author: PRESIDING JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERVIN LEWIS, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 86—1955
    Opinion filed October 23, 1992.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Following a jury trial, defendant Ervin Lewis was found guilty of two counts of murder and sentenced to natural life imprisonment. Defendant appeals, contending that he received ineffective assistance of counsel and that he was improperly sentenced on four counts of murder where there were only two deaths.

Clara Dodds, defendant’s sister, testified that in 1985 she lived in a third-floor apartment at 6945 North Ashland Avenue, Chicago, Illinois. Venus Handley lived in a second-floor apartment in the same building. Clara testified that in the evening of April 18, 1985, defendant and Lovie Johnson arrived at the building and began arguing with Venus. Venus told defendant to get away from her door and then slammed the door and locked it. Approximately 10 minutes later, a police officer arrived. Venus told the officer that it was she who called the police and the officer went with Venus to her apartment.

Clara testified that defendant and Lovie entered Clara’s apartment an hour-and-a half later and defendant immediately went into the washroom and asked Clara for a pair of pants. Clara said that defendant had a butcher knife. Clara went into the bathroom and saw defendant’s pants in a bucket she used to wash her clothes. Defendant told her that if she said anything he “would kill all the motherf- — s.”

Clara testified that on April 19, 1985, she entered Venus’ apartment with defendant and Lovie, and saw Venus’ body. Defendant told Clara to take Venus’ turntable and tape recorder and Clara complied.

Clara further testified that on April 20, 1985, she was at home with her husband, Buddha Cookbey, defendant and Lovie when her brother-in-law, Nimrod, came by the apartment. Clara testified that defendant asked Nimrod to take a walk with him, but when the men reached the kitchen door, defendant began stabbing Nimrod, kicked Nimrod down the stairs and carried his body into Venus’ apartment. Defendant then mopped up the blood from the kitchen floor.

Buddha Cookbey next testified that when he woke up on April 20, 1985, he saw defendant, Lovie and Clara mopping something up from the kitchen floor. Buddha testified that later that day, he went to his grandmother-in-law’s house with defendant. Once there, defendant started hitting Buddha. Buddha was bleeding heavily and ran to the doctor. The police were called and defendant was arrested.

Lovie Johnson testified next that at the time of defendant’s trial, she was an inmate at the Dwight Correctional Facility, serving two concurrent four-year sentences for burglary. She also admitted that on four previous occasions, she had been convicted of misdemeanor theft. Lovie testified that on April 12, 1985, she went with defendant to Nimrod’s apartment. Defendant and Nimrod left the apartment for a few minutes and when Nimrod returned, he told Lovie to go downstairs and get defendant because defendant was involved in a fight. Lovie found defendant lying on the floor and the building manager told them to get out of the building. The manager then hit Lovie with a stick. Lovie stated that the next thing she remembered was lying in Nimrod’s bed, and Nimrod was putting a towel over her eyes. Lovie spent two days in the hospital. Lovie later discussed the incident with defendant and defendant said, “I’m going to f— [Nimrod] up about that.”

Lovie stated that on April 18, 1985, she observed defendant arguing with Venus. Defendant went upstairs when the police arrived but returned to Venus’ apartment when the police left. Defendant and Lovie entered Venus’ apartment and defendant told Lovie to look out the window for the police. Defendant stabbed Venus repeatedly and then ordered Lovie to help him drag Venus’ body into the bedroom, put Venus in bed, and throw some clothes over her. Lovie complied. Defendant and Lovie then went to Clara’s apartment and defendant told Lovie not to tell anybody what had just happened. Lovie, nonetheless, told Clara that defendant had killed Venus. Soon thereafter, defendant told Clara and Lovie that “he killed the bitch.”

Lovie testified that on April 19, 1985, she went with defendant and Clara to Venus’ apartment. Defendant took Venus’ stereo and passed it to Lovie, and Lovie passed it to Clara, who put it in her closet.

Lovie testified that on April 20, 1985, she was in Clara’s apartment with defendant, when defendant asked Nimrod to accompany him to the kitchen. Lovie saw defendant stab Nimrod repeatedly, kick Nimrod down the stairs and drag him into Venus’ bedroom. Lovie then complied with defendant’s order that Lovie throw some clothes over Nimrod’s body. Later that day, Lovie observed defendant hit Buddha in the head with an ashtray.

Defendant contends that he was denied his constitutional right to effective assistance of counsel where trial counsel: (1) failed to ask the court to instruct the jury on accomplice witness testimony; (2) based his defense on an exculpatory pretrial statement by defendant that was not introduced at trial; (3) failed to move for a severance; and (4) pursued a defense theory which left the jury with no choice but to convict defendant. In order to succeed in a claim of ineffective assistance of counsel, defendant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Our review of the record here indeed reveals that defense counsel’s performance was deficient and that certainly the cumulative effect of counsel’s deficiencies denied defendant a fair trial.

Defendant first alleges that trial counsel was ineffective because he failed to ask the trial court to submit to the jury an instruction on accomplice witness testimony. The accomplice witness instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981)) states:

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”

The accomplice "witness instruction is to apprise the jury that the testimony of an accomplice is fraught with serious weakness such as the promise of leniency or immunity and malice toward the accused. (People v. Wilson (1977), 66 Ill. 2d 346, 362 N.E.2d 291.) The test for determining whether a witness is an accomplice for the purposes of the accomplice witness instruction is whether the witness could have been indicted for the offense in question either as a principal or under a theory of accountability. (People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31.) If this test is satisfied, the defendant is entitled to an accomplice instruction even if the witness denies involvement in the crime. People v. Howard (1991), 209 Ill. App. 3d 159, 568 N.E.2d 56.

