text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM CANNON, Defendant-Appellant.
    First District (4th Division)
    No. 1—86—2485
    Opinion filed June 11, 1992.
    Rehearing denied April 26, 1993.

      Michael J. Pelletier and Ann C. MeCallister, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Charles Bell, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant, William Cannon, was found guilty of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—2), and acquitted of the home invasion charge (Ill. Rev. Stat. 1985, ch. 38, par. 12—11). Defendant’s pro se motion for a new trial was denied. A motion for a new trial filed by defendant’s attorney was also denied. The trial court granted codefendant’s severance motion. At sentencing, the State recommended an extended-term sentence of 60 years, noting that defendant had previously been convicted of a double murder in 1968 and sentenced to death. His sentence was reduced by the Illinois Supreme Court and he was released on parole in 1980. The trial court sentenced defendant to an extended term of over 50 years in the Illinois Department of Corrections.

On appeal, defendant contends that the trial court erred (1) in denying him his sixth amendment right to confrontation by not allowing him to raise Marquette Fisher’s probationary status for cocaine possession; (2) in denying him his sixth amendment right to present a defense by denying his request to amend his discovery answer; (3) by refusing to instruct the jury on the lesser-included offense of robbery; and (4) by allowing improper prosecutorial comments in the closing argument.

We affirm.

On the morning of October 7, 1985, Patrick Parker was in his apartment with his girl friend, Kuanda Smith, and their three-month old baby, his brother, Marquette Fisher, and his uncle, Raymond Burnett. Between 9:30 and 10 a.m., Parker opened the door for his friend, Bucky Smith. Bucky stayed for a short time; when Parker opened the door to let him leave, defendant was standing at the door with a black .38 caliber revolver. He walked into the apartment, fired once at Parker and announced, “It’s a stickup.”

Parker was not hit and attempted to escape but was stopped in the hall by codefendant Troy Smith, Bucky Smith’s brother. Defendant and Troy wanted money and were told by Parker that it was in the back bedroom. Parker was led there at gunpoint. Defendant recovered $370 in cash stored under the mattress.

When they returned to the living room, Troy asked Bucky if he had a weapon. Bucky handed him a rifle owned by Parker’s roommate. Defendant brought Fisher into the living room, where Troy put a gun to Fisher’s head and demanded more money. Fisher directed him to the mattress in the front bedroom where $400 was hidden. When Fisher later checked the mattress, the $400 was gone.

Everyone in the apartment testified that defendant and Troy wanted still more money. Parker said he had more money downstairs. At gunpoint, Parker was taken to the apartment of Fannie Smith, Kuanda Smith’s mother. Defendant and Parker had walked through the apartment to the back porch when Parker’s dogs began to bark. Defendant threatened to kill them so Parker tied the dogs to a fence about 100 feet away. While doing so, he saw his other brother, Gregory Parker, looking down from the third-floor window. Parker made a hand gesture to signal to his brother that he was being robbed. Then he began to go back upstairs with defendant. When they reached Parker’s third-floor apartment, defendant was the first to enter. Parker was able to slam the door, leaving defendant inside the apartment. Parker then ran downstairs, spoke with Gregory, and called the police.

Back in Parker’s apartment, defendant demanded that Fisher remove his chains from his neck. Defendant then snatched the chains off his neck. In the meantime, Troy returned from the back room with a quilt that he used to wrap the rifle. Defendant and Troy threatened to return if anyone said anything. They left the apartment quickly and then returned and left again. They tried to reenter a third time, but Fisher and Burnett were holding a loveseat against the door. When shots were fired, Fisher and Burnett fled out the back door into the yard, where they jumped over the gate into the alley. Kuanda remained in the apartment in the closet. When she came out, defendant was in the bedroom and told her that he had to find a way out of the apartment.

Defendant’s attempt to leave by the back door was thwarted by police officer Donald Mitchell, who was standing at the bottom of the stairs. Officer Mitchell announced, “[Pjolice, come out where I could [sic] see all of you.” Defendant came out after about 30 seconds and was identified by Fisher as the person who had just robbed him. The items inventoried from defendant’s clothing were $370 cash, two chains, and a watch. Parker identified the watch as being part of his jewelry collection but had no memory of any personal marks of identification that may have been on it. Parker did not tell the police about the $400 taken by defendant from under the mattress until the day after the incident.

At trial, Troy Smith testified in his own defense. The witness stated that Parker propositioned him to “do something” to his brother Bucky because he owed them $800 for cocaine. He arranged to meet with Bucky at Parker’s apartment. The day of the meeting, Troy ran into defendant, who also had experienced some problems dealing cocaine with Parker. According to Troy, they went to Parker’s apartment together. When they arrived at the building, Troy made a stop before heading to the apartment. He testified that upon his arrival, he found defendant and Parker arguing about a drug deal. He did not see defendant with a gun. Fisher, Burnett and Bucky were also present.

Defendant and Parker left the room. Troy remained in the apartment with Fisher and Bucky. Troy testified that he took the gun from Bucky and collected all the other guns in the house, and wrapped them in a blanket. He testified that he collected the guns as a means of self-defense and was going to leave the blanket in the hallway near the entrance to the building. Just as he neared the entrance, a police officer approached and told him to “drop it.”

After Troy’s testimony, counsel for defendant stated that he had no knowledge of the State’s claim that the watch was taken during the armed robbery. Counsel stated that there was no mention of the watch in the complaint, the information, or at the preliminary hearing. Counsel asked the court to allow defendant’s father or brother to testify as to ownership of the watch. These requests to reopen the defense’s case were denied. The trial court found that the watch was

mentioned in the arrest report as having been recovered from defendant.

Officer Clausell Ray and Assistant State’s Attorney Peter Vilkelis testified in rebuttal to the testimony of Troy. The officer testified that Troy was standing outside of the doorway to the apartment when he was told to “drop it.” The assistant State’s Attorney testified that during the interview Troy said nothing about the incident being drug related. He further testified that Troy never stated that the guns in his possession at the time of the arrest were not owned by him.

The first issue on appeal is whether the trial court erred in denying defendant his sixth amendment right to confrontation by not allowing him to raise the probationary status of State’s witness Marquette Fisher. Fisher was on probation for cocaine possession. (See Ill. Rev. Stat. 1985, ch. 56½, par. 1410.) The relevant portion of section 410 provides:

“(a) Whenever any person who has not previously been convicted of, or placed on probation or court supervision for any offense under this Act or any law of the United States or of any State relating to cannabis or controlled substances, pleads guilty to or is found guilty of possession of a controlled or counterfeit substance under Section 402(b), the court, without entering a judgment and with the consent of such person, may sentence him to probation.

* * *

(e) Upon fulfillment of the terms and conditions of probation, the court shall discharge the person and dismiss the proceedings against him.” (Ill. Rev. Stat. 1985, ch. 56½, par. 1410.)

This panel has stated that successful completion of probation like that in the instant case, does not result in a conviction nor is it the basis for impeachment. People v. Johnson (1987), 154 Ill. App. 3d 301, 307.

At the time of trial, Fisher had not completed his probation sentence. The prosecution moved to preclude the defense from treating the probation as a judgment of conviction for impeachment purposes. Our review of the record indicates that the trial court was aware that defense counsel wanted to cross-examine on this issue to determine any bias, interest or motive in Fisher’s testimony. By then granting this motion, the trial court effectively sent a message to defense counsel that he would not be permitted to engage in this type of cross-examination. The right to cross-examine is not subject to the discretion of the trial court. (Alford v. United States (1931), 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 218.) However, given the nature of the evi-

dence in this case, we find that the error, if any, of the trial court is not grounds for reversal.

The inquiry to determine whether a constitutional error warrants a reversal is whether the error was harmless beyond a reasonable doubt. The United States Supreme Court measures this error using three approaches: (1) whether it might have contributed to the conviction; (2) whether other evidence is overwhelming in support of the conviction; or (3) whether the evidence is cumulative or merely duplicates properly admitted evidence. People v. Wilkerson (1981), 87 Ill. 2d 151, citing Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

Upon review of the record, we find that despite the trial court’s restriction of cross-examination, there is overwhelming evidence in this case that supports the conviction. The State cited People v. Glover (1988), 173 Ill. App. 3d 678, as analogous to the case at issue. The similarities between the two cases are significant. The defendants in both cases were found guilty of armed robbery. Both had eyewitnesses to the crime. Finally, the defendants in each case argued that the court’s restriction of their cross-examination was improper and constituted reversible error.

In Glover, the relevant portion of the court’s response to defendant’s argument went as follows:

“Even if the court’s restriction of [the witness’] cross-examination was improper, we find that the error was not prejudicial. The evidence against the defendants was overwhelming, as there were seven eyewitnesses to the robberies whose accounts of the incident substantially agreed in all essential respects. [The witness’] testimony was not crucial for the conviction of any of the defendants.” People v. Glover (1988), 173 Ill. App. 3d 678, 682-83.

