, which was identified in the writings on the garage wall.

The defendant’s last contention is that the judge considered improper aggravating factors in sentencing the defendant. Before imposing sentence, the trial judge said the following:

“We have reviewed and heard the facts. We consider them. We consider also the various points set out in the statute, both in aggravation and mitigation. In aggravation we consider the fact that your conduct caused the ultimate harm. Caused death. Taking of a human life. We consider the fact that his action, this conduct was committed upon a person 60 years of age or older. That is an element which we are entitled to consider both in aggravation and for purposes the State has indicated, for extending the term of the possible sentence.
We also consider as it is and we should more properly state in mitigation, consider the fact that you — your history of prior delinquency for an intensive purposes, none. We consider also, the four parts that they talk about when a judge considers sentencing. Punishment, deterrence, rehabilitation, protection of society. And you know, in all cases, I think-well, at least in most cases, there are some one of these four that I have just stated which may outweigh the other three.”

Relying on People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, the defendant first contends that it was error to consider the death of the victim in sentencing for murder because the death is implicit in the offense. In Saldivar the trial judge found “the primary statutory factor in aggravation ‘the terrible harm that was caused to the victim.’ ” (Saldivar, 113 Ill. 2d at 264.) The judge also mentioned that the defendant’s conduct caused death and that a human life was taken. In reversing and remanding for re-sentencing, the supreme court said that the “record demonstrates that the circuit court focused primarily on the end result of the defendant’s conduct, i.e., the death of the victim, a factor which is implicit in the offense of voluntary manslaughter.” Saldivar, 113 Ill. 2d at 272.

A trial judge’s statements at sentencing may not be considered in isolation. (People v. McGlasson (1991), 219 Ill. App. 3d 252, 579 N.E.2d 1120.) When viewed as a whole, the trial judge’s statements suggest that he was articulating, in a summary fashion, the relevant facts considered in determining the appropriate sentences. It may not be said that he focused primarily on the fact that the defendant’s conduct caused the death of the deceased. In this regard, this case is distinguishable from Saldivar.

The defendant also argues that the trial judge improperly considered the victim’s age as an aggravating factor in sentencing him for aggravated criminal sexual assault. The defendant is correct in pointing out that a judge may not consider the age factor in imposing a sentence when it is an element of the offense. (People v. Ferguson (1989), 132 Ill. 2d 86, 547 N.E.2d 429.) The defendant’s argument assumes that the deceased’s age was considered in aggravation only for the sentence for aggravated criminal sexual assault. That is an assumption that we cannot accept. In fact, the record is to the contrary. The victim’s age may properly be considered in determining whether a defendant shall receive an extended sentence. Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.2(b)(4)(ii).

Finally, even if we were to assume that improper factors were considered in aggravation, reliance on an improper factor does not always necessitate remandment for sentencing. Where it may be determined from the record that the weight placed on an improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required. (People v. White (1986), 114 Ill. 2d 61, 499 N.E.2d 467.) We note that the trial judge rejected the State’s recommendation that the defendant be sentenced to a term of natural life imprisonment and sentenced the defendant to terms within the statutory range. In our judgment he did not abuse his discretion in imposing sentence.

For all these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA, P.J., and GIANNIS, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARK VEGA, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 91—1960
    Opinion filed July 16, 1993.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
    Mark W. Solock and Barry A. Spector, both of Chicago, for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

On April 2, 1987, defendant, Mark Vega, was convicted by a jury of the murder of Christine Special (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)) and the attempted murder of Ida Caram (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 4), and was sentenced to 30 years for each offense, the sentences to run concurrently. On his first appeal to this court, defendant contended that the trial court erred in denying his motions to quash arrest and suppress evidence because an illegal seizure occurred prior to a formal arrest and because no probable cause existed for an arrest. We reversed, finding that defendant was arrested without probable cause. (People v. Vega (1990), 203 Ill. App. 3d 33, 560 N.E.2d 983.) We remanded the matter for a hearing as to whether there was sufficient attenuation to purge defendant’s later inculpatory statements of the taint of the illegal arrest.

In accordance with our instructions, the trial court conducted an attenuation hearing. After considering the evidence presented and the arguments of counsel, the trial court found that the events which occurred after 1 p.m. on April 3, 1986, when the illegal arrest took place, did not sufficiently attenuate the taint of the arrest. The court consequently ordered that defendant’s inculpatory statements be suppressed and that he be granted a new trial. It is from this order that the State now appeals.

In light of the issue presently before us, the facts recited in the first opinion need repeating. On March 13, 1986, 16-year-old Special was shot and killed while driving with Caram in Chicago. Caram told police that two young men had been involved in the shooting, and she gave broad descriptions of the men. Robert Sanchez, the shooter, later pled guilty to the crimes.

On October 1, 1986, a hearing was held on defendant’s first motion to quash arrest and suppress evidence.

Maria Medina, defendant’s mother, testified that at 12:40 p.m. on April 3, 1986, she received a phone call from Detective Terrence Thedford of the Chicago police department. Thedford told Medina that he and Detective Steve Peterson were coming over to ask defendant some questions about the shooting. Medina told Thedford, “Fine,” and wakened defendant. Twenty minutes later, the officers arrived. Medina allowed them into her home, and when defendant entered the room, Thedford “told him to get his jacket.” Medina asked why he had to get his jacket if they were going to question him there. Thedford responded that “they could ask the questions better at the station.” They did not ask defendant if he wanted to go to the station, nor did they inform Medina that she could go along. They did not tell Medina that defendant was not required to accompany them. The officers said nothing to defendant while they were inside the house. They told Medina that defendant would be home before she left for work at 3 p.m. Thedford gave Medina his business card with the telephone number for Area 4 headquarters in case she had questions.