Applying these principles to the evidence presented here, we find sufficient evidence to establish that Lovie Johnson was an accomplice to the murder of Venus Handley. Lovie Johnson admitted that she observed the murder of Venus. Lovie accompanied defendant to Venus’ apartment, remained there after being apprised of defendant’s criminal intent, watched for police, observed defendant repeatedly stab Venus and did not attempt to prevent defendant from stabbing Venus. Lovie also helped hide Venus’ body and take some of Venus’ property. Although Lovie testified that defendant told her not to tell anyone about the murder, Lovie did not testify that this admonition was accompanied by any threat of violence against her and Lovie never testified that she feared defendant. Lovie did not go to the police until after defendant’s arrest when she herself was being sought by authorities. These circumstances clearly provide probable cause to indict Lovie for Venus’ murder. See People v. Montes (1989), 192 Ill. App. 3d 874, 549 N.E.2d 700 (acting as a lookout is an act aiding and abetting the commission of an offense); People v. Carreon (1987), 162 Ill. App. 3d 990, 516 N.E.2d 372) (presence at scene, sharing in proceeds and the failure to call the police are significant factors in determining that an accomplice instruction was necessary); People v. Grabbe (1986), 148 Ill. App. 3d 678, 499 N.E.2d 499 (after the fact aid is indicative of alleged accomplice’s intent prior to the offense).

Trial counsel’s failure to tender an accomplice witness instruction was certainly not due to trial strategy and would not have been inconsistent with any theory of defense since defense counsel contended throughout trial that Lovie participated in the murders and therefore was not a credible witness. We nonetheless find that while defense counsel should have tendered the accomplice witness instruction, this error, alone, would not require reversal since the jury was instructed that in determining the credibility of witnesses, they should consider any interest, bias or prejudice the witness might have.

Defendant’s next argument is that his trial counsel was ineffective in basing his defense on evidence which he could not and did not produce to the jury. In his opening statement, defense counsel told the jury that defendant gave a pretrial statement in which defendant admitted stabbing Nimrod Cookbey but claimed that Lovie Johnson also stabbed Nimrod. Trial counsel then told the jury that it would have to determine whether it was defendant or Lovie who produced the fatal blow that killed Nimrod. Trial counsel also noted that in that statement, defendant denied stabbing Venus Handley. The State never offered defendant’s pretrial statement into evidence and when defense counsel attempted to introduce the statement, the trial court ruled it inadmissible. Nevertheless, in closing argument, trial counsel again referred to defendant’s pretrial statement and the court sustained the prosecution’s objection.

It is well settled that a defendant’s post-arrest, custodial statement offered in his own favor is not an admission and is subject to objection on hearsay grounds. (People v. Hudson (1990), 198 Ill. App. 3d 915, 556 N.E.2d 640; People v. Berry (1988), 172 Ill. App. 3d 256, 526 N.E.2d 502.) Not disputing that defense counsel was incompetent in promising the jury that he would introduce defendant’s pretrial statement into evidence, the State argues that defendant was not prejudiced by trial counsel’s deficient performance. We are not persuaded by the State’s argument since the promise to produce such significant exonerating evidence and the failure to fulfill such promise is highly prejudicial. People v. Ortiz (1992), 224 Ill. App. 3d 1065, 586 N.E.2d 1384 (where defense counsel suggested to the jury during opening statements that there was another suspect in the case other than defendant but defense counsel never introduced such evidence, defense counsel’s conduct was deficient and prejudiced the defendant); Anderson v. Butler (1st Cir. 1988), 858 F.2d 16 (where defense counsel stated in his opening argument that he would call a psychiatrist and a psychologist who would testify in support of defendant’s claim of mental impairment but counsel failed to present such evidence, the court found that counsel’s failure to produce the promised testimony was prejudicial and constituted ineffective assistance of counsel).

Defendant’s next allegation of ineffective assistance of counsel involves trial counsel’s failure to move to sever the two charges of murder. Joinder of prosecutions is permitted when the charges are based on the same act or on two or more acts which are part of the same basic transaction. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 7.) Factors to consider in determining whether offenses are part of the same transaction include: their proximity in time and location, the identity of evidence to be presented, similarities in the acts, and whether there was a common method of operation by the perpetrator. People v. Stevens (1989), 188 Ill. App. 3d 865, 544 N.E.2d 1208.

Our review of the record here leaves no doubt that defense counsel should have filed a motion to sever the two murder charges. According to the evidence, there were different motives for the murders of Venus and Nimrod, and the murders occurred at different locations and on different days. That the victims’ bodies were discovered in the same location, and there were common witnesses to the two murders, does not lead to the conclusion that the murders were part of the same comprehensive transaction. See People v. Jeffries (1976), 35 Ill. App. 3d 991, 343 N.E.2d 63; People v. Bricker (1974), 23 Ill. App. 3d 394, 319 N.E.2d 255.

We can conceive of no legitimate trial strategy in defense of counsel’s failure to move for a severance. Instead, we are struck by the distinct disadvantage defendant suffered from the joint trial. Defendant's trial counsel raised markedly different defenses to the two murder charges, denying defendant had any involvement in Venus’ murder while admitting that defendant stabbed Nimrod, but claiming that Lovie struck the fatal blow, and that the murder was justified. Certainly, counsel’s task of convincing the jury of each of these theories was made more difficult by having to simultaneously argue that a completely distinct theory applied to the other murder. Also, we cannot underestimate the impact the cumulative evidence regarding the two murders must have had on the jury. (People v. Melgoza (1992), 231 Ill. App. 3d 510, 595 N.E.2d 1261, is distinguishable since that was a bench trial.) Accordingly, there is no doubt that defendant was prejudiced by defense counsel’s failure to move to sever the charges.