Our response in the case at bar is similar. Here, we had three eyewitnesses. Patrick Parker and Kuanda Smith were in the apartment when defendant entered the apartment in order to execute a “stickup.” Even without the testimony of the third eyewitness, Marquette Fisher, we have the testimony of the police. Officers Ray and Mitchell apprehended defendant and Troy as they were exiting the building. Further, they had items belonging to the victims in their possession at that time. Thus, there was enough evidence to support a conviction without the testimony of Marquette Fisher.

The second issue on appeal is whether defendant was denied his sixth amendment right to present a defense by the denial of his request to amend his discovery answer. The sixth amendment compulsory process clause provides the following:

“In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor.” (Taylor v. Illinois (1988), 484 U.S. 400, 402 n.l, 98 L. Ed. 2d 798, 806 n.l, 108 S. Ct. 646, 649 n.l.)
“Few rights are more fundamental than that of an accused to present witnesses in his own defense.” (Taylor, 484 U.S. at 408, 98 L. Ed. 2d at 810, 108 S. Ct. at 652.) Yet, it does not negate the ability of the trial court to impose harsh sanctions for failure to comply with the rules of discovery.

Supreme Court Rule 415(g) expressly provides:

“(i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.
(ii) Wilful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.” 87 Ill. 2d R. 415(g).

Defendant argues that the trial court’s decision to exclude the testimony of his father was too severe and therefore amounted to the denial of his right to present a defense. Yet, the explanation that follows the rules leaves the imposition of sanctions to the trial court. The committee comments to the rule (87 Ill. 2d R. 415(g), Committee Comments) state:

“Rather than attempt to provide specific sanctions for specific violations, the Committee deemed it wise to leave the sanctions to the discretion of the trial court. *** If justified under the circumstances, the court may exclude evidence which a party has failed to disclose under applicable discovery rules.”

After the State rested, defendant sought to amend his list of witnesses to include his father. He requested the court to permit his father’s testimony as to ownership of the gold watch recovered from defendant at the time of his arrest. Defendant argues that he met his duty to disclose as soon as the intent to call his father as a witness was formed. The colloquy between defense counsel and the court went as follows:

“MR. KLOAK [DEFENSE COUNSEL]: The Defendant’s position is that he received that watch from his father and that it is his watch and not the watch of the complaining witness. His father is not available in court today, he has not been listed as a witness on the answer to discovery, and the reason for that is we didn’t know the watch was going to be claimed as a proceed of the armed robbery.
THE COURT: That is patently false.
MR. KLOAK: It does say on the arrest report that it was recovered from the Defendant.
THE COURT: It says recovered from the arrestees, $330 and two gold colored chains, watch, top shirt pocket, and it says right on the inventory October 7th, ’85, two gold chains, one thin, one thick, so please, your client was surrendered on that date and your client and you were on full notice of it, it was in the court file all this time and I just pulled it out right now.”

Further, the prosecutor mentioned that it was the first item listed on the answer to discovery. Given this information, the court was within its discretion in deciding to exclude defendant’s father’s testimony as well as the testimony of defendant’s brother.

Defendant focuses on the importance of the excluded testimony because of its ability to cast doubt on the credibility of Parker. The record indicates that the defense counsel was on notice that the watch might become an issue. By following the rules of discovery, defense counsel could have ensured that all testimony as to its ownership would have been heard by the jury. We find that the trial court did not abuse its discretion in excluding the testimony of defendant’s father.

Next, defendant contends that the trial court erred by refusing to instruct the jury on the lesser-included offense of robbery. He argues that Troy’s testimony, that he was unarmed and that he did not see defendant holding a gun, creates a question of fact as to whether an armed or unarmed robbery occurred.

A recent case referred to the Illinois Supreme Court on this issue. The relevant portion is as follows:

“[O]ur supreme court has stated that ‘an included-offense instruction is required only in cases where the jury could rationally find the defendant guilty of the lesser offense and not guilty of the greater offense.’ ” (Emphasis added.) (People v. Austin (1991), 216 Ill. App. 3d 913, 917, quoting People v. Perez (1985), 108 Ill. 2d 70, 81.)

Patrick Parker, Kuanda Smith, and Marquette Fisher were all eye witnesses to the incident. All three of them testified that defendant was armed. When Troy was apprehended by the police, he was carrying a blanket containing several weapons. This panel has stated that, “where none of the evidence can be interpreted to indicate an unarmed robbery, such an instruction is properly refused.” People v. Malaszenko (1979), 76 Ill. App. 3d 1, 7.

There was further testimony by an officer that defendant had an opportunity to dispose of his weapon before surrendering to police. Officer Mitchell testified that he announced himself to defendant by saying, “[PJolice, come out where I could [sic] see all of you.” He kept calling to defendant, who was on the third floor on the back porch of the building. Yet, it took defendant approximately 30 seconds before he came within full view of the officer. It is possible that defendant could have disposed of the gun during this time frame.

Finally, Troy’s testimony does not definitively state that defendant was unarmed. Troy said only that he was not able to see a gun. Three eyewitnesses testified as to the existence of a gun. They testified that both defendant and Troy were armed during the incident. This court is aware “that it is reversible error to instruct the jury on a lesser included offense, and thus permit the jury to reach a compromise verdict, when there is no evidentiary basis for the instruction.” (People v. Knieling (1982), 111 Ill. App. 3d 102, 109.) We therefore affirm the trial court’s decision not to tender to the jury a plain robbery instruction.

The final issue on appeal is that the trial court erred by allowing improper prosecutorial comments in the closing argument. The rebuttal remarks at issue are as follows:

“MS. WOLOSHIN [PROSECUTOR]: Let’s look at what the Defendants say. The only thing we hear in Mr. Cannon’s defense was his attorney told you in opening statements that no witnesses, no exhibits—
MR. KLOAK [DEFENSE COUNSEL]: Objection, Judge. Troy Smith.
MS. WOLOSHIN: The story from a man who wasn’t there, and what did he tell you in opening statement, the Defendant Cannon got money from some teachers to go buy cocaine on the Friday before. *** However, the cocaine he got was weak so he returned for a refund or a replacement ***. His story is uncorroborated, there are no witnesses, there is no evidence of it, it is false, it is a fabrication, it is a lie.”

Defendant argues that the assistant State’s Attorney’s comments focused the jury’s attention on the fact that he did not testify. Our supreme court holds the following:

“The appropriate test for determining whether a defendant’s right to remain silent has been violated is whether ‘the reference [was] intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify.’ [Citations.]” People v. Dixon (1982), 91 Ill. 2d 346, 350.

See also People v. Gonzalez (1991), 212 Ill. App. 3d 839, 843.

Here, defense counsel’s opening statement says the reason for defendant and Troy being at the residence of Parker involved a cocaine transaction. He alleged that defendant had purchased some cocaine from Parker. It was not of the strength defendant expected. On Monday, October 7, 1985, defendant was returning to Parker’s apartment to resolve the issue when he met Troy. They went to the apartment complex together. Defense counsel stated that the evidence would show what was promised in his opening statement. The prosecutor’s response focused on the fact that there was no evidentiary basis to support some of the allegations in defense counsel’s opening statement. “[F]ailure to produce evidence on a material matter injected into the case by the defense gives rise to the right of comment by the prosecution.” (People v. Durso (1968), 40 Ill. 2d 242, 253.) During the trial, nothing was presented as evidence that Patrick Parker either sold or used cocaine.

Defendant’s argument that there could be no reasonable expectation of testimony about a drug sale does not negate the right of the prosecutor to emphasize the strength of the State’s evidence. “It has been held that the State may properly argue that the testimony of its witnesses is uncontradicted even where the defendant is the only person who could have contradicted it.” (People v. Perry (1989), 183 Ill. App. 3d 534, 542.) Here, the prosecutor’s comments were a proper response to defense counsel’s unfulfilled promises of evidence. These comments did not constitute reversible error. See People v. Dixon (1982), 91 Ill. 2d 346.

For the foregoing reasons, we affirm defendant’s conviction and sentence for armed robbery.

Affirmed.

LINN and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
      In re D.C., a Minor (The People of the State of Illinois, Plaintiff-Appellee, v. D.C., a Minor, Defendant-Appellant).
    First District (5th Division)
    No. 1—90—0981
    Opinion filed July 17,1992.

      Rita A. Fry, Public Defender, of Chicago (Greg Koster, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Michelle R. Martone, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

On January 26, 1990, D.C., a minor, was found delinquent on a charge of first degree murder. On March 12, 1990, he was made a ward of the court and committed to the Department of Corrections.

On appeal D.C. argues that the trial court erred in its denial of his motion to suppress statements. D.C. also argues that he was denied a fair trial where his attorney called him to the stand to admit his guilt, argued erroneous legal theories and left the court no choice but to convict him of first degree murder.

For the following reasons, we affirm the decision of the trial court.

D.C. was charged with first degree murder for his alleged participation in the fatal beating of Amiri Tutwiler on December 20, 1987. D.C.’s pretrial motions to quash arrest and to suppress statements were heard alongside those of D.M. and J.D. D.C.’s case was heard in a simultaneous, severed proceeding with those of D.M. and J.D., whose cases are not currently before this court.