Medina told her son to go with the police because “[i]f I know that it’s got something to do with the police, you just do what the police say.” She did not tell the officers that she did not want her son to talk to them or that she wanted him to have a lawyer. She did not think she could accompany her son to the police station.

Medina’s father had telephoned her at work sometime between March 13 and April 3 and told her that the police wanted to speak with defendant. She telephoned the police and asked why they were looking for defendant. They told her that they wanted to ask him some questions about the Special murder. An officer later telephoned and told her that defendant was at the station being questioned. Defendant was subsequently released. After that, Thedford and Peterson came to Medina’s home and asked for a photograph of defendant, which she gave them.

Medina told Thedford and Peterson of this earlier questioning when they came to question defendant on April 3, and asked them why he had to be questioned again. They told her that tactical officers did not know how to ask questions and that they knew how to ask them.

Medina watched the officers take defendant to the car. According to Medina, “[t]hey had my son by his arm,” and they opened the car door for him. After 3 p.m., Medina telephoned Area 4 several times from her place of employment. She asked to speak with Thedford but was told he was out on the street. Thedford returned her call at approximately 4 p.m. and told her that defendant was not cooperating, and he asked if she could talk him into taking a lie detector test. Thedford said defendant could then go home. Medina spoke with defendant and told him to cooperate so he could go home. She told him if he had no involvement with the homicide, he should take the test. Defendant did not tell Medina whether he was going to take the test. At that point, “he didn’t know.” Thedford got back on the telephone and asked what defendant had said to her. Early on the following morning, Medina was told that defendant had made a statement concerning his involvement in the shooting.

Defendant, who was 16 years old at the time of the shooting, testified that sometime around March 24, 1986, the police stopped him on the street and asked about the shooting of a young girl. Subsequently, on April 3, 1986, at approximately 1 p.m., his mother woke him and said the police were coming to talk to him. He did not ask his mother why the police wanted to talk to him, and she did not offer any information. He did not know they wanted to talk about the shooting.

When the officers arrived, they told defendant to put on his coat. Defendant went with the police because “I felt like I didn’t have a choice.” He felt compelled to go “[b]ecause the tone of voice was deep and they said, you know, get your coat. I obeyed them.”

Thedford grasped defendant’s arm before they walked out the door. Defendant was between the two officers. While walking down the stairs, defendant told the officers he did not want to go. He had not said that to his mother. The officers responded, “You’re going.”

Outside, at the unmarked police car, the officers searched defendant after making him stand with his legs spread apart, but they did not handcuff him. Defendant was placed in the back seat of the car, where there were no handles inside the doors. During the 15-minute ride, the officers never told him he was under arrest. Defendant stated that when they got in the car, he discovered that they wanted to question him about the shooting.

At the station, he was placed in an interview room alone. The police said nothing to him. The door was closed and he heard what, sounded like a dead bolt engaging. The door had no handle.

Approximately two hours after arriving at the station, defendant spoke with his mother on the telephone. He told her he did not want to stay at the station, and she told him to obey the officers and he could come home. He repeated that he wanted to go home.

Thedford testified for the State that on March 17 or 18, 1986, he went to defendant’s home. He believed defendant might have information about the shooting, stating: “I would say I didn’t know if he had any more or less involvement than all the other names that came up in this investigation.” He knew Caram had seen a photograph of defendant and had not identified it. Thedford had previously left word with defendant’s mother and grandfather, and left business cards with a message that he wanted to talk to defendant, but defendant never contacted the police.

On April 3 at 1 p.m., Thedford and Peterson drove to Medina’s home. They had neither an arrest nor a search warrant. When they arrived there, Thedford informed Medina that they were still working on the case and wanted to talk with her son at the police station. Thedford did not recall Medina asking why they could not question defendant at home, but it was possible that she did so. Thedford explained to defendant that they were still investigating the shooting, and he asked defendant if he would come down to the station. Defendant said that he would. Thedford gave Medina his business card with a phone number where he could be reached. The officers did not offer defendant the option of traveling to the station on his own. Leaving the apartment, defendant could have been walking between the two officers. Defendant did not say he did not want to accompany them.

At the police station, defendant was placed in an interview room. He was not handcuffed or advised of his rights. They did not lock the door, but Thedford could not remember if the door was closed. There were handles on the inside of the interview room doors, and defendant was free to leave. At no time, however, did Thedford inform defendant of that fact.

Thedford had a conversation with defendant regarding the shooting of Special. During their conversation, the officers began to have doubts about defendant’s statements. In regard to whether defendant was free to leave at that point, Thedford testified: “It never came up.” Thedford continued:

“THEDFORD: I am not sure what my decision would have been. I would say I probably would have tried to talk to him some more.
DEFENSE COUNSEL: And you would have tried to talk to him there, correct?
THEDFORD: Correct.
DEFENSE COUNSEL: And you would have tried to discourage him from leaving?
THEDFORD: Yes, but if he wanted to leave, I don’t think at that point I could have physically restrained him; had the right to restrain him. I am not sure.”

After this conversation, the officers “were finished talking to him.” When Thedford left the interview room, he did not know if he closed the door. Defendant was completely cooperative at that point. The police then tried, unsuccessfully, to contact defendant’s girlfriend, whom defendant named as an alibi witness.

The officers wanted defendant to take a lie detector test. Defendant refused to take the test and insisted that he was not required to take it. Thedford did not tell defendant that he could go home. Later, however, defendant said he might take the test. Thedford’s report stated that defendant adamantly refused to take the test. It did not say defendant “might” take it. Thedford still did not inform defendant that he could leave. He again left defendant alone in the interview room.