Defendant’s last allegation of ineffectiveness on the part of his trial counsel concerns defense counsel’s pursuing a theory of defense which left the jury no choice but to convict defendant of murdering Nimrod Cookbey. In his opening statement, counsel told the jurors that defendant’s pretrial statement indicated that Lovie Johnson had also stabbed Cookbey and that the jurors would have to decide whether it was Johnson or Lewis who inflicted the fatal blow. As we previously noted, defendant’s pretrial statement was inadmissible at trial. Furthermore, even if defendant’s statement had been admitted at trial, this theory of defense would have failed since one need not inflict the fatal wound in order to be guilty of murder. See People v. Watts (1988), 170 Ill. App. 3d 815, 525 N.E.2d 233.

In closing argument, defense counsel switched to an equally unsuccessful theory of defense when he told the jury: “You got an easy job on Nimrod. If it was justified, you turn him loose, if it wasn’t, you convict him.” The problem with this theory of defense was that the jury was not given an instruction that would have permitted them to find defendant guilty of a lesser offense based on justification since they were instructed on neither self-defense nor on voluntary manslaughter. (See United States ex rel. Barnard v. Lane (7th Cir. 1987), 819 F.2d 798 (in light of defendant’s testimony, and the fact that the jury was not instructed on justification or voluntary manslaughter, the jury had no choice but to convict defendant of murder).) Defense counsel never asked for an instruction on self-defense or voluntary manslaughter and certainly the evidence provided no basis for a finding of either self-defense or voluntary manslaughter. Accordingly, defendant was prejudiced by defense counsel’s deficient performance, which left the jury with no choice but to find defendant guilty of murder. See People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290; People v. Torres (1991), 209 Ill. App. 3d 314, 568 N.E.2d 157.

Lastly, we note that since only two deaths occurred, defendant may be convicted of only two counts of murder. People v. Mack (1984), 105 Ill. 2d 103, 473 N.E.2d 880.

Accordingly, for the reasons set forth above, defendant’s murder convictions are reversed and this case is remanded for a new trial.

Reversed and remanded.

LORENZ and GORDON, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREIMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRES MALDONADO, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 88—3151
    Opinion filed December 30, 1992.
    Rehearings denied February 5, 1993, and February 18, 1993.

      Rita A. Fry, Public Defender, of Chicago (Beth I. Solomon and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Andrea Bonin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant, Andres Maldonado, was convicted of first degree murder for the shooting death of 18-year-old Elizabeth Cooley and was sentenced to 40 years’ imprisonment.

On appeal, defendant raises five issues as error: (1) the admission of testimony and argument regarding defendant’s gang affiliation; (2) the admission of testimony regarding a rifle, shells, and shoulder holster found in a gym bag which also contained the gun that apparently killed Elizabeth Cooley and allowing such items to be published to the jury; (3) the refusal to give defendant’s tendered instruction on involuntary manslaughter; (4) certain comments made by the State during closing arguments;- and (5) the imposition of the maximum 40-year term of imprisonment.

For the reasons which follow, we affirm defendant’s conviction but reduce his sentence to a 20-year term of imprisonment.

The occurrence witnesses who testified at trial recounted substantially the same sequence of events which resulted in the fatal shooting of Elizabeth Cooley. Defendant did not testify.

About 7 or 8 p.m. on the evening of December 8, 1986, five individuals were riding in a Chevy station wagon: Stanley Cherry (a back seat passenger), Allen Oliver (a back seat passenger), Elizabeth Cooley (the victim, who was sleeping in the middle of the back seat), Norman Abrams (the front seat passenger), and Lamonte Haywood (the driver).

Stanley Cherry testified that as they drove down the street, they encountered Efrain Nunez standing in the street. Lamonte Haywood, the driver of the car, honked his horn and ordered Efrain to move. Efrain then hit the roof of the car with his hand. Stanley got out of the car and asked Efrain Nunez why he was hitting the car. Stanley testified that Efrain “went to hollering it’s some Latin Kings or something.” Allen Oliver also exited the car and joined Stanley in the argument against Efrain and two other men who, according to Stanley’s testimony, “showed up from nowhere” until “the street was full of what they call Latin Kings or whatever.” The two other men were later identified by Efrain Nunez as his brother Gabriel Nunez and Tony Gonzalez.

Efrain Nunez testified that the station wagon driven by Haywood almost hit him as he was crossing the street; angered, he banged his fist on the roof of the car. Then “two colored guys got out of the car” and exchanged epithets with him.

Another car then appeared at the scene, carrying three men identified as defendant, Enrique Rivera, and Felix Lopez, who joined in the altercation on Efrain’s behalf. Stanley estimated that the group which gathered against him and Allen Oliver numbered about 10 and “they was all hollering Latin Kings and kill them niggers.”

Enrique Rivera kicked out the window on the driver’s side of the station wagon. Defendant walked up to Stanley Cherry with a pistol, shoved the gun in Stanley’s face, and said “nigger, I kill you.” Stanley backed up a little, and defendant fired a shot toward the station wagon. Stanley and Allen began to run down the sidewalk when Stanley heard defendant say “kill them niggers.” Haywood began to drive away, and defendant then fired more gunshots at the station wagon. Three to seven gunshots were heard by the various occurrence witnesses. According to the witnesses’ testimony, no one except defendant had a gun.