MOTION TO QUASH ARREST

On December 20, 1987, at 9 p.m. Amiri Tutwiler flashed the wrong gang signals; nine teenage males climbed out of a passing van and chased down and fatally beat him. On January 13, 1988, the police arrested and questioned three teenage males. G.S., A.S., and J.C. each implicated the respondent, an individual whom they referred to as “Booby.”

At 4 p.m. on January 13, 1988, Detectives Stephen Brownfield, Lawrence Nitsche and John Yucaitis proceeded to D.C.’s home. They spoke with Mrs. C. She stated that she did have a son, D.C., who went by the nickname “Booby.” Mrs. C. showed the detectives a picture of her son, D.C., and told the detectives where he might be found. Mrs. C. gave the police her card and asked them to call her with information regarding her son.

At 4:45 p.m. the three police officers stopped D.C. as he was crossing the street. He told the police officers his name was D.C. and that he was also known as “Booby.” The three officers handcuffed D.C. and placed him under arrest in the back seat of their car. The respondent’s pretrial motion to quash his arrest was denied by the trial court. No issue regarding the motion to quash arrest is raised on appeal.

MOTION TO SUPPRESS STATEMENTS

D.C. moved to suppress statements allegedly made by him on January 13, 1989, the day of his arrest. Those statements include those made to arresting detectives on the street at 4:45 p.m., at Area Two at 5:30 p.m., and those made to Assistant State’s Attorney Mary Shields (an oral statement made at 10:45 p.m. and a court-reported statement at 10:54 p.m.).

Detectives Stephen Brownfield, Lawrence Nitsche and John Yucaitis arrested D.C. as he was crossing 79th Street near Drexel and placed him in the back of their car on January 13, 1988, at 4:45 p.m. Detective Brownfield alleged and D.C. denied both that Detective Brownfield gave D.C. Miranda warnings and that D.C. gave Detective Brownfield a short synopsis of the events leading to the death of Amiri Tutwiler, implicating in the process co-respondent D.M.

The detectives arrested D.M. on the street a short time later. Detective Brownfield testified he “believed” he returned to the apartment of D.C.’s mother, Mrs. C., and told her that he arrested her son and was taking him to Area Two. Alternatively, D.C., D.M., and Mrs. C. each testified that Detective Brownfield neither returned to Mrs. C. ’s apartment nor notified her that he had arrested D.C.

Detectives Brownfield, Yucaitis and Nitsche transported D.C. and D. M. to Area Two. They arrived shortly before 5:30 p.m., and Detective Yucaitis took the respondent to an interview room. Detective Yucaitis alleged and D.C. denied the reading of Miranda warnings. D.C. alleged and Detective Yucaitis denied a promise of leniency in return for the incriminating statement respondent made to Yucaitis. Detective Brownfield “believed” D.C. was offered something to eat by himself or the other detectives. D.C. testified that the police officers did not offer him food, water, or use of washroom facilities.

The trial court suppressed D.C.’s statements to the arresting detectives in their car and at Area Two at 5:30 p.m. for two reasons. First, there was conflicting testimony with respect to the giving of Miranda warnings (no written waiver of rights form had been tendered to D.C.) and, second, because no adult who was interested in D.C.’s well-being was present during the statements.

Mrs. C. testified that the police had not informed her that her son had been arrested and was being taken to Area Two. At 8 p.m. Mrs. C. ’s daughter told Mrs. C. that she had heard news of D.C.’s arrest. Mrs. C. phoned police to find out where D.C. had been taken. She then drove to Area Two, arriving there between 9 and 9:30 p.m. Detective Brownfield testified that he did not know when Mrs. C. arrived at Area Two.

Upon her arrival at Area Two, Mrs. C. was directed upstairs to a lounge where she saw D.M.’s mother and J.D.’s mother. Mrs. C. testified that after waiting in the lounge for 30 minutes she spoke with Detective Brownfield and asked to see her son. According to Mrs. C., Detective Brownfield told her that D.C. was being held for murder and that it would be awhile before she could see him. Detective Brownfield did not refer to any conversation with Mrs. C. in his testimony. He stated, “[T]here was a bunch of mothers was [sic] there. We had at that time, we had quite a few youths in custody.” He testified that he never “denied” Mrs. C. the chance to see her son. Youth Officer William Radigan also testified he knew there were parents present at Area Two but did not know which ones or how many there were. He did not approach the desk sergeant and ask which parents were present.

Youth Officer Radigan testified he was not present when police questioned D.C. Youth Officer Radigan was present but silent during D. C.’s oral and court-reported statements to Assistant State’s Attorney Mary Shields (ASA Shields). ASA Shields did not introduce the youth officer to D.C. The youth officer did not say anything to D.C.

At 10:50 p.m., D.C. was joined in a room at Area Two police headquarters by arresting Officer Stephen Brownfield, Youth Officer William Radigan and ASA Shields. D.C. would refer to them “as a room full of white people.” ASA Shields offered D.C. food, water, and the opportunity to use the washroom. Before taking an oral statement from D.C., she also gave him Miranda warnings, which D.C. stated he understood. ASA Shields did not give D.C. a written Miranda waiver form to sign. D.C. testified that he had been unfamiliar with Miranda warnings and could not recall having received them on September 21, 1987, or October 11, 1987. However, Officers James Martin and Glen Evans testified that they were present when D.C. had been given Miranda warnings on those dates.

None of the individuals involved in taking the defendant’s statement told D.C. his mother was at the station trying to see him. Detective Brownfield testified that D.C. did not ask, in his presence, to use a phone or to have an adult or an attorney present. He also testified he “never denied” Mrs. C. a chance to see her son.

D.C. testified he was crying during the oral statement. ASA Shields testified that D.C. was not crying during the statements. ASA Shields also testified that D.C. made no complaint of mistreatment to her. ASA Shields questioned D.C. for a few minutes, at 10:50 p.m., then left. Youth Officer Radigan and Detective Brownfield left as well. At 10:54 p.m. ASA Shields returned with Youth Officer Radigan, Detective Brownfield and a court reporter. ASA Shields noted each person’s name and office for the record at the beginning of the court-reported statement. At 11:35 p.m. D.C. read the statement and initialed each page.

D.C. testified on his own behalf at the suppression hearing. The following is an excerpt from D.C.’s testimony:

“Q. Now before the State’s Attorney came into the room and read you your Miranda Rights and also interviewed you, did you see your mother?
A. No.
Q. Did anybody tell you that your mother was there?
A. No.
Q. Did anybody — did the State’s Attorney offer you food?
A. Yes.
Q. Did she offer you water?
A. Yes.
Q. Did she allow you to go the bathroom?
A. Yes.
Q. When she came in the room, did she tell you that you had a right to have your mother present during the questioning?
A. Yes.”

The trial court denied D.C.’s motion to suppress his two statements to ASA Shields, finding that the totality of the circumstances indicated that the statements to the assistant State’s Attorney had been freely and voluntarily made. In its memorandum opinion the trial court stated that it “considered the circumstances surrounding the making of the statements, the fact that there were no threats or promises, the relatively short time the actual interrogation took, [D.C.’s] age (14), his prior experience with the police and his physical condition.” The trial court further found that “[t]he evidence adduced at the hearing further establishes that [D.C.] was not even aware that his mother was at the police station and that he never asked to see her.” The court noted that while the youth officer did not actively participate in the interrogation of D.C., “it is clear that he was there and that [D.C.] had the ‘opportunity’ to ask him for any advice or counsel if he had chosen to do so.” The court found no physical or psychological coercion.

During the hearing on defendant’s motion, D.C.’s counsel argued that Mrs. C. indicated an interest in seeing her son prior to any interrogation and the police officers put her off. The trial court responded, “I agree that the police conduct left a lot to be desired in that regard.” Later in the argument the court commented, “I agree that the people (the parents of the boys) were there and the people (the police) danced around as far as them seeing the boys.” In its written findings of fact, however, the court found that while the parents were indeed at Area Two trying to see their sons:

“Evidence presented at the hearing on the pre-trial motions in this case, established that the scene at Area 2 on the evening of 1/13/88 was extremely hectic. Nine individuals were questioned and ultimately charged concerning the homicide of Tutwiler. Court reported statements were taken from nine people that evening. The mothers and possibly other relatives of these nine boys were at the station. This Court does not find that the exclusion of parents was purposeful by the police in an effort to isolate the minors from parents or relatives so as to coerce a statement.”

Defendant argues that the denial of his motion to suppress his statement was manifestly erroneous for three reasons. First, the police behavior in isolating the 14-year-old respondent from his mother was purposeful. Second, this police behavior alone, or in conjunction with the length of respondent’s incarceration and other factors, rendered his confession involuntary. Third, the mere physical presence of a silent, unintroduced gentleman bearing the title of “youth officer” did not accord the respondent a meaningful opportunity to speak with “an interested adult.” N.E.2d 910, citing People v. Prude (1977), 66 Ill. 2d 470, 363 N.E.2d 371.) The test of whether a confession was admissible at trial is whether the State has met its burden showing that it was made freely, voluntarily and without compulsion or inducement of any sort, or whether defendant’s will was overcome when he made the statement. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) In determining whether a statement was voluntary, the court must consider the totality of the relevant circumstances surrounding the making of the statement, including the existence of any threats, promises, or physical coercions; the length and intensity of the interrogation; and the age, intelligence, experience and physical condition of the defendant. (People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) A reviewing court will not disturb a finding by the trial court on the voluntariness of a confession unless the finding is contrary to the manifest weight of the evidence. People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525.