When questioned about the possibility of a lineup, Thedford testified that the decision whether to conduct a lineup including defendant had not yet been made, but the officers were “thinking in that direction.” Nevertheless, if defendant had tried to leave then, Thedford did not think he would have physically restrained him. Thedford would have “gone over and talked to him [and] would have explained the circumstances and asked for a reason.” When defense counsel asked Thedford whether he would have physically stopped defendant to talk to him, Thedford responded, “It would have depended upon the amount he was deciding to leave with.”

At about 4 p.m., Thedford called defendant’s mother and told her they had some doubts about defendant’s story. He also told her defendant had refused to take a lie detector test. He could not recall if he asked Medina to talk to defendant or if she requested to do so, but defendant spoke with her for 5 or 10 minutes. Afterwards, Thedford spoke with Medina again, “(j]ust to explain to her that we were still talking with her son and that I would have to see what would be the decision made on the investigation with regards to the third watch and what would happen with her son.” Thedford turned the case over to Officers Ralph Vucko and John Summerville.

Thedford explained to them the entire investigation of Special’s murder, as they were unfamiliar with the case. He explained the circumstances surrounding the questioning of defendant and informed them that a lineup was possible. Thedford also told them that defendant had said he would “think about” whether to take the lie detector test.

Summerville testified that at about 4 p.m., he had his first contact with the Special case. He spoke with Thedford and Peterson and with their supervisor. Summerville was told to continue the investigation. Thedford and Peterson told Summerville they wanted him to run a lineup with defendant. They also told Summerville to see if defendant would take a lie detector test. He knew that defendant earlier had refused to take the test. He also knew what defendant had told the officers about his activities on the night in question. Summerville had “no suspicions one way or the other” about whether defendant had been involved in a crime.

Summerville went into the interview room in which defendant sat; the room was unlocked. He did not plan on questioning defendant. He simply repeated defendant’s earlier statements and asked if that was what defendant had told the other officers. He then asked defendant if he would take the lie detector test. At that point, defendant “said he might take it.” Vucko then made a 5 p.m. appointment with the polygraph section, and when he informed defendant of this, he said he would take the test. On cross-examination, however, Summerville testified that his police report indicated only that he “might take the test.” Summerville explained: “It was like he would make his mind up when he got to the polygraph. That’s how he explained it to me.” Summerville further testified that if defendant had tried to leave, he didn’t know what he would have done. He would have had to ask the supervisor, who had more knowledge of the case, because at that point defendant was, as far as Summerville knew, just a witness and they were just taking him for a polygraph test. He would not have let defendant leave until he found out “what was going on.”

At 5 p.m., the officers drove defendant to 11th and State Street, where the polygraph section was located. They took the file with them, including all the reports and photographs. Within a few minutes after entering the polygraph room, defendant refused to take the test. According to Summerville, defendant said “he didn’t want to be a stool pigeon. [He said], T can’t tell you who the shooter was, but I will point out the name because I saw it in your report.’ ” At that point, Summerville did not give defendant his rights because he still did not think defendant was a suspect.

Summerville showed defendant the reports, which defendant flipped through, until he came to the page on which Robert Sanchez’s name was located. Summerville “asked [defendant] how he knew Mr. Sanchez did the shooting, and he said, T know because I was with him before, during and after the incident.’ ” Summerville then announced defendant’s arrest and advised him of his rights. Summer-ville’s police report listed Thedford and Peterson as also being arresting officers, even though they were not present at 5 p.m.

The officers drove defendant back to Area 4. Defendant was still not handcuffed. He was placed in an interview room, and the door was locked. Defendant at no time indicated that he did not wish to speak with the officers or that he wished to leave the station. Summerville spoke with defendant from 5:30 p.m. until 5:45 p.m. He was again advised of his rights. At 10:30 p.m., defendant was given dinner and was told that the police had not yet found Sanchez. At 1 a.m., the officers telephoned felony review, and Assistant State’s Attorney Michael Gerber arrived at 2 a.m. At 4:15 a.m., Gerber advised defendant of his rights and took an oral statement from him. At 4:40 a.m., defendant gave a court-reported statement, after again being advised of his rights. A youth officer was present for the first time. Defendant later read the statement, made corrections, and signed it. Prior to giving this statement, defendant was given an opportunity to contact his mother or any other family member.

The trial court found that no seizure was made before 5 p.m. Until that time, the police treated defendant as a witness. The court emphasized that the police did not tell defendant he was under arrest; did not handcuff him; did not lock the interview room door; did not give him his rights; and did not call a juvenile officer. The court believed that defendant was free to leave at any time.

In response to defendant’s second motion to quash arrest and suppress evidence, the trial court ruled that probable cause did not exist until the point at which defendant stated that he knew who the shooter was because he was with him before, during and after the shooting.

We reversed the trial court’s finding that no seizure had occurred prior to 5 p.m., holding instead that defendant had been illegally arrested in his home at 1 p.m. The trial court’s determination that a reasonable person in defendant’s situation would have considered himself free to go at that point was held to be manifestly erroneous. The State then argued that even if defendant was unlawfully seized at 1 p.m., there was sufficient attenuation to purge his later inculpatory statements of the taint of the illegal arrest. However, because the trial court was not presented with this issue, we remanded the matter for an attenuation hearing.

At the attenuation hearing, the State called Sergeant Peterson. On the afternoon of April 3, he and Thedford spoke with defendant at Area 4 headquarters. The conversation lasted from 1:30 to 2 p.m. Defendant stated that on the evening Special was shot, he and his girlfriend had gone to a movie and returned to her house at approximately 10:30 p.m. Defendant stayed there for 15 minutes and then went to a restaurant located on the 2800 block of West Cermak. He left the restaurant 30 minutes later and began walking to Robert Sanchez’s house, where he was staying at the time. Sanchez lived at 2609 West 21st Place. While walking eastbound on 21st Place, defendant heard six gunshots. He jogged the rest of the way home. Special had been shot at 2658 West 21st Street.