At the corner, Haywood stopped for a stoplight and Stanley and Allen entered the car. After noticing that Elizabeth was bleeding, they drove to Walther Memorial Hospital, where she later died.

After the shooting, Efrain and his group (brother Gabriel, Tony Gonzalez, Felix Lopez, and defendant) went to Efrain’s apartment, where Efrain had a rifle and ammunition stored in a blue gym bag. Efrain gave Felix Lopez the gym bag with those items included. Also at Efrain’s apartment, defendant gave his gun to Felix Lopez, who in turn put it into the blue gym bag. Thereafter, the blue gym bag containing defendant’s gun and Efrain’s rifle and ammunition was passed from Felix to his sister Maria Lopez to Gabriel Nunez to Amelia Herrera. The police eventually recovered the blue gym bag and its contents at the residence of Amelia Herrera.

The trial court denied defendant’s request for an involuntary manslaughter instruction. Defendant was found guilty of first degree murder and sentenced to 40 years in prison.

On appeal, defendant asserts that some, but not all, testimony and argument regarding the Latin Kings street gang was improperly admitted and that such evidence was irrelevant to the issues at trial and was highly prejudicial. Defendant cites four references to the Latin Kings street gang which he believes improper.

First, defendant contests a remark made by the State in its opening statement which identified defendant as a member of the Latin Kings gang.

According to the record, in recounting the events leading to the shooting, the State commented that during the initial confrontation, another car pulled up and

“three people got out of that car, a man by the name of Enrique Rivera, a man by the name of Felix Lopez and one other man. That man [referring to defendant] is known on the streets as Polocko, he’s a member of the Latin Kings street gang.”

Defense counsel’s objection at this point was overruled.

The second gang-related reference to which defendant objects occurred during the State’s direct examination of Efrain Nunez where testimony was elicited that although the witness did not know defendant personally, he knew him from “the streets” because they both belonged to the Latin Kings.

The State contends that the reference to defendant’s gang affiliation in the State’s opening remarks and in the direct examination of Efrain Nunez was relevant to the identification of defendant, to placing him at the scene, and to provide a motive as to why he would stop to join Efrain Nunez during the confrontation.

Gang-related evidence may be admitted if it is otherwise relevant and admissible. People v. Gonzalez (1991), 142 Ill. 2d 481, 489, 568 N.E.2d 864.

Evidence of gang membership is relevant if it tends to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (People v. Lucas (1992), 151 Ill. 2d 461, 480; Gonzalez, 142 Ill. 2d at 487-88.) However, even relevant evidence may be excluded where its prejudicial impact substantially outweighs its probative value. People v. Eyler (1989), 133 Ill. 2d 173, 218, 549 N.E.2d 268.

Evidence of gang membership is also admissible to provide a motive for an otherwise inexplicable act where there is sufficient proof that such membership is related to the crime charged. (People v. Smith (1990), 141 Ill. 2d 40, 58, 565 N.E.2d 900.) However, to be deemed competent, such evidence must, at least to a slight degree, tend to establish the existence of the motive relied upon or alleged and it must be shown that the defendant knew of those facts. People v. Easley (1992), 148 Ill. 2d 281, 326, 592 N.E.2d 1036, quoting Smith, 141 Ill. 2d at 56.

In the present case, we find that the identification of defendant as a member of the Latin Kings by the State in its opening statement and by Efrain Nunez in his testimony was improper.

The State failed to link defendant’s status as a gang member to the offense charged. In fact, the exact opposite conclusion was established when Efrain Nunez testified that the shooting was not gang related.

Courts have consistently acknowledged that prejudice automatically attaches to the disclosure of an accused’s affiliation with a street gang. Notwithstanding the prejudice, a defendant cannot insulate the jury from his gang membership if such status is relevant to the determination of the case. Gonzalez, 142 Ill. 2d at 489, quoting People v. Rivera (1986), 145 Ill. App. 3d 609, 618, 495 N.E.2d 1088.

To be admissible, sufficient proof must exist to show that membership is related to the crime charged, e.g., to show common design or purpose. (People v. Hairston (1970), 46 Ill. 2d 348, 372, 263 N.E.2d 840.) The purpose of this requirement is to insure that the accused is not convicted merely because of his membership in an organization that is unpopular. Hairston, 46 Ill. 2d at 372.

We find further support for our holding in two recent supreme court cases which concerned the murder of a superintendent at the Pontiac Correctional Center by two inmates, Roosevelt Lucas and Ike Easley. (Lucas, 151 Ill. 2d 461; Easley, 148 Ill. 2d 281, 592 N.E.2d 1036.) The facts provided in these two cases establish that defendant Easley first stabbed the victim and defendant Lucas then proceeded to beat the victim about his head with a piece of pipe. Both Lucas and Easley were members of the Black Gangster Disciples gang. In their separate trials, the State presented certain evidence of their affiliation with the gang to support its theory that Lucas and Easley murdered the victim in retaliation for the death of another inmate who was a member of the Black Gangster Disciples.

In Easley, the supreme court held that the evidence relating to gangs was improperly admitted because it was irrelevant and highly prejudicial. (Easley, 148 Ill. 2d at 324-30.) In contrast, in Lucas, the supreme court found that the gang-related evidence was admissible because defendant Lucas, unlike defendant Easley, admitted he was a member of the gang and testimony established that defendant Lucas was aware of the plan to retaliate against the prison administration. (Lucas, 151 Ill. 2d at 480.) The supreme court distinguished Easley on the grounds that the State had there failed to demonstrate that defendant Easley had participated in and had knowledge of the gang’s plan to kill a prison officer; that the only evidence which identified Easley as a gang member came from the opinion testimony of prison officers; and that the State failed to show that Easley had been present at any gang meetings. Lucas, 151 Ill. 2d at 479.