“With respect to voluntariness, confessions made by juveniles are generally subjected to the same scrutiny as confessions of adult defendants.” People v. Knox (1989), 186 Ill. App. 3d 808, 812, 542

Section 4 — 5(2) of the Juvenile Court Act of 1987 provides:

“(2) A law enforcement officer who takes a minor into custody without a warrant under Section 4 — 4 shall, if the minor is not released, immediately make a reasonable attempt to notify the parent or other person legally responsible for the minor’s care or the person with whom the minor resides that the minor has been taken into custody and where the minor is being held; and the law enforcement officer shall without unnecessary delay take the minor to the nearest juvenile police officer designated for such purposes in the county of venue.” (Ill. Rev. Stat. 1987, ch. 37, par. 804-5(2).)

However, even where the accused is a juvenile, the failure to have a parent present does not necessarily render statements made at that time inadmissible. (People v. Cook (1990), 201 Ill. App. 3d 449, 458, 558 N.E.2d 1268; People v. Steptore (1972), 51 Ill. 2d 208, 215, 281 N.E.2d 642, 645.) Although a juvenile does not have a per se right in Illinois to consult with a parent before questioning or to have the parent present during questioning, when evaluating the voluntariness of a confession or statement based on the totality of the circumstances test, the presence or absence of the parent is a factor to be considered. (People v. Brown (1989), 182 Ill. App. 3d 1046, 1053, 538 N.E.2d 909, 913.) “The key is whether the absence of an adult interested in defendant’s welfare as envisioned by the statute contributed to the coercive circumstances surrounding the interview.” (People v. Stachelek (1986), 145 Ill. App. 3d 391, 402, 495 N.E.2d 984, 992.) The record does not reflect that any of D.C.’s statements indicated that his confession was induced or his will overcome. Although the evidence with respect to the statements is somewhat contradictory, the issue was one of credibility, and nothing in the record suggests that the trial judge’s determination on that issue is contrary to the manifest weight of the evidence.

Noting that a juvenile does not have a per se right in Illinois to consult with a parent before questioning or to have the parent present during questioning, the court in People v. Brown (1989), 182 Ill. App. 3d 1046, 538 N.E.2d 909, stated:

“However, where they indicate an interest by their presence, parents should be allowed to confer with their child before, and to be present during, any questioning. The presence or absence of the parent is a factor in evaluating the voluntariness of a statement or confession under the totality of the circumstances test. [Citation.]
*** [T]he officers who know of the parent’s presence have an affirmative duty to inform those actually questioning a juvenile of the parent’s presence and request to see her child. And, in order to ensure the true voluntariness of a statement, those actually questioning the juvenile have an affirmative duty to stop the questioning and allow the parent to confer with her child.” (Brown, 182 Ill. App. 3d at 1053-54.)

The court in Brown held that the defendant’s inability to confer with his mother, combined with the failure of the police to advise the defendant of his Miranda rights, supported the trial judge’s finding that the statement was coerced.

Defendant also relies on People v. Knox (1989), 186 Ill. App. 3d 808, 542 N.E.2d 910. In Knox, the court stated, “We are most concerned that defendant’s statement was made before defendant had an opportunity to confer, prior to questioning, with an adult interested in his welfare, either his parents or a juvenile officer.” (Knox, 186 Ill. App. 3d at 813.) Although the police officers testified to the contrary, defendant denied that he had been read his Miranda rights and indicated that he did not know what those rights were. Defendant testified that as a police officer was leaving the room after he questioned the defendant, defendant asked him whether his mother had as yet arrived in the police station. The police officer said he would check, but he never came back to tell the defendant whether or not his mother was present. The court acknowledged that the statute does not require a juvenile officer be present under the circumstances as presented in that case, but held that the failure to have a juvenile officer present was material to determining the voluntariness of defendant’s statement. Knox, 186 Ill. App. 3d 808, 542 N.E.2d 910.

We feel that Knox is factually distinguishable from the present case. D.C. was advised of his Miranda rights and he stated that he understood them. Although the youth officer did not identify himself, he was present and testified that D.C.’s rights were not violated. D.C. testified that he was aware he could have his mother present.

In People v. Bobe (1992), 227 Ill. App. 3d 681, 704, the court, distinguishing Knox, recently stated:

“Thus, Knox does not mandate that a juvenile be allowed to speak with his parents and a juvenile officer, and it also does not require that a concerned adult be present every time a juvenile is questioned. As the court expressly stated, the defendant in Knox was not allowed to confer with any adult interested in his welfare before being questioned. Indeed, the Knox court distinguished the facts before it from those in People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984, noting that although the parents of the defendant in Stachelek were not notified of his arrest, the defendant ‘was afforded the opportunity to confer with a youth officer, an adult interested in his welfare, prior to making any statement.’ [Citation.] The Knox court observed that this distinction between the facts before it and those of Stachelek was ‘crucial.’ [Citation.]” (Emphasis in original.)

In Bobe the youth officer was present during the defendant’s first interview, but the youth officer was not present when the defendant was questioned. The appellate court noted that the trial judge made his decision that the evidence established that the statement was voluntary and found that the decision was not against the manifest weight of the evidence. People v. Bobe, 227 Ill. App. 3d at 705.

The Bobe court also found that the scene at the police station was very active. Although the defendant had been left handcuffed, alone and unfed in a room for several hours, the court noted that under the circumstances, a fact finder could conclude that the police did not wilfully neglect the defendant in an attempt to wear down his resistance. (People v. Bobe, 227 Ill. App. 3d at 705.) The trial court in the present case found that the scene at the station was hectic and that there was no evidence that the police purposefully excluded the parents of the boys. We find that the record supports the trial court’s finding.

In the present case, the defendant admitted that he was advised of his Miranda rights. D.C. also testified at the suppression hearing that he was aware that he could have his mother present during questioning. However, he never requested to have his mother present. Although the youth officer did not identify himself, he was present. The youth officer testified at trial that the defendant’s rights were not violated and the statement was not coerced.

During the motion to suppress, 18 witnesses were presented. The trial judge asked questions to clarify points. In rendering its decision, the trial court issued a 31-page memorandum opinion on the motions. The trial court considered all of the circumstances surrounding D.C.’s statement, including the fact that a parent was not present during questioning. Under the totality of the circumstances surrounding the the custodial interrogation of D.C., we believe the trial court’s denial of D.C.’s motion to suppress his court-reported statement was not against the manifest weight of the evidence.

TRIAL

Both the State and the defense waived opening arguments. The trial court received stipulations that (1) Amiri Tutwiler died on December 20, 1987, (2) fire department paramedic Sam Clerk would identify photographs of the deceased, and (3) Michael Chambliss, M.D., and Michael Schaeffer, Ph.D., would testify in accordance with their written post-mortem exam and toxicology analyses.

Youth Officer Radigan was the only witness called to testify on behalf of the State. He testified that he was present on January 13, 1988, at Area Two headquarters, while a statement was taken from D.C. Officer Radigan witnessed D.C. initial and sign each page of his statement. Officer Radigan testified that neither he nor anyone in his presence struck or intimidated D.C.

The statement given by D.C. was then read into the record. D.C.’s statement related that on December 20, 1987, he was on the corner of 82nd and Ellis. He was coming out of a store when he heard someone calling his name from a van across the street. He ran over to the van and he and his friend D. got in the van. A number of other boys were in the van. The boys all belonged to the Disciples. D.C. stated that he belonged to that gang. They saw and chased, but failed to catch, a Vice Lord member at 75th and Cottage Grove. Sometime later they chased and caught the decedent, Amiri Tutwiler. Amiri Tutwiler had his hat turned to the left. That was a sign that he was a member of the rival Vice Lord gang. One of the boys came out with a bat. Subsequently, the boys all got back in the van and rode in it to where the decedent was. Everybody jumped out of the van again. When D.C. caught up with the decedent, he was already on the ground. D.C. testified he hit the decedent twice with his fists and kicked him in the shoulder, and that he saw others hit and kick the decedent numerous times, and strike the decedent with a baseball bat. D.C. stated that no one made any threats or promises to him in order to induce the statement. The State then rested its case in chief.

D.C. was called to the stand by defense counsel. D.C. testified that he hit and kicked the deceased out of fear of being beaten by others of the party if he didn’t. He further testified he was not a gang member and did not intend to kill the decedent. Defense counsel offered a stipulation that if Dr. Chambliss were called to testify, he would testify that “any striking of the shoulder of Amiri Tutwiler by [D.C.] was not fatal.” In closing argument counsel argued that D.C. did not intend to kill the decedent, was forced to strike the decedent out of his fear of the other juveniles, and was not a gang member.