Peterson stated that he told defendant that the police had information placing him closer to the scene of the shooting than he was admitting. Defendant denied being present when the shooting occurred. Defendant was then shown a police report containing a statement made by an unidentified individual which placed defendant at the scene. Defendant again denied being there.

On cross-examination, Peterson stated that Thedford conducted the interview with defendant. Peterson could not recall whether he or Thedford showed defendant the police report, or which of them told defendant about the information from the unidentified individual. Peterson admitted that a supplementary police report which he and Thedford prepared did not mention that defendant had been told that the police had information placing him at the scene of the shooting. Nor did the report mention that they showed it to defendant. Peterson explained that the report was only a summary of what had occurred on April 3 and that, at that point, they considered defendant to be merely a witness.

The State next presented the testimony of Vucko. Vucko testified by stipulating that at 5:30 p.m. on April 3, defendant, after being advised of his Miranda rights, gave a complete confession regarding his involvement in the shooting death of Special. This confession was substantially the same as the written confession that was taken the next morning by Assistant State’s Attorney Gerber.

The defense offered the stipulated testimony of Thedford, who would have testified that he had no recollection of defendant being told that the police had information placing him closer to the scene of the shooting than he had admitted, nor did he recall defendant being shown the police report.

The trial court found that there was insufficient attenuation to purge the statements of the taint of the illegal arrest. Accordingly, the court ordered that the statements be suppressed and that defendant be granted a new trial.

A trial court’s ruling on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Winters (1983), 97 Ill. 2d 151, 454 N.E.2d 299.) In general, evidence obtained by illegal means must be suppressed if it has been obtained by exploitation of the initial illegality and not “by means sufficiently distinguishable to be purged of the primary taint.” (Wong Sun v. United States (1963), 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417; People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677.) In the case of a confession following an illegal arrest, the confession must be “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” (Wong Sun, 371 U.S. at 486, 9 L. Ed. 2d at 454, 83 S. Ct. at 416-17.) The burden of demonstrating attenuation between the illegality and subsequent confession sufficient to render the confession admissible rests upon the State. People v. White, 117 Ill. 2d 194, 512 N.E.2d 677.

In Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, the United States Supreme Court addressed the admissibility of statements made following an illegal arrest. The Court listed the factors to be considered in determining whether a later statement was sufficiently attenuated from the illegality so as to be deemed a product of the defendant’s free will, and therefore admissible. These factors are: (1) whether Miranda warnings were given; (2) the proximity in time between the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the police misconduct. Brown v. Illinois, 422 U.S. at 603-04, 45 L. Ed. 2d at 427, 95 S. Ct. at 2261-62.

Defendant here made four statements following his illegal arrest at 1 p.m. The first was made at 11th and State four hours after the arrest, followed shortly thereafter by a second, given after he and the officers had returned to Area 4. The third was an oral statement given to Assistant State’s Attorney Gerber approximately 11 hours after the first, followed thereafter by a court-reported statement. The State argues that all of these statements were sufficiently attenuated so as to be admissible. After considering the Brown factors, the trial court found otherwise. For the reasons set forth below, we conclude that the trial judge did not manifestly err in finding that the State failed to prove attenuation.

The record discloses that defendant was not advised of his Miranda rights prior to initial questioning by police from 1:30 to 2 p.m. At this point, the officers stated that they considered him to be merely a witness. Even after they began to doubt defendant’s story and asked that he take a lie detector test, however, they still did not advise him of his rights. More importantly, defendant was not advised of his Miranda rights prior to making his first inculpatory statement to police between 5 and 5:30 p.m. at 11th and State. After defendant had again refused to take the lie detector test, he told Summerville and Vucko that he did not want to be a “stool pigeon,” adding, “I can’t tell you who the shooter was, but I will point out the name because I saw it in your report.” He then identified Robert Sanchez as being the shooter. Notwithstanding that his identification of Sanchez as the shooter showed that defendant had knowledge of the shooting, the officers still did not give defendant his rights. Summerville then asked defendant how he knew Sanchez did the shooting. In response, defendant stated, “I know because I was with him before, during and after the incident.” It was only then that he was advised of his rights. The Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, held that when an individual is in custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the giving of proper warnings is a prerequisite to the admissibility of any statement made by a defendant. Because the police failed to advise defendant of his constitutional rights prior to asking him the question which prompted the incriminating statement, that he was with Sanchez “before, during and after the shooting,” under Miranda, this statement is inadmissible against him.

The State appears to argue that the failure to give Miranda warnings was not fatal to the admissibility of the first incriminating statement and, in any event, it argues, the proper warnings were given prior to defendant’s subsequent statements and should therefore be admissible under the Brown analysis. We disagree. Even assuming that defendant was advised of his rights prior to giving the first incriminatory statement, under Brown, that statement and the statements which followed would still be inadmissible as they were not sufficiently attenuated from the illegal arrest as to be purged of its taint.

Regarding the temporal proximity of defendant’s arrest and his statements, the four statements were made approximately 4, 4%, 15, and 15xk hours after his arrest. The mere passage of time alone, however, is insufficient to purge the taint of an illegal arrest. (People v. Graham (1991), 214 Ill. App. 3d 798, 573 N.E.2d 1346.) “The temporal relationship between the arrest and the confession may be an ambiguous factor. If there are no relevant intervening circumstances, a prolonged detention may well be a more serious exploitation of an illegal arrest than a short one. Conversely, even an immediate confession may have been motivated by a prearrest event such as a visit with a minister.” (Dunaway v. New York (1979), 442 U.S. 200, 220, 60 L. Ed. 2d 824, 841, 99 S. Ct. 2248, 2260-61 (Stevens, J., concurring).) Thus, the key to whether the passage of time constitutes sufficient attenuation depends considerably on whether any intervening events occurred during that time and the nature of those events. People v. Stofer (1989), 180 Ill. App. 3d 158, 534 N.E.2d 1287.