Similarly, in the present case, the only evidence that defendant was a gang member came from the testimony of Efrain Nunez. However, where gang-related evidence has been properly admitted, the factual circumstances of the cases revealed substantial gang-induced involvement in the crime coupled with the accused’s knowledge of those facts. See Lucas, 151 Ill. 2d 461; People v. Carson (1992), 238 Ill. App. 3d 457; Rivera, 145 Ill. App. 3d 609, 495 N.E.2d 1088.

Although we find that the admission of testimony and argument regarding defendant’s membership in a gang was improper, such admission does not warrant reversal because there was little dispute as to the facts and competent evidence established defendant’s guilt beyond a reasonable doubt. Easley, 148 Ill. 2d at 330; People v. Arman (1989), 131 Ill. 2d 115, 124, 545 N.E.2d 658; People v. Dukes (1986), 146 Ill. App. 3d 790, 798, 497 N.E.2d 351.

Moreover, the record contains numerous gang references which, by defendant’s own admission on appeal, were not objectionable and, in fact, were often elicited by defense counsel. For example, Stanley Cherry testified that Efrain shouted “Latin Kings” when he slammed his fist on the car and that the street then suddenly became “full of what they call Latin Kings.” In addition, Robert DiTusa testified that he worked as a “Gang Crimes Specialist” with the police department, that his duties were to “investigate and monitor gang crime activity,” and that he, together with two other gang specialists, received the assignment of investigating the shooting of Elizabeth Cooley. DiTusa’s testimony clearly implied that the victim’s death was originally thought to be a gang-related matter due to the participants involved. We do not believe that a jury myopically views such information.

The third gang-related reference to which defendant objects occurred during the State’s redirect examination of Efrain Nunez. After speculation raised on cross-examination as to why the witness was not initially forthcoming, Efrain testified on redirect that he did not initially tell the police about the incident because he was afraid that the Latin Kings would harm him or his family but later changed his mind because the incident “was not gang-related.”

As to this testimony, the State maintains that it was proper to allow Efrain to explain why he delayed talking to the police and to rebut the inference created by defense counsel during cross-examination that Efrain had not come forward to the police sooner because he had something to hide or was lying. Additionally, the State argues that this line of questioning bears on Efrain’s credibility and credibility is always relevant. (Rivera, 145 Ill. App. 3d at 622.) Further, the State argues that the jury clearly understood that the case was not gang related because Efrain so testified.

We find that the trial court did not err in admitting Efrain’s testimony during redirect examination that he initially hesitated to cooperate with the police out of fear for his and his family’s safety. Testimony which merely explains why a witness was initially reluctant to speak or provide information to the police is generally permissible. People v. Felder (1992), 224 Ill. App. 3d 744, 757, 586 N.E.2d 729.

The fourth instance of gang-related remarks challenged by defendant occurred during the State’s closing argument. However, defendant has waived this argument for failure to specifically raise the issue in a written post-trial motion. The Illinois Supreme Court has repeatedly held and recently reaffirmed that a defendant’s failure to allege the specific ground for review in a post-trial motion operates as a waiver of the right to raise the issue on review. Lucas, 151 Ill. 2d at 481; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Defendant next asserts that the admission and publication of certain items (a rifle, a shoulder holster, clips and ammunition) found in the blue gym bag were error because this evidence was irrelevant and prejudicial. Defendant argues that the items had no connection to defendant, the police investigation, defendant’s arrest, or the death of the victim.

The State responds that the rifle was properly admitted because it was linked to the crime, having been found in the same blue gym bag in which the murder weapon was hidden, and that the items were relevant because they corroborated the testimony of Efrain Nunez, Felix Lopez, Gabriel Nunez and Detective DiTusa.

A weapon generally may not be admitted into evidence unless there is proof to connect it to the defendant and the crime or unless the defendant possessed the weapon when arrested for the crime. (People v. Howard (1991), 209 Ill. App. 3d 159, 178, 568 N.E.2d 56 (a revolver was held inadmissible because it was not used in the murder charged and was not confiscated from the defendant when he was arrested on the murder charge).) Even a weapon found in a defendant’s possession when arrested may be admitted only if it bears a connection with the charged offense. (People v. Jackson (1990), 195 Ill. App. 3d 104, 112, 551 N.E.2d 1025.) A sufficient nexus exists where the weapon is suitable for the crime charged although it need not have actually been used in committing the crime. People v. Free (1983), 94 Ill. 2d 378, 415-16, 447 N.E.2d 218; Jackson, 195 Ill. App. 3d at 112.

No evidence in the present case even suggests that the other contents of the blue gym bag were connected to the murder or that the rifle was similar to the handgun used in the murder. For this reason, the State’s reliance on People v. McClinton (1978), 59 Ill. App. 3d 168, 375 N.E.2d 1342, is misplaced. In McClinton, the court held that a rifle, similar to the shotgun used in the crime, could have been mistaken for a shotgun and thus was suitable for the crime charged.

Here, however, the rifle and its accessories were not linked to defendant, the shooting of the victim, or to the crime scene. Instead, the testimony revealed that defendant fired a handgun as identified by the occurrence witnesses and that the rifle and its accessories were in Efrain Nunez’s house at the time of the incident.