Upon hearing D.C.’s in-court admission to hitting and kicking the decedent and his counsel’s closing argument, the trial court commented, “I'm not quite sure I understand what the theory of the defense is in this case.” The trial court specifically informed defense counsel that (1) the State was not required to prove a specific intent to kill in order to sustain a murder conviction, (2) compulsion is not a defense to murder in Illinois, and (3) D.C.’s gang status or lack of same was irrelevant. The trial court noted that, “the defense has offered no defense at all,” and entered a finding of delinquency as to the count of first degree murder. The court made the defendant a ward of the court, citing the brutal nature of the offense.

D.C. contends on appeal that he was denied effective assistance of counsel. He argues that his trial counsel failed to subject the prosecution’s case to meaningful adversarial testing by waiving opening argument, failing to cross-examine any of the State’s witnesses, and then by putting D.C. on the stand to tell the trier of fact that he had personally taken part in the fatal beating of Amiri Tutwiler.

In People v. Allánese (1984), 104 Ill. 2d 504, 526, 473 N.E.2d 1246, the Illinois Supreme Court adopted the standard for incompetence of counsel set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. The test is a two-pronged test. First, the defendant must prove that his counsel made errors so serious, and his performance was so deficient, that he was not functioning as the “counsel” guaranteed the defendant by the sixth amendment of the United States Constitution. Second, the defendant must prove these deficiencies so prejudiced the defendant as to deprive him of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

A reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and avoid interfering with the constitutionally protected independence of counsel or restricting counsel’s wide latitude in making tactical decisions. (People v. Colley (1988), 173 Ill. App. 3d 798, 528 N.E.2d 223.) The adequacy of counsel’s performance is to be determined on the basis of the totality of his conduct at trial rather than on isolated events or acts. (Colley, 173 Ill. App. 3d at 809, 528 N.E.2d at 231.) A defendant is entitled to competent, not perfect, representation. People v. Nutall (1980), 91 Ill. App. 3d 758, 415 N.E.2d 628.

It is well settled that a review of counsel’s competence does not extend to areas involving the exercise of judgment, discretion and tactics. (People v. Baer (1976), 35 Ill. App. 3d 391, 342 N.E.2d 177.) The decision to make or waive an opening statement is a matter of trial strategy (People v. Jennings (1986), 142 Ill. App. 3d 1014, 492 N.E.2d 600), as is the decision to cross-examine a witness. Moreover, a client must accept the consequences of the lawyer’s decision to forgo such trial practices as cross-examination. Taylor v. Illinois (1988), 484 U.S. 400, 418, 98 L. Ed. 2d 798, 816, 108 S. Ct. 646, 658.

D.C. argues that defense counsel put respondent on the stand to testify that he had personally taken part in the beating of the victim. The following is an excerpt from D.C.’s testimony:

“MR. HICKS [Defense Counsel]: Q. I show you the statement. Would you look at page 4. This is a copy of that statement; isn’t it. Is this a copy of that statement?
A. [D.C.] Right.
Q. Okay. Look at page 4. And you see there where there is an answer first of no? That’s scratched out and then next to it is the answer, ‘yes,’ written in. Do you see that?
A. Right.
Q. The question was, ‘Do you belong to any gang?’ Did you understand that?
A. Yes.
Q. Now who scratched out the ‘no’ and wrote the, ‘yes.’
A. I did.
Q. You did?
A. Yes.
Q. Speak up so I can hear you.
A. Yes.
Q. Now, who struck out this next question, ‘Have you ever?’
A. I don’t understand the question.
Q. So you see where underneath the, ‘no,’ where those are stricken out; do you see underneath there were some more-are words that are stricken out?
A. Yes.
Q. In fact there are two lines of words stricken out. Do you see that?
A. Yes.
Q. Who struck those lines?
A. I did.
Q. And then under that skip two more lines and the word Vice Lord is stricken out, and Disciples, D-e-c-i-p-l-e-s is written next to that?
A. Yes.
Q. Did you write the word disciples?
A. Yes.
Q. Now, did you make those changes of yes and Disciples?
A. Yes.
Q. So your original answer was no that you did not belong to a gang; isn’t that correct?
A. Yes.
Q. What is the reason that you changed it to yes?
A. Because I was told if I would cooperate and would tell them what they wanted to hear, that I would be able to go home.
Q. Did you believe that they wanted to hear that you were a gang member?
A. Yes.
MR. COMROE: Objection to what he believes they wanted to hear.
THE COURT: Answer the question. Overruled.
THE WITNESS: Yes.
MR. HICKS: Q. Did you believe they wanted to hear that you were Disciples?
A. Yes.”

The evidence presented at trial confirmed that the cause of Amiri Tutwiler’s death was a beating and further that no single blow caused the death. D.C. gave a court-reported statement to ASA Shields, admitting his participation in the event. D.C. signed each page of the court-reported statement and this statement was read into evidence. The State’s main evidence against D.C. was his own words; his signed court-reported statement. Clearly, the above line of questioning was intended to attack the veracity of this statement. At trial D.C. testified that he gave the statement because he was told he would be able to go home if he told them what they wanted to hear. Defense counsel was attempting to offset the devastating effect of the prosecution’s most damaging evidence.

Defense counsel argued the theory of compulsion, which is not a defense in Illinois. When arguing the theory of compulsion, defense counsel knew he had lost the motion to suppress the court-reported statement and that the statement was read into evidence. The State argues, and we agree, that defense counsel could have been making a tactical decision, looking ahead to the argument in mitigation in order to win a lighter sentence for D.C.

In People v. Ganus (1992), 148 Ill. 2d 466, defendant contended that his counsel labored under the misconception that compulsion was an available defense. Defense counsel offered evidence of compulsion. The court held that regardless of defense counsel’s intentions regarding compulsion, this evidence was relevant as mitigation, and its use as such was defense counsel’s principle reason for eliciting it. (People v. Ganus, 148 Ill. 2d at 472,) The choice of evidence to present is a matter of trial strategy to which a court considering a claim of ineffective assistance will normally defer. Strickland v. Washington (1984), 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694-95, 104 S. Ct. 2052, 2065; People v. Barrow (1989), 133 Ill. 2d 226, 247, 549 N.E.2d 240.

After a review of the totality of defense counsel’s performance, we do not find that D.C. received ineffective assistance of counsel. Defense counsel argued and won motions to suppress D.C.’s statements given at the time of his arrest and statements given when he was brought to Area Two headquarters. Defense counsel argued and lost a motion to quash the arrest and a motion to suppress the oral and court-reported statements given at approximately 11 p.m. on January 13, 1988. At trial defense counsel argued for a directed verdict at the close of the State’s case, presented D.C.’s testimony that his confession was coerced and gave a closing argument. After the trial judge found defendant guilty, defense counsel filed a motion for a new trial. Defense counsel’s actions cannot be characterized as unreasonable under the first prong of the Strickland standard.

The Illinois Supreme Court stated in People v. Johnson (1989), 128 Ill. 2d 253, 271, 538 N.E.2d 1118, 1125:

“Claims of ineffective assistance of counsel may be disposed of on the ground that the defendant suffered no prejudice from the claimed errors, without deciding the first prong, whether the errors were serious enough to constitute less than reasonably effective assistance. [Citation.] Under the second prong of Strickland the defendant must show that there is a ‘reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’ [Citation.]”

Even if any of the alleged improprieties had constituted unprofessional errors, we find nothing in the record to suggest prejudice to D.C. as a result of his counsel’s trial tactics. The evidence against D.C. was overwhelming. D.C.’s statement incriminating himself was read into evidence. Medical testimony corroborated that Amiri Tutwiler was beaten to death. Therefore, we find that the second prong of the Strickland test was not established. We conclude that defendant was not denied effective assistance of counsel.

Where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, there has been a denial of sixth amendment rights that makes the adversary process itself presumptively unreliable. Defendant argues that his trial counsel’s actions in the present case constitute a failure to subject the prosecution’s case to a meaningful adversarial testing and, under People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, and People v. Chandler (1989), 129 Ill. 2d 233, 243, 543 N.E.2d 1290, his conviction must be reversed.

In People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, the Illinois Supreme Court held that the defense counsel’s performance was per se ineffective. In Hattery, the defendant had pled not guilty to a murder charge. Defendant’s trial counsel, in an effort to avoid the death penalty, admitted defendant’s guilt in his opening statement, failed to advance any theory of defense, attempted to establish on cross-examination that the defendant was compelled to kill victims and failed to make a closing argument. The Illinois Supreme Court found the prosecution’s case was not subjected to the “meaningful adversarial testing” required by the sixth amendment and granted the defendant a new trial regardless of the overwhelming proof of guilt. Hattery, 109 Ill. 2d at 464.

In People v. Johnson (1989), 128 Ill. 2d 253, 269, 538 N.E.2d 1118, the Illinois Supreme court stated that Hattery did not hold that it is per se ineffectiveness of counsel whenever an attorney concedes his client’s guilt to offenses and the record fails to show the client’s consent. The court noted that “if a concession of guilt is made, ineffectiveness may be established; however, the defendant faces a high burden before he can forsake the two-part Strickland test.” Johnson, 128 Ill. 2d at 269-70.