The trial court found that the State presented “absolutely no evidence of any intervening circumstances” between 1 and 5 p.m., when defendant gave his first incriminating statement. Similarly, it found that no intervening circumstances had ever been suggested by the State between the time of the illegally obtained statement at 5 p.m. and defendant’s subsequent statements.

The State now contends that there were three intervening circumstances between the 1 p.m. arrest and the first statement given at 5 p.m. at 11th and State. It first claims that defendant was confronted with untainted evidence in the form of a police report which produced in him a voluntary desire to confess. Specifically, at the hearing on remand, Peterson testified that during the 1:30 interview of defendant, defendant told the officers that he heard six shots in the area of the shooting, but denied being at the scene. Defendant was then told that they had information placing him closer to the shooting than he was admitting. Peterson stated that he showed defendant a police report which mentioned his name.

Peterson’s testimony is questionable, however, since the State offered no testimony at the initial hearing on defendant’s motion to suppress that defendant was confronted with a police report; Peterson did not mention this fact in any police report he prepared; and Thedford, who was in the room with Peterson and defendant, had no recollection that this had occurred.

Even assuming that the event described by Peterson took place, however, we decline to view it as an intervening circumstance. Even after he was confronted with the police report containing his name, defendant still refused to take the lie detector test, had to be persuaded to consider taking the test by his mother, and still refused to take the test once he arrived at 11th and State. The fact that he persisted in his refusal to take the test belies the State’s argument that defendant, of his own free will, confessed several hours later as a result of seeing the report.

The State also cites as an intervening circumstance defendant’s telephone conversation with his mother. Up to this point, the State argues, defendant was adamant in his refusal to take the lie detector test. However, after he spoke with his mother, according to Summer-ville, defendant said he was willing to take the test. Summerville’s testimony, however, is the only evidence that defendant ever unequivocally agreed to take the test. According to Medina, even after she spoke with him, defendant was still uncertain whether he would take the test. It is noteworthy that the police report prepared by Summer-ville indicated that defendant said only that he “might” take the test. When defendant arrived at 11th and State, he again refused to take the test.

It is apparent from the foregoing that the phone conversation with his mother had no effect on defendant’s desire to voluntarily confess. The trial court’s finding that the conversation was not an intervening circumstance is bolstered by the fact that the police told Medina that they had doubts about her son’s statement regarding his involvement in the shooting and in fact asked Medina to talk her son into taking the test, telling her that if he cooperated he could go home. In our view, the telephone conversation works against the State because it represents a form of improper coercion used to secure an inculpatory statement from defendant while he was being unlawfully detained.

The final intervening circumstance raised by the State is defendant’s identification of Sanchez as the- shooter. The State contends that defendant identified Sanchez out of a “desire to clear his conscience.” As defendant points out, however, the State ignores all of the events which preceded the identification. Defendant was illegally taken from his home at 1 p.m. and brought to Area 4 for questioning. He was not permitted to remain at home during questioning. He was subjected to questioning without the benefit of Miranda warnings and was never told that he could leave. He was kept alone in an interview room for concentrated periods of time. He was asked to take a lie detector test, which he refused to do. He was then taken to 11th and State despite the fact that he never fully agreed to take the test. He was seated next to the polygraph machine and again refused to take the test. His persistent refusal to take the test is hardly evidence of an individual exhibiting a willingness to assist the officers or to confess out of a desire to clear his conscience. It was the illegal questioning by the police, and not defendant’s desire to “clear his conscience,” which prompted defendant to give his first inculpatory statement (“I was with Sanchez before, during and after the incident”), which gave the police probable cause to arrest him.

Having considered the issue of intervening circumstances, we turn to the final Brown factor, the flagrancy and purposefulness of the police conduct. “An arrest has a quality of purposefulness where, e.g., it is an expedition for evidence admittedly undertaken in the hope that something might turn up.” (People v. Stofer (1989), 180 Ill. App. 3d 158, 170, 534 N.E.2d 1287, 1294.) The fourth amendment prohibits such conduct by police officers. People v. Graham, 214 Ill. App. 3d 798, 573 N.E.2d 1346.

In this case, it is apparent that the officers’ sole purpose in arresting defendant at his home was to secure from him an incriminating statement. The officers acknowledged that the purpose of their trip to defendant’s home was for questioning, and they were aware that they lacked probable cause to arrest him. Although they testified that they considered defendant to be merely a witness, their treatment of him belies this claim. Thedford and Peterson refused to question him at his home, requiring him instead to accompany them in the police car to the police station. After defendant gave them a statement, the officers did not release him but continued to hold him in an interview room. They never informed defendant he could leave. Instead, they asked him to take a lie detector test, and when he refused, they called his mother and asked her to talk her son into taking the test. The officers still did not tell defendant he could leave. They then transported him to 11th and State to take the test notwithstanding the fact that he never expressly agreed to it. Thedford testified that he was not certain whether he would have permitted defendant to leave had he expressed a desire to do so. He would have tried to discourage him from leaving. Summerville also testified that he would have detained him until he “found out what was going on.” These actions on the part of the officers amount to the improper expedition for evidence that the Supreme Court has expressly proscribed. (Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254; Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) Accordingly, the initial statement of defendant was properly suppressed.