Although it was error to admit the rifle and its accessories, in light of the overwhelming evidence against defendant, we believe that the error was harmless because his conviction would stand even absent the improper admission of the rifle and its accessories. Howard, 209 Ill. App. 3d at 180 (the improper introduction of a revolver did not constitute reversible error); Jackson, 195 Ill. App. 3d at 113-14 (the erroneous admission of a gun into evidence was held harmless).

Defendant relies solely on People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528, to further his argument that the admission of these items constitutes reversible error. However, we find Wade distinguishable.

In Wade, the fifth district found that testimony elicited from a police officer regarding a gun found on the defendant’s person when he was arrested was extremely prejudicial and objectionable as evidence of other crimes admitted without justification. The gun was fully loaded and concealed in the defendant’s clothing at the time of his arrest with 12 other rounds of ammunition for the gun in his pocket. The State stipulated that this gun was not the murder weapon and the murder weapon was never produced at trial.

This court has previously disagreed with the fifth district’s stance in Wade by holding that guns or other physical items seized at the defendant’s arrest are admissible as relevant to the details of arrest. People v. Sui Wing Eng (1985), 138 Ill. App. 3d 281, 287-89, 485 N.E.2d 1222.

Unlike Wade, the rifle and other contested items in the present case were not in defendant’s possession when he was arrested. Instead, the evidence revealed that defendant was not even aware of the existence of these items. The jury was aware of the trial testimony that the rifle and other contested items belonged to Efrain Nunez and were located in Efrain’s residence during the commission of the crime. Felix Lopez’s testimony established that he put defendant’s gun into the blue gym bag, which already contained Efrain’s rifle and ammunition. Moreover, the occurrence witnesses identified defendant’s handgun as the weapon likely used in the murder. Given the evidence in this case, we believe that defendant could not have been unduly prejudiced by the admission of Efrain’s rifle and shells.

Defendant next argues that the failure to instruct the jury on the offense of involuntary manslaughter constitutes reversible error because there was sufficient evidence to indicate that he acted recklessly in firing at the station wagon since the street was dark, it was not possible to observe anyone sitting inside the station wagon about 40 feet away, and by discharging the handgun he only intended to scare Stanley Cherry and Allen Oliver.

The State contends that the involuntary manslaughter instruction was properly refused because defendant knew the car was occupied when he fired the second and third shots since the station wagon was moving at that time, the evidence indicated the victim was in a sitting position when shot, and the fatal shots could not have been intended to scare anyone away because the two men (Stanley Cherry and Allen Oliver) were already running away. We agree.

Unless some credible evidence in the record exists which would reduce murder to manslaughter, defendant is not entitled to have an involuntary manslaughter instruction given to the jury (People v. Ward (1984), 101 Ill. 2d 443, 451, 463 N.E.2d 696; People v. Austin (1990), 207 Ill. App. 3d 896, 899, 566 N.E.2d 492; People v. Robinson (1987), 163 Ill. App. 3d 754, 778, 516 N.E.2d 1292; People v. Santiago (1982), 108 Ill. App. 3d 787, 802, 439 N.E.2d 984), although only the “slightest amount of evidence in the record” which justifies the underlying theory is sufficient to warrant the instruction (People v. Garcia (1988), 169 Ill. App. 3d 618, 620, 523 N.E.2d 992).

The offenses of murder and involuntary manslaughter are distinguished only in terms of the mental state required. The Criminal Code of 1961 defines “murder” as follows:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1.)

The statute distinguishes the offense of involuntary manslaughter:

“(a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts *** are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.” (Ill. Rev. Stat. 1985, ch. 38, par. 9-3(a).)

Accordingly, murder requires the intent to kill or do great bodily harm or knowledge that the acts create a strong probability of such result while involuntary manslaughter requires only reckless conduct which causes death. Austin, 207 Ill. App. 3d at 898-99.

The Criminal Code of 1961 further defines “recklessness”:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6.

Intentionally and deliberately aiming and firing a gun is not mere recklessness. Robinson, 163 Ill. App. 3d at 779, citing People v. DeMumbree (1981), 98 Ill. App. 3d 22, 25, 424 N.E.2d 73 (the evidence showed that the defendant had intentionally fired three shots in the directions of various people); People v. Burnette (1981), 97 Ill. App. 3d 1015, 1019-20, 423 N.E.2d 1193 (“[i]t cannot be concluded that the act of deliberately firing into a crowd is merely reckless”).

A defendant’s assertion that he did not intend to kill anyone is not a sufficient basis to warrant an involuntary manslaughter instruction where the defendant intended to fire a gun, pointed it, and shot in the victim’s general direction. (People v. Cannon (1971), 49 Ill. 2d 162, 273 N.E.2d 829.) These acts, “done voluntarily and wilfully, [are] sufficient evidence of the intent requisite to constitute the offense of murder.” Cannon, 49 Ill. 2d at 166.

Defendant relies on the Santiago case, which involved an ongoing fight between rival gangs when the defendant fired three shots into an empty car in an attempt to ignite the gas tank, creating a diversion in order to protect his friends who were engaged in the fight. The Santiago court specifically found that there was no evidence that anyone was in or near the car when the defendant fired and the likelihood of injury or death was more remote since the car was unoccupied. Santiago, 108 Ill. App. 3d at 803.

In contrast, the testimony in the present case established that after defendant fired the first nonfatal shot, the station wagon began to move away, clearly indicating that it was occupied. Even if we accept defendant’s contention that he first fired to scare Stanley Cherry and Allen Oliver, his purpose was served since Stanley Cherry and Allen Oliver immediately began to run away. The subsequent shots, one of which fatally wounded the victim, were fired into a moving vehicle.