In People v. Ganus, the Illinois Supreme Court noted that it was aware of some similarities between that case and Hattery. However, in distinguishing Hattery, the court found that the defendant in Ganus literally had no defense and the evidence of his guilt was overwhelming. The court also stated:

“His counsel conceived a compulsion defense which, though not a legal defense, could or might have persuaded a jury not to convict. * * * A weak or insufficient defense does not indicate ineffectiveness of counsel in a case where a defendant has no defense.” People v. Ganus, 148 Ill. 2d at 473-74.q

Defense counsel presented various pretrial motions. As previously stated, the defendant’s statement was read to the jury prior to D.C. taking the stand. Defense counsel did not elicit any incriminating statements from D.C. that were not already admitted in D.C.’s court-reported statement. After a careful review of the record,, we do not find that defense counsel’s performance in this case was per se ineffective so as to disregard the two-pronged Strickland test.

Accordingly, for all the reasons set forth above, we affirm the decision of the trial court.

Judgment affirmed.

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


author: JUSTICE CERDA

text:
    ROBERT LANGENDORF et al., on Behalf of Themselves and All Other Persons and Entities Similarly Situated, Plaintiffs-Appellees, v. IRVING TRUST COMPANY, Defendant-Appellee (Stanley Epstein et al., Plaintiffs-Appellants).
    First District (3rd Division)
    No. 1—90—0319
    Opinion filed December 30, 1992.

      Edna Selan Epstein, of Chicago, for appellants.
    Larry D. Drury, Ltd., of Chicago, for appellees Robert Langendorf and Cynthia Langendorf.
   JUSTICE CERDA

delivered the opinion of the court:

Following a settlement agreement on a national class action, two class members, plaintiffs, Stanley and Harriet Epstein, objected to the terms of the agreement. They were denied leave to intervene, to conduct discovery, represent other objectors at the fairness hearing, and negotiate a better settlement. On appeal, they assert that (1) the settlement was not fair and reasonable; (2) the trial court did not conduct a genuine fairness hearing; and (3) the class notices were fatally defective. We affirm.

In 1987, defendant, Irving Trust Company (Irving), established the One Wall Street Account (Account), which was a high-yield money market account. The Account attracted large balances, averaging approximately $40,000. The Account’s provisions were governed by a written contract, the One Wall Street Account Agreement (Agreement). Initially, Irving paid Account depositors a specified number of “basis points, ” which is one-hundredth of a percent, above the Donoghue Fund money market rate (Fund), a well-known average of other money market funds. The depositors were classified into four levels and paid the following interest on their balances:

Level Balance Interest
Level A $15,000 or more Fund rate plus 50
basis points (0.50%)
Level B $2,500 to $14,999 Fund rate plus 25
basis points (0.25%)
Level C $25 to $2,4999 5.25 %
Level D Under $25 No interest

Paragraph 24 of the Agreement provides:

“24. Closing or Reducing Your Account:
We may close your account at any time for any reason.”

In addition, the Agreement provided for any prospective changes. Paragraph 33 provided:

“33. Change of Terms:
We may change this agreement at any time, but we will give you notice of any changes as required by law.”

In 1989, after giving advance written notice, Irving changed the Account’s interest rate structure. The following payment system was adopted effective April 14,1989:

Level Balance Interest
Level A $100,000 and above Fund rate plus 25
basis points (0.25%)
Level B $50,000 to $99,999 Fund rate plus 10
basis points (0.10%)
Level C $2,500 to $49,999 Fund rate
Level D Under $2,500 No interest

Irving announced that these rates would remain in effect until May 26, 1989. After that date, the interest rates would be set weekly based on market conditions.

On May 18, 1989, plaintiffs Robert and Cynthia Langendorf, who were Account depositors and Illinois residents, filed a class action complaint against Irving. In their complaint, plaintiffs alleged that Irving had breached the Agreement, made misrepresentations and omissions to depositors in the Account’s promotional materials, and engaged in conduct that violated the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 1211/2, par. 261 et seq.) and the Illinois Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1989, ch. 121½, par. 311 et seq.). According to plaintiffs, those claims arose when Irving changed the Account’s provisions. The lawsuit was later certified as a nationwide class of all the Account’s depositors.

After the complaint was filed, the parties’ attorneys met to discuss whether the suit could be settled without lengthy and expensive proceedings. According to the attorneys, the parties exchanged information and discussed their respective legal positions, including the impact of the Garber v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 675, decision and the Agreement’s provisions on plaintiffs’ prospects for recovery.

After weeks of negotiations, the parties reached an agreement in principle. No formal discovery was conducted. The statement of settlement in principle was filed with the circuit court on July 26, 1989, and presented at a pretrial conference on August 15, 1989. The negotiations continued, culminating in the execution of a settlement agreement in September 1989. On October 25, 1989, the trial court granted preliminary approval of the stipulation of class action settlement and the form and manner of notice. A fairness hearing was set for January 17,1990.

Throughout the negotiations, Irving denied any wrongful conduct and disclaimed any liability to plaintiffs. In exchange for release of the claims of the class, the settlement granted the class the following benefits:

(1) Irving agreed to .the certification of a settlement class.
(2) Irving paid all costs of the notice to the 21,205 members of the settlement class, totalling over $164,000.
(3) Irving provided the class members additional bank services, including:
(a) Priority Savings Account.
A high-yield savings account. Irving agreed to waive for two years the $5-per-month maintenance charge on any account with less than a $2,500 balance. Instead, the $5 fee would be charged only if the account balance was less than $500. There is also an option of one of two associated checking accounts, a non-interest-bearing account and an interest-bearing NOW account with a $5,000 minimum balance.
(b) Credit Card.
Irving agreed to waive its annual fee ($40 for gold cards and $18 for regular cards) for one year for one credit card, beginning on the date the card is issued. Class members would be charged finance charges of .4% below the usual rate on outstanding balances for two years.
(4) Irving agreed to pay an interest rebate from April 14, 1989, through August 31, 1989. Irving agreed to restore the level A, B, and C thresholds originally in effect and to pay the interest rebate as follows:
Level Balance Interest
Level A $15,000 or more Difference between
interest actually
received and 10 basis
points (0.10%) above
the Fund average
Level B $2,500 to $14,999 Difference between
interest actually
received and 5 basis
points (0.05%) above
the Fund average
Level C $25 to $2,499 Difference between
interest actually
received and 1.3125%.
(5) From August 31, 1989, through the termination of the Account in early 1990, class members with funds on deposit would receive interest at the rate in effect for Irving’s Priority savings account.

Irving mailed notices to all potential class members, advising them of the settlement terms, how a class member could opt out of the settlement class, and how a class member could object to the settlement terms. The notice stated that a request to be excluded from the class or to object to the settlement terms had to be filed in writing no later than December 15, 1989. The trial court declared that unless an objecting party served and filed written objections prior to December 15, 1989, the class member would be deemed to have waived any objection and would be forever barred from raising an objection in any judicial proceedings.

Of the 12,747 class members who submitted claim forms, 5,293 requested a priority savings account and 851 requested a credit card. Interest rebates were given. In addition, Irving did not reduce the interest rate paid to the Account depositors in July and August even though they were below the market rates. Irving treated those rates as a prepayment to the settlement class of approximately $82,468 of the $350,859 total interest rebate.

The Epsteins did not request to opt out of the class. On December 13, 1989, they filed a motion to intervene for the purpose of objecting to and challenging the terms of the proposed settlement. On December 18, 1989, the trial court found the motion deficient and denied the motion without prejudice.

On December 21, 1989, the Epsteins refiled their petition to intervene. Plaintiff class members then filed a motion to strike the petition and supporting documents. The trial court granted the motion and found that the late intervention would lend nothing to the case. The Epsteins, however, were given full opportunity to object at the fairness hearing.

On January 17, 1990, a fairness hearing was conducted by the trial court. The only objectors present were the Epsteins. The trial court considered all the written objections that had been filed as well as the statements by class members who were in favor of the settlement. The trial court approved the settlement, finding that it is fair and reasonable, the settlement’s benefit to the class exceeds the likely benefit of litigation to the class, the filed objections are groundless, Irving was to pay the attorney fees, and the attorney fees are reasonable.

On appeal, the Epsteins assert that the trial court abused its discretion approving the class action settlement because its terms are not fair, reasonable, or in the class’ best interest. According to the Epsteins, the settlement does not meet the criteria for reasonableness or adequacy in that (1) the relief is much less than the solicitations offered; (2) the relief is substantially less than sought in the complaint; (3) no discernible discovery was conducted; (4) the parties negotiated the attorney fees and class relief simultaneously; and (5) the settlement does not protect a subclass comprised of those depositors who closed their Account prior to April 14, 1989, when the interest rebate period began.

First, the Epsteins contend that the interest rate rebate is illusory because it is to be paid only on deposits from April 14, 1989, through August 31, 1989, a 41/2-month period, and it is less than the original guaranteed interest rate above the Donoghue Fund Money Market Rate. Further, the Epsteins claim that the interest rate paid during that period was comparable to rates other banks were paying. Although Irving calculated the rebate’s worth at $350,858.88, the Epsteins maintain that only $82,468.27 was paid and that no further rebate money was forthcoming. There is no support in the record for the Epsteins’ contentions. Instead, they state conclusions and suppositions.