Having determined that defendant’s first incriminatory statement was inadmissible both as a violation of the fifth amendment, pursuant to Miranda v. Arizona, and the fourth amendment under Brown v. Illinois, we turn briefly to the issue of the admissibility of the later statements. We note at the outset that at the attenuation hearing, the State failed to demonstrate that any intervening circumstances occurred between the first inculpatory statement given at 5 p.m. and the subsequent statements given by defendant after he was “Mirandized.” The trial court so found. Moreover, the State offers none on appeal. When an initial statement, made after an illegal arrest, is found to be caused by that arrest, the earlier statement creates a serious doubt that the later statements were made as a result of free will. Instead, the later statement is the result and the fruit of the first. People v. Thomas (1980), 80 Ill. App. 3d 1121, 1126, 400 N.E.2d 1019, citing Brown v. Illinois, 422 U.S. at 605, 45 L. Ed. 2d at 428, 95 S. Ct. at 2262.

In light of the absence of intervening circumstances between the first and later statements, the trial court properly concluded that the subsequent statements, like the initial statement, were not sufficiently attenuated from the illegal arrest so as to be purged of its taint. Furthermore, it is entirely possible that defendant gave the subsequent confessions because he thought he had already given the same information in an admissible confession. (See Brown v. Illinois, 422 U.S. at 605 n.12, 45 L. Ed. 2d at 428 n.12, 95 S. Ct. at 2262 n.12.) The fact that he was in the -uninterrupted custody of the same authority when he gave the subsequent statements reinforces this conclusion. As with the first statement, therefore, suppression of the later statements was proper.

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

Judgment affirmed.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE CAHILL PRESIDING JUSTICE JIGANTI,

text:
    MIGUEL RUIZ, Plaintiff-Appellee, v. LOU WOLF et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 1 — 91—3026,1—92—2105 cons.
    Opinion filed July 15, 1993.
    Rehearing denied August 13, 1993.

      JIGANTI, P.J., dissenting.
    Robert A. Egan, of Egan & Trapp, of Chicago, for appellants.
    David Feldman, of Feldman & Halprin, of Chicago, for appellee.
   JUSTICE CAHILL

delivered the opinion of the court:

Plaintiff, Miguel Ruiz, brought an action for conversion against defendants, Lou Wolf and C.M.C. Management Company. Following a bench trial the court found a conversion and entered a $48,866 judgment for plaintiff. Defendant Wolf appealed the judgment as against the manifest weight of the evidence.

Eleven months later, defendant filed a petition and supplemental petition to vacate the judgment under section 2 — 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). The court heard arguments by counsel and then denied the petitions. Defendant filed a second appeal alleging that the court erred when it denied the petitions without holding an evidentiary hearing. This court consolidated the two appeals. We affirm.

We first address the appeal from the finding of conversion and the money judgment.

The facts at trial are taken from the bystander’s report.

In 1980 plaintiff entered into a five-year lease with Gus Hormovitis for the first floor of a building in Chicago. He bought restaurant equipment, remodeled the space, and applied for a restaurant license, but the city refused to issue it because of building code problems. Plaintiff filed a lawsuit against Hormovitis for his failure to repair the building, and Hormovitis filed a lawsuit against plaintiff for his failure to pay rent. The parties then entered into a settlement agreement whereby plaintiff would not pay rent if Hormovitis did not repair the building. Hormovitis did not make any repairs, so plaintiff withheld rent, locked the building, and left his equipment inside.

Four years passed.

In 1984 defendant bought the building from Hormovitis and, unaware of plaintiff’s lease, rented the space to another person. Defendant remodeled the front of the building and moved plaintiff’s equipment to another location. Plaintiff’s attorney sent two letters to defendant’s attorney requesting that he return the equipment. Plaintiff and defendant met, and defendant signed a note which stated “I am responsible to [plaintiff] for his interest related to equipment on premises during the remodeling of front to secure the building at 1011 W. Irving Park and subject to his attorney’s instructions.” He also told plaintiff the location of the equipment, but when plaintiff went to claim it, persons, not parties to this action, would not allow him to take it because they said they did not have permission to let the equipment be removed. Plaintiff telephoned defendant, but the calls were not returned. He then filed this action for conversion. By the time of trial, the equipment had disappeared.

At trial plaintiff offered handwritten receipts, cancelled checks, and photographs of some of the equipment as proof of his damages. One receipt which was admitted in evidence lists various equipment purchased by plaintiff from Jorge D’Arquea totaling $16,665 and contains what appears to be D’Arquea’s signature. During cross-examination plaintiff admitted that the signature was not D’Arquea’s and stated that it could have been written by D’Arquea’s wife. (The record provides no explanation for plaintiff’s statement.) The receipts and cancelled checks offered by plaintiff amounted to $48,866.

The trial judge qualified plaintiff, who regularly bought and sold restaurant equipment, as an expert witness. He testified that the equipment was worth the amount he paid in 1980 because he had not used it since he bought it. Defendant's expert testified that the equipment had a negligible value. Three other witnesses identified specific pieces of equipment which they had seen in the building.

The court found that defendant had converted plaintiff’s equipment and determined that the value at the time of conversion was $48,866.

In his first appeal defendant contends that the court’s finding of conversion was against the manifest weight of the evidence. Defendant argues that plaintiff failed to identify every item he claimed was taken from the building and that he failed to establish the value of the equipment.

To prove conversion plaintiff must show: (1) a right in the property; (2) a right to immediate possession; (3) defendant’s wrongful control; and (4) demand for possession. Glaser v. Kazak (1988), 173 Ill. App. 3d 108,115, 527 N.E.2d 379, 383.

The bystander’s report shows plaintiff established all four requirements for conversion. He also offered defendant’s signed statement admitting responsibility for the equipment. In addition to plaintiff’s testimony, three witnesses identified specific items of equipment they had seen in the building. We find that plaintiff offered sufficient evidence to support the claim for conversion.

Defendant next argues that plaintiff did not establish the value of the equipment.

The measure of damages for conversion is the fair market value at the time of conversion (North Shore Marine, Inc. v. Engel (1980), 81 Ill. App. 3d 530, 401 N.E.2d 269), and it is the plaintiff’s burden to show a reasonable basis to determine the value of items converted (Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013, 1025, 327 N.E.2d 346, 355).