On the present record we conclude that the trial court did not err in refusing to instruct the jury on involuntary manslaughter.

Defendant next asserts that the cumulative effect of certain allegedly improper comments made by the State during closing and rebuttal arguments warrants reversal. Defendant acknowledges that some remarks of which he now complains were not contained in his motion for a new trial, but contends that they should be addressed under the plain error rule.

In response, the State contends that the disputed remarks which were not properly preserved in defendant’s motion for a new trial have been waived and that all contested comments were proper.

To preserve an issue for appeal, an objection must be made at trial and raised in a post-trial motion. (People v. Turner (1989), 128 Ill. 2d 540, 555, 539 N.E.2d 1196.) Our examination of the record reveals that several remarks contested by defendant in his appellate brief were not properly preserved, and thus, we find these arguments are waived. Accordingly, we address only those comments which are now properly before this court.

To constitute reversible error, the remarks by the prosecutor in closing argument must be such that, without their having been made, the jury might have reached a different result. (People v. Lewis (1990), 198 Ill. App. 3d 976, 982, 556 N.E.2d 697.) The substance and style of closing arguments are within the discretion of the trial court and its findings will not be disturbed absent extreme error. People v. Barnes (1983), 117 Ill. App. 3d 965, 978, 453 N.E.2d 1371.

The first contested remark was made by the prosecutor during opening closing argument and provides in pertinent part as follows:

“I am not emphasizing this to you to focus on Mrs. Hawkins’ [mother of the victim] loss, that is her personal loss and she will have to live with it, but to a larger extent, it is our loss as well because if 17-year-old Elizabeth Cooley can be shot down on the streets of Chicago in the manner in which she was shot down, nobody is safe.”

Defendant asserts that this argument impermissibly focused the jury’s attention on the loss suffered by Elizabeth Cooley’s family.

We do not regard these comments as objectionable. Every reference to a deceased’s family does not automatically entitle a defendant to a new trial, particularly, as in the present case, when the death penalty is not imposed. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.) The Illinois Supreme Court has acknowledged that common sense tells us that murder victims do not live in a vacuum and that, in most cases, they leave behind bereaved family members. People v. Pierson (1988), 166 Ill. App. 3d 558, 565, 519 N.E.2d 1185, quoting Free, 94 Ill. 2d at 415.

The second contested remark by the prosecutor was also made during opening closing argument.

“Ladies and gentlemen, what I am going to ask you to do by your verdict is to send a message to Mr. Maldonado and others who commit violent crime on our streets, and that message is that we, the law-abiding citizens — .”

The remaining disputed remarks were made by the prosecutor during rebuttal closing argument.

“In the meantime, what’s happening, he’s shooting in the direction of the car and we see the back window blown out, but because of that Albert Schweitzer didn’t intend to kill anybody because if he wanted to kill somebody, he would have done it when he first stepped up to them and shoved the gun in their faces. That is the most stupid argument that you have ever heard in your life, he didn’t intend to kill him because when he went right up on them he didn’t have the guts to blow their brains out. We didn’t prove intent only because he shoots as they are fleeing, do you think that is the only way we can really prove intent? It’s ridiculous, that is the most stupid argument I have ever heard in my life — .
* * *
The fact that he knew Elizabeth Cooley doesn’t even matter, he didn’t know anyone in that car, Cardinal Bernadine could have been in that car — .”

Defendant contends that these remarks were designed only to appeal to the sympathy and emotions of the jurors and to evoke their fear.

We do not believe that these arguments by the State exceeded the bounds of propriety. A prosecutor may comment unfavorably on the defendant and the evils of crime and advocate the fearless administration of the law. (People v. Jackson (1981), 84 Ill. 2d 350, 360, 418 N.E.2d 739; People v. Evans (1988), 173 Ill. App. 3d 186, 208, 527 N.E.2d 448.) Moreover, parties have the right to comment on the evidence and to draw any legitimate inferences from that evidence even if such inferences are detrimental to the defendant. People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.

Assuming these comments were improper either when taken individually or in the aggregate, such error would certainly not warrant reversal because we believe the comments were not of substantial magnitude when viewed in the context of the entire record and argument. People v. Graca (1991), 220 Ill. App. 3d 214, 221, 580 N.E.2d 1328.

Lastly, defendant asserts that the trial court abused its discretion in sentencing him to the maximum statutory term of imprisonment when viewed in the context of the nature of the offense, the evidence presented at the sentencing hearing, and defendant’s youth and rehabilitative potential. Defendant was only 20 years old at the time of the offense, the father of two small children, engaged to the children’s mother, had completed three years of high school, and had no prior felony convictions.

The State responds that the sentence was appropriate and argues that the sentence was within the statutory guidelines, that the judge considered the mitigating factors, and that defendant had two prior juvenile convictions for possession of a stolen motor vehicle and robbery.

Absent an abuse of discretion, a reviewing court will not disturb a sentence which falls within the statutory limits. (People v. Lambrechts (1977), 69 Ill. 2d 544, 372 N.E.2d 641; People v. Abernathy (1989), 189 Ill. App. 3d 292, 315, 545 N.E.2d 201.) The sentencing statute applicable to defendant provided a prison term for first degree murder ranging from 20 to 40 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1).) Thus, defendant received the maximum allowable sentence then in effect.