The Epsteins also assert that the alternative benefits offered are illusory. The benefits include a priority account with a checking account. Irving would waive the usual $5-per-month fee on accounts with deposits between $500 and $2,500. For any accounts with less than $500, there was no waiver. The Epsteins contend that this is an illusory benefit because most of the class members had more than $2,500 in the account, which would not involve any fee. Furthermore, the Epsteins argue, the depositors were lured to place rather large amounts of money into the account by offering advantageous interest rates, and only 5,293 class members, or less than 25% of the class, requested the priority account. Therefore, Epsteins conclude, the benefit is valueless to the class. Again, the Epsteins do not cite evidence in the record for their arguments. Instead, they rely on mere conclusions and assumptions.

Irving also offered a credit card to the class members. The annual fee was waived for one year and the interest rate would be .40% less than the usual interest rate for two years. The Epsteins maintain that this credit card benefit is illusory because many other banks were offering no-fee credit cards and most of the class members had all the credit cards they wanted or could use. The only support for their conclusions is that only 851 class members requested a credit card.

The Epsteins also argue that the .40% reduction of interest is illusory because the minimum interest is 14%, which is higher than Irving pays on deposits. In addition, the Epsteins remark, the class members are able to pay off their entire balance every month and often do so because the interest is no longer tax deductible. As with their other arguments, the Epsteins do not base their conclusions on evidence in the record.

The Epsteins argue that the trial court abused its discretion when it did not require the proponents of the settlement to address those concerns raised by the objectors. The Epsteins conclude that the failure to include a real and reasonable interest rebate, comparable to the promised rate, as an essential part of the settlement, could only be justified if the compensating noncash benefits are real rather than illusory.

The Epsteins maintain that the settlement was not fair under a nine-step test for judging fairness of a settlement, which is (1) the strength on the merits balanced against the amount offered in settlement (the Epsteins argue that this criterion is in plaintiffs’ favor since the amount of the settlement is illusory); (2) defendant’s ability to pay (the Epsteins contend that the bank could pay the promised interest for a reasonable fee since the bank is presumably profitable); (3) the complexity, length, and expense of future litigation (the Epsteins claim that the litigation would have been negligible); (4) amount of opposition to the settlement (the Epsteins contend that 44% of the class members objected because they did not file claim forms); (5) presence of collusion in reaching settlement (the Epsteins contend that this is shown in the speed of the settlement and the size of the legal fees compared to the size of the nonexistent class benefits); (6) reaction of class members to the settlement (the Epsteins claim that the 25 objecting members were vocal and outraged); (7) opinion of competent counsel; (8) stage of proceedings and amount of discovery completed (the Epsteins argue that the unseemly haste of the settlement was not in the interest of justice since no discovery was conducted and not even an answer was filed); and (9) whether the settlement initiates or authorizes questionable or illegal conduct (the Epsteins claim that the settlement authorizes illegal conduct because the underlying issue will not be litigated).

In response, Irving asserts that the Epsteins ignore the central issue, which is the relative merits of the underlying complaint, including the Agreement’s express terms and the holding in the Garber decision, where a dismissal of a class action was affirmed because financial institutions can change account terms after proper notice. Irving concludes that the settlement is fair and reasonable. We agree.

A settlement compromising conflicting positions in class action litigation serves the public interest. (People ex. rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 317; Armstrong v. Board of School Directors (7th Cir. 1980), 616 F.2d 305, 313; Alliance to End Repression v. City of Chicago (N.D. Ill. 1981), 91 F.R.D. 182, 196.) The standard to be used in evaluating the compromise settlement of a class action is that the agreement must be fair, reasonable, and adequate. Wilcox, 61 Ill. 2d at 317; Waters v. City of Chicago (1981), 95 Ill. App. 3d 919, 925.

Since the settlement is a compromise, the trial court may not decide the merits of a case, attempt to resolve disputed issues of fact or law, or substitute its own judgment for that of the parties. (Wilcox, 61 Ill. 2d at 316; Armstrong, 616 F.2d at 314-15.) Instead, the trial court must view the settlement as a whole, considering all relevant factors in assessing the compromise. (Wilcox, 61 Ill. 2d at 319.) While courts and commentators have suggested a variety of tests to evaluate the fairness of a class action settlement, it is generally agreed that the most important factor is the comparison of the terms of the compromise with the likely results of the litigation. Wilcox, 61 Ill. 2d at 317. See also Armstrong, 616 F.2d at 314; Alliance to End Repression, 91 F.R.D. at 196.

In the Wilcox case the court stated:

“The Supreme Court has directed that a judge reach ‘an intelligent and objective opinion of the probabilities of ultimate success should the claim be litigated’ and to ‘form an educated estimate of the complexity, expense, and likely duration of such litigation *** and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise. Basic to this process in every instance, of course, is the need to compare the terms of the compromise with the likely rewards of litigation.’ ” Wilcox, 61 Ill. 2d at 317, quoting Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson (1968), 390 U.S. 414, 424-25, 20 L. Ed. 2d 1, 10, 88 S. Ct. 1157, 1163.

In considering the likely results of the litigation, we believe that the chance of plaintiffs’ success on the merits was small. Not only did the Agreement’s “change of terms” and “cancellation” provisions explicitly allow the modifications (Garber, 104 Ill. App. 3d at 682), but Irving’s conduct was also permitted by the doctrine that a contracting party has the power to terminate indefinite contracts and to make prospective changes to the agreement’s terms. (Garber, 104 Ill. App. 3d at 680-85.) Where no definite time is fixed during which an executory contract shall continue in force, it is terminable at the will of either party and can be modified at any time as a condition of its continuance. Alderman Drugs, Inc. v. Metropolitan Life Insurance Co. (1987), 161 Ill. App. 3d 783, 791; Garber, 104 Ill. App. 3d at 682.

In Garber, issuers of credit cards altered the account terms to impose additional charges and enact other terms unfavorable to the cardholders. (Garber, 104 Ill. App. 3d at 677.) Plaintiffs claimed that the changes constituted a breach of the credit card agreements. (Garber, 104 Ill. App. 3d at 677.) The court found that the cardholder agreements were terminable at will by virtue of their cancellation provisions. (Garber, 104 Ill. App. 3d at 682.) Therefore, the agreements could be modified at any time as to future transactions, the court concluded. Garber, 104 Ill. App. 3d at 683.

The Epsteins argue that the Garber case is not applicable because the facts are not comparable to this case. We disagree. Although the court in Garber held that the issuance of a credit card is only an offer to extend credit, not the creation of a contract, the court did not limit its ruling to credit card cases. If the credit card agreement was a valid contract, the court held that it was terminable at will because the contract was for an indefinite duration and included a cancellation clause. (Garber, 104 Ill. App. 3d at 679-83.) Similarly, in this case, the Account was terminable at will because the Agreement was for an indefinite duration and included a cancellation clause.

We conclude that the trial court did not abuse its discretion in approving the settlement. (Wilcox, 61 Ill. 2d at 317.) It is apparent that some benefit was afforded to all members of the class through the interest rebate and other alternative bank benefits offered. When these benefits are weighed against the slim probability of success on the merits of the case and the cost and duration of litigation if a compromise had not been effected, we conclude that the trial court properly determined that the settlement was adequate, fair, and reasonable.

Next, the Epsteins assert that an entire subclass is not protected. The Epsteins characterize the subclass as those depositors who withdrew all their deposits before the rebate period began.

We reject this argument. There is no evidence presented in the record regarding the number of people, if any, who are part of any alleged subclass. Even the Epsteins admit that they have no evidence of how many depositors withdrew their money before April 14, 1989. Furthermore, any such class members were eligible for the benefit of the bank services.

Next, the Epsteins challenge the $125,000 in attorney fees as being unconscionably excessive for the benefits conferred, thus resulting in an abuse of discretion by the trial court.

In Fiorito v. Jones (1978), 72 Ill. 2d 73, the court stated:

“When the court has determined the number of hours which benefit the class, it must then value the services by fixing a reasonable hourly rate for each attorney, taking into account the nature of the services performed, the complexity of the undertaking and the hourly fee charged for similar services by attorneys with similar skills and qualifications. *** The appropriate hourly rates are then multiplied by the hours expended. The product of this multiplication is referred to as the ‘lodestar’ computation.” Fiorito, 72 Ill. 2d at 90.

Although the Epsteins recognize that multipliers are permissible in class actions (Fiorito, 72 Ill. 2d at 90), they argue that this multiplier was improper because the likelihood of plaintiffs’ success on the merits was high and the actual benefits conferred to the class were minimal.

Application of a multiplier depends on two factors: the contingent nature of the class’ recovery (an unlikely recovery justifying an increased fee) and the quality of the benefit to the class. (Waters, 95 Ill. App. 3d at 926.) The contingent nature is examined in light of the probability of the plaintiff’s success at the time the suit was filed. Waters v. Chicago (1981), 111 Ill. App. 3d 51, 59.