We find that the receipts and checks for each item converted provided a reasonable basis for the value of the equipment. In a bench trial, the judge, as the trier of fact, determines the credibility of the witnesses and the weight to be given the evidence (Aetna Insurance Co. v. Amelio Brothers Meat Co. (1989), 182 Ill. App. 3d 863, 865, 538 N.E.2d 707, 709), and the court’s judgment will not be modified unless it is excessive or unsupported by the facts (see North Shore Marine, 81 Ill. App. 3d 530, 401 N.E.2d 269). We find that the record supports the trial court’s award of $48,866 and that this amount is not excessive.

We next consider defendant’s appeal from the court’s denial of the section 2 — 1401 petitions.

Defendant’s first section 2 — 1401 petition alleged perjured testimony and included an affidavit by Jorge D’Arquea in support. The affidavit relates to plaintiff’s testimony and three exhibits offered as proof that he paid D’Arquea $16,665 for restaurant equipment. In his sworn affidavit dated April 18, 1992, D’Arquea states he did not sign the three exhibits which purport to bear his signature and did not authorize anyone to sign on his behalf. He further states, “I never sold any equipment to [plaintiff] nor have I received any payment from [plaintiff] for any equipment.”

Plaintiff responded to the petition less than a month later with a second sworn affidavit by the same D’Arquea. In this affidavit D’Arquea states that he, plaintiff, and plaintiff’s brother bought restaurant equipment in 1980, plaintiff kept the equipment, and plaintiff paid his brother and D’Arquea their investment, “which was around $16,000.00.” D’Arquea further states that possibly plaintiff’s brother signed the three receipts. Finally, he states, “Now that I have had more time to review all the exhibits and documents, my statements [in his affidavit for defendant] are no longer accurate.”

After plaintiff filed D’Arquea’s second affidavit, defendant filed a supplemental section 2 — 1401 petition and an affidavit by Denise Torrez. This affidavit relates to plaintiff’s testimony and the cancelled check offered as proof that he paid Torrez $250 for a microwave oven. Torrez states in the affidavit that plaintiff wrote her a check for $250, but that this was a loan for school. She states that when she received the check the word “microwave” was not written on it and that she did not sell plaintiff a microwave oven.

In response plaintiff filed an affidavit in which he states he wrote Torrez a $250 check, received cash in return, and bought a microwave oven from a private party. He further states that he wrote “microwave” on the check after it cleared and was returned to him by the bank.

The court heard argument to determine whether or not to hold an evidentiary hearing. Defense counsel then made an offer of proof that an officer from plaintiff’s bank would testify that five checks admitted in evidence, including the check to Denise Torrez, contained descriptive notations which were not written on the checks when the bank processed them. In another offer of proof, defense counsel stated that Mrs. D’Arquea was available to testify that she and her husband did not receive $16,000 from plaintiff. Counsel also stated that she would testify that although the receipt dated December 12, 1983, lists D’Arquea’s address as 5048 North Wolcott, she and her husband did not have any interest in that property until December 26,1984.

The court denied the defendant’s petitions and did not hold an evidentiary hearing. The court held that D’Arquea’s identify was disclosed before trial and that defendant could have discovered the evidence offered in the affidavits before the entry of judgment. The judge stated, “[T]his case proceeded to trial ill-prepared, ill-discovered, was lost ***. I think the trial of a case means something. A diligent person could have found out the information that you are dealing with in your petition.”

Defendant contends the court erred when it denied the petitions without an evidentiary hearing. He argues that the affidavits contain factual disputes and cites. Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253, which holds that where central facts of a section 2 — 1401 petition are controverted, an evidentiary hearing must be held.

Plaintiff responds that defendant failed to satisfy the diligence requirement and that there is no factual dispute regarding this issue. He cites Goncaves v. Saab (1989), 184 Ill. App. 3d 952, 538 N.E.2d 142, for the holding that to set aside a judgment based upon newly discovered evidence, the evidence must be such as could not reasonably have been discovered before entry of judgment.

A petitioner who seeks relief pursuant to section 2 — 1401 must show the exercise of due diligence (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381), and a petitioner will not be saved from his own lack of diligence (Sidenstricker v. Dobbs (1982), 110 Ill. App. 3d 620, 442 N.E.2d 924). However, the requirement of diligence has not been rigidly enforced where actual fraud or unconscionable conduct played a part in the judgment. Goncaves, 184 Ill. App. 3d at 956, 538 N.E.2d at 145.

Defendant’s petitions and affidavits allege that plaintiff committed perjury and presented fraudulent documents to the court. Plaintiff attempted to explain defendant’s allegations with affidavits of his own. Where there is a genuine dispute as to an issue of fact, the trier of fact must determine that issue. (Ostendorf, 89 Ill. 2d at 286, 433 N.E.2d at 259.) We note that Ostendorf did not decide whether a “full-blown trial-type hearing” is always required when litigants present contradictory affidavits, but instead deferred to the trial court’s discretion to decide whether there is a factual dispute.

The fundamental question on review is this: Did the trial judge abuse his discretion when he dismissed the petitions without an evidentiary hearing based upon a lack of diligence, when that requirement may be relaxed in the face of actual fraud or unconscionable conduct? The most troublesome document the court faced was the first affidavit of D’Arquea. But that affidavit was contradicted by D’Arquea’s second affidavit filed a month later. Whichever affidavit spoke the truth, D’Arquea’s credibility in an evidentiary hearing was hopelessly tarnished.