Although it is unusual for such a quick settlement as occurred in this case, the settlement obtained a favorable benefit to the class without lengthy, costly litigation. Even with no formal discovery conducted, the parties exchanged informal discovery, evaluated the case’s strengths and weaknesses, and obtained a favorable settlement without any expense to the class. As we discussed earlier, we believe that the likelihood of plaintiffs’ success on the merits was low and the actual benefits conferred to the class were adequate. Therefore, we conclude that the trial court did not abuse its discretion in approving the attorney fees. Lurie v. Canadian Javelin Ltd. (1982), 93 Ill. 2d 231, 239.

Next, the Epsteins claim that the trial court did not conduct a genuine fairness hearing and that the class notice was fatally defective. The Epsteins waived these claims of error. They participated in the fairness hearing, but did not raise any objection to the notice or proceedings. Therefore, they cannot now raise those objections on appeal.

Next, the Epsteins mistakenly argue that the proponents never addressed the written objections from 25 class members. The record indicates that Irving addressed the written objections in its memorandum supporting the settlement.

Finally, we reject the Epsteins’ assertion that the trial court abused its discretion by refusing to permit them to intervene in the class action. It is well established that disallowance of intervention in a pending lawsuit will not be overturned on appeal unless there is a clear abuse of discretion. Waters, 111 Ill. App. 3d at 60; Waters, 95 Ill. App. 3d at 923.

The Epsteins have not demonstrated that the trial court’s denial of their eleventh-hour petition was an abuse of discretion. Their request came at a late date, and they did not present any reason why they had to intervene. In addition, the Epsteins were allowed to fully participate as objectors in the fairness hearing. Therefore, we conclude that the trial court did not abuse its discretion.

Based on the foregoing, the circuit court judgment is affirmed.

Affirmed.

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


author: PRESIDING JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM NORTON, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—1119
    Opinion filed December 31, 1992.

      Michael J. Pelletier and Craig Jago Beauchamp, 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 Christopher Daddino, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

After a jury trial, defendant William Norton was found guilty of first degree murder and sentenced to 40 years’ imprisonment. Defendant appeals, contending that: (1) the court improperly admitted evidence of defendant’s gang affiliation; (2) the prosecutor committed reversible error when he failed to prove up the impeachment of defendant and an alibi witness with prior inconsistent statements; (3) the trial court erred in not allowing defense counsel to present hearsay evidence of a recanting eyewitness; and (4) the trial court abused its discretion by sentencing defendant to 40 years’ imprisonment. For the reasons that follow, we affirm.

Fidel Torres testified that he was a member of the street gang, the Bishops, and that they were rivals of the Satan Disciples. Torres stated that in the evening of October 12, 1989, he was standing on a street comer with Javier Ortega, when defendant, whom he knew as “Benny,” rode past in the back of a blue pickup track and shot him. Defendant shot three more times, hitting Javier Ortega in the head. Ortega died as a result of the gunshot wound.

Maribel Mujica testified that she was in her third-floor apartment at 1727 West 18th Street, when she heard a shot, ran to the front window that overlooks 18th Street and saw a man standing in the back of a pickup track shooting at Javier Ortega. She identified the man as William Norton, also known as “Benny.” The father of Mujica’s children is Fidel Torres. Mujica testified that Torres is a member of the street gang known as the Bishops. Mujica stated that she had seen that same pickup track before with members of the Satan Disciples street gang in it.

Officer Tarka, of the Gang Crimes West Unit, testified that the area of the shooting was frequented by gangs known as the Latin Counts, the Bishops, and the Satan Disciples.

Defendant’s friend, John Brown, testified that he spoke to defendant at 9:30 p.m. John went over to defendant’s house at 10:30 p.m. and defendant did not leave in the half hour that John was present.

Manuel Brown testified that defendant never left the apartment from 9 p.m. to 12 a.m. on the night of the shooting. According to Manuel, defendant only talked to his girl friend on the phone. He also testified that John Brown came over at 10:30 p.m.

Defendant testified that he was a member of the Satan Disciples. He testified that he was home all night, helping Manuel pack, on the evening of October 12, 1989. Defendant stated that he knew Fidel Torres, that Torres was a member of the Bishops and that defendant and Torres disliked each other. Defendant stated that the only calls he received that evening were from his girl friend, mother and Manuel Brown’s mother.

Defendant first contends that the trial court improperly allowed the jury to hear testimony that gangs frequented the area of the shooting and that defendant was a member of the Satan Disciples. We disagree.

Courts have recognized that there is often a strong prejudice against street gangs, particularly in metropolitan areas. (People v. Parrott (1976), 40 Ill. App. 3d 328, 352 N.E.2d 299.) Despite this fact, evidence concerning a defendant’s gang affiliation is admissible if it is relevant to the charges filed against the defendant. (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840.) If defendant’s gang affiliation is relevant, it is admissible even if it is prejudicial to the accused since in such a case the probative value of the evidence outweighs the prejudicial impact. (People v. Buchanan (1991), 211 Ill. App. 3d 305, 570 N.E.2d 344.) Evidence of a defendant’s gang membership is relevant and admissible to provide a motive for an otherwise inexplicable act. People v. Smith (1990), 141 Ill. 2d 40, 565 N.E.2d 900.

The testimony at trial revealed that Fidel Torres and Javier Ortega were members of the Bishops and that the Bishops were rivals of the Satan Disciples. The testimony further revealed that defendant was a member of the Satan Disciples. In addition, Officer Tarka testified that the area of the shooting was frequented by the Bishops and their rival gang the Satan Disciples and that drive-by shootings are prevalent in that community. This testimony was clearly relevant to establish a motive for the shooting.

Defendant next maintains that the prosecutor committed reversible error by failing to prove up the impeachment of defendant and an alibi witness with prior inconsistent statements. When a prosecutor insinuates the existence of a prior inconsistent statement by the witness and the witness either denies or is unable to recall making the statement, the prosecutor must produce evidence that the prior inconsistent statement was made. (People v. Morris (1979), 79 Ill. App. 3d 318, 398 N.E.2d 38.) Although the failure to follow through with proof of a prior inconsistent statement is error, such error may be harmless where there is other positive evidence of defendant’s guilt. People v. Allan (1992), 231 Ill. App. 3d 447, 595 N.E.2d 1317.

The record supports defendant’s argument that the prosecutor did not complete the impeachment of defendant or his alibi witness, and then in closing argument briefly reiterated the substance of the impeached evidence. Nonetheless, we find these errors harmless. The jury was instructed that statements made during closing argument are not evidence and any statement or argument made by an attorney which is not based on evidence should be disregarded. (See People v. Hrowbowski (1991), 216 Ill. App. 3d 711, 575 N.E.2d 1386.) Furthermore, there was overwhelming evidence of defendant's guilt.

Defendant next contends that the trial court erred in not allowing defense counsel to present hearsay evidence of an absent recanting eyewitness to determine the substance and materiality of her new testimony.

Defense counsel made a motion for a new trial, contending that Maribel Mujica confided to him after trial that she had been pressured by the police to testify falsely at trial. However, Mujica never appeared in court to testify to such. Instead, defense counsel sought to have his secretary testify using her notes taken during the interview with Mujica. Defendant claims that the trial court erred in not hearing the hearsay testimony of defense counsel’s secretary before denying defendant’s motion for a new trial.

A motion for a new trial based on newly discovered evidence is left to the sound discretion of the trial court and will not be disturbed on review absent an abuse of discretion. (People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795.) Here, the trial court did not abuse its discretion in denying defendant’s motion for a new trial. The recanting witness failed to appear at any of the scheduled court dates, and the trial court certainly did not abuse its discretion in refusing to admit the hearsay testimony of defense counsel’s secretary about the content of Maribel Mujica’s recantation statements.

Furthermore, while defendant claims that defense counsel was ineffective in failing to subpoena Mujica, there is no indication that had Mujica been subpoenaed, the trial court would have granted a new trial. Recantation testimony is ordinarily not a sufficient basis for a new trial. (People v. Bushey (1988), 170 Ill. App. 3d 285, 524 N.E.2d 738.) Moreover, it may have been defense counsel’s trial strategy not to subpoena Mujica. Defense counsel may have been concerned that if he subpoenaed Mujica, she would have been uncooperative with him and possibly not give her recanted testimony.

Lastly, we find no merit to defendant’s final contention that his 40-year sentence is excessive in light of defendant’s age, education, employment and rehabilitative potential. The imposition of a sentence is a matter of judicial discretion and, absent an abuse of discretion, the sentence of a trial court may not be altered upon review. (People v. Stewart (1989), 186 Ill. App. 3d 833, 542 N.E.2d 915.) Defendant was convicted of first degree murder, which provides a sentence of not less than 20 years and not more than 60 years. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—1(a)(1)(a).) While the trial court did in fact consider defendant’s age and background as mitigating factors, the trial court also considered the aggravating factors of the nature of the crime and the fact that as of the date of sentencing, defendant was on probation for possession of a stolen motor vehicle. The trial court weighed these factors and came up with a sentence within the statutory range which was not an abuse of discretion.

Accordingly, based on the reasons set forth above, we affirm.

Affirmed.

GORDON and COUSINS, JJ., concur.