The offer of proof tendered with respect to the testimony of Mrs. D’Arquea was not accompanied by a sworn affidavit executed by her, but was an assertion by the defense lawyer that Mrs. D’Arquea was available to contradict her husband’s second affidavit. No expíanation was offered as to why the elements of this offer of proof were not incorporated in the supplemental section 2 — 1401 petition or supporting affidavits.

In reviewing the supplemental petition of Denise Torrez and the offer of proof that notations were added to five cancelled checks, the court observed at the section 2 — 1401 hearing that these facts even if proven would not alter its ruling. Newly discovered evidence to justify a new trial or a hearing, in addition to meeting the diligence requirement, must be of such conclusive or decisive character and be sufficiently important enough to make it probable that a different outcome would occur in a new trial. Bianchi v. Board of Fire & Police Commissioners (1976), 41 Ill. App. 3d 998, 354 N.E.2d 916.

In this case the trial court did not summarily dismiss defendant’s petitions based upon a lack of diligence and lack of a meritorious defense without also examining the substance of the allegations. The judge conducted two hearings and allowed defendant full argument and leave to file a supplemental affidavit when D’Arquea recanted the first. Based upon all the facts, we find that the judge did not abuse his discretion in finding a lack of diligence and in deciding to end the matter without a full-blown evidentiary hearing.

Affirmed.

JOHNSON, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

I respectfully dissent from the majority’s decision to affirm the trial court’s denial of an evidentiary hearing on the defendant’s section 2 — 1401 motion. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401.) The majority appears to have based its opinion on the trial court’s finding of the defendant’s lack of diligence in discovering the alleged fraud before trial. Further, the majority seems uncertain as to whether “a full-blown trial-type hearing” is always required when litigants present contradictory affidavits. 250 Ill. App. 3d at 126.

I agree that in order to preserve the finality and stability of judgments, a section 2 — 1401 motion should not be used as a vehicle for relitigating factual matters which appear in the record and have been adjudicated earlier by valid means. (See Brunswick v. Mandel (1974), 59 Ill. 2d 502, 322 N.E.2d 25; Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 403 N.E.2d 615.) However, this principle does not operate to preclude petitions where the prevailing party has engaged in fraudulent conduct which resulted in newly discovered evidence bearing on an ultimate issue in the case. Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955.

As the majority notes, a petitioner seeking relief from a judgment must show that the ground asserted for relief would have prevented the entry of judgment against him had it been known at trial, and that the failure to discover or present the ground for relief was not the result of the petitioner’s own lack of diligence. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.) However, the diligence requirement of section 2 — 1401 does not force parties who are acting in good faith to assume the possibility of fraud in answers to discovery requests and to take extraordinary steps to discover it in the limited time they have before trial. (Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955; Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.) In other words, satisfaction of the diligence requirement does not demand that the petitioner anticipate improper conduct. Goncaves v. Saab (1989), 184 Ill. App. 3d 952, 538 N.E.2d 142.

In the instant case, the measure of damages for conversion was the fair market value of the equipment at the time of conversion. In order to meet his burden of proof on damages, Ruiz presented the court with handwritten receipts, cancelled checks, and photographs of the converted equipment. His receipts and checks totalled $48,866. The court awarded him $48,866.

Included in the defendant’s section 2 — 1401 motion, alleging perjury and fraud, were affidavits and offers of proof which challenged the veracity of Ruiz’s checks and receipts. Offers of proof are an acceptable means of informing the trial court and opposing party of the nature and substance of the evidence expected to be introduced and preserving that evidence for appellate review. People v. Sanchez (1989), 131 Ill. 2d 417, 546 N.E.2d 574; State Bank v. Thill (1986), 113 Ill. 2d 294, 497 N.E.2d 1156.

The affidavits and offers of proof created a substantial question of actual fraud. Certainly, if the checks and receipts which the court relied on to award the damages were fraudulent, as a matter of law, the relief which Ruiz received was not justified and subject to reversal.

Ruiz testified at trial that he purchased equipment from Jorge D’Arquea. As evidence of the value of this converted equipment, Ruiz tendered to the court receipts totalling $16,665 and signed by D’Arquea. Among the affidavits which were submitted to the court on the section 2 — 1401 petitions were the conflicting affidavits of Jorge D’Arquea. It is clear from his affidavits that, at the very minimum, the signature represented to the court as his signature was not his signature. Further, an offer of proof stated that Aura D’Arquea, Jorge’s wife, would testify that neither she, nor her husband, received a $16,000 payment from Ruiz. She and her husband did not have sufficient cash on hand at that time to purchase restaurant equipment for $16,000. Moreover, her testimony would state that the address on the receipt was not the D’Arquea address on the date that Ruiz represented to the court that he purchased equipment from them. They did not purchase property at that address until a year after the date on the receipt.

Ruiz also proffered cancelled checks to the court with annotations on the checks of the purchases he made. One of these checks was written to Denise Torrez in the amount of $250 and had the annotation “Microwave” written on the check. Torrez’s affidavit states that she did not sell Ruiz a microwave and the annotation “Microwave” was not on the $250 check which she received from Ruiz as repayment for a loan. Additionally, an offer of proof was presented that a bank officer would testify that after having reviewed the microfiche copies of Ruiz’s checks kept by the bank, the annotations on four other checks which were presented to the court to indicate Ruiz’s purchases were not present on the checks when they were initially processed by the bank.

As stated in Klein v. La Salle National Bank (1993), 155 Ill. 2d 201, “[i]f a disputed factual issue exists material to whether relief is justified, an evidentiary hearing is required.” (155 Ill. 2d at 205.) I believe an evidentiary hearing was required in order to determine whether the damage award was predicated upon fraudulent evidence. I do not believe the defendant was required to anticipate perjurious testimony, forged signatures on receipts, and misrepresentations made on cancelled checks. The alleged fraud perpetrated on the court strikes at the very essence of the judicial process and mandates an evidentiary hearing.