Although sentencing judges are properly vested with wide discretion to impose the penalty appropriate to the particular circumstances of each case, such discretion is not unfettered. (People v. O’Neal (1988), 125 Ill. 2d 291, 297, 531 N.E.2d 366.) Accordingly, Supreme Court Rule 615(b)(4) authorizes a reviewing court to reduce a sentence imposed by the trial court (107 Ill. 2d R. 615(b)(4)) where the record discloses that the trial court abused its discretion. (O’Neal, 125 Ill. 2d at 298.) Even if the sentence is within the statutory limitations, an abuse of discretion may be found where the sentence greatly varies with the purpose and spirit of the law. People v. Center (1990), 198 Ill. App. 3d 1025, 556 N.E.2d 724 (the defendant’s 15-year sentence for burglary was found excessive).

A sentence imposed for the offense of murder is as amenable to the scope of an appellate court’s power of reduction as any other offense. (E.g., People v. Crews (1969), 42 Ill. 2d 60, 66, 244 N.E.2d 593 (after noting that society is outraged by the murder of a child, the Illinois Supreme Court reversed the death penalty sentence and imposed a 20- to 35-year term of imprisonment on the defendant); People v. Wilkins (1976), 36 Ill. App. 3d 761, 767, 344 N.E.2d 724 (the court reduced the penalty imposed by the trial court where the defendant was 17 years old, had no prior criminal record, was attending high school, and had the possibility of rehabilitation); People v. Mitchell (1973), 12 Ill. App. 3d 960, 968, 299 N.E.2d 472 (after acknowledging that the defendant’s “shooting the gun into the crowd of people cannot be condoned,” the court reduced the defendant’s sentence where he was 20 years old at the time of the offense and had a minimal prior criminal record); People v. Adams (1972), 8 Ill. App. 3d 8, 13-14, 288 N.E.2d 724 (the sentence of an 18-year-old defendant who had three prior misdemeanor convictions was reduced after the court expressly “recognize[d] the heinous nature of the crime committed”).) In Crews, the supreme court explained that “care must be taken to insure that the punishment is appropriate and just.” Crews, 42 Ill. 2d at 66.

Our constitution dictates that “penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) The balancing of the retributive and rehabilitative purposes of punishment requires careful consideration of the nature and circumstances of the crime, the defendant’s conduct in the commission of the crime, and the defendant’s personal history, including his age, demeanor, habits, mentality, credibility, criminal history, general moral character, social environment, and education. Center, 198 Ill. App. 3d at 1033.

By way of comparison, we note that where the evidence revealed the murder was a planned execution (People v. Dower (1991), 218 Ill. App. 3d 844, 578 N.E.2d 1153; People v. Moore (1989), 189 Ill. App. 3d 957, 546 N.E.2d 232) or committed for money (People v. Escobar (1988), 168 Ill. App. 3d 30, 522 N.E.2d 191), the imposition of the 40-year maximum sentence was found to be justified. In contrast, a 16-year term of imprisonment was upheld following convictions for attempted first degree murder and armed violence where the defendant fired six shots at two police officers in the performance of their duties from a distance of no more than four feet even though the statutory sentencing range provided for a maximum prison term of 30 years. People v. Collier (1992), 228 Ill. App. 3d 159, 592 N.E.2d 444.

We conclude that the circumstances revealed in this record do not justify the imposition of the maximum sentence allowed by statute. Consequently, as authorized by Supreme Court Rule 615(b)(4), we reduce defendant’s sentence to 20 years’ imprisonment.

Defendant raised an additional issue regarding two alleged notes sent to the trial judge by the jury during its deliberations. By order dated December 24, 1991, this court granted the State’s motion to strike this issue and all arguments regarding it.

Affirmed as modified.

TULLY and CERDA, JJ., concur.


text:
    PATRICK MEDIA GROUP, INC., Plaintiff-Appellant, v. AD-EX, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 91—0298
    Opinion filed December 30, 1992.
    Thomas P. Sullivan, William A. Von Hoene, Jr., and Robert R. Stauffer, all of Jenner & Block, of Chicago, for appellant.
    Robert J. Weber, of Chicago, for appellees.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff Patrick Media Group, Inc. (plaintiff), a corporation whose principal business is the construction and operation of advertising billboard signs, brought an action against Ad-Ex, Inc. (defendant), a competitor of plaintiff, seeking to enjoin defendant from maintaining four advertising signs on the ground that the signs violate applicable provisions of the Municipal Code of the City of Chicago, a home rule unit. Patrick asserts standing to bring this action under section 11 — 13—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 13—15), which allows certain private parties to enforce municipal regulations.

Ad-Ex moved to dismiss the complaint on the ground that the language of section 11 — 13—1, that “This amendatory Act of 1971 does not apply to any municipality which is a home rule unit,” renders section 11 — 13—15 inapplicable to alleged violations of a City of Chicago ordinance, and plaintiff therefore lacks standing to bring the action. The trial judge denied defendant’s motion and, pursuant to Illinois Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)), certified this issue for us on appeal:

“Whether the provision in Ill. Rev. Stat., ch. 24, [par.] 11 — 13—1 which states ‘This Amendatory Act of 1971 does not apply to any municipality which is a home rule unit’ prohibits a private party from instituting a lawsuit, pursuant to Ill. Rev. Stat., ch. 24, [par.] 11 — 13—15, to enforce an ordinance or ordinances adopted by a home rule unit under Division 13 of the Illinois Municipal Code.”

We affirm the trial court’s ruling. Subsequent amendments to section 11 — 13—1 make it clear that the 1971 amendment does not apply to the entire section so that the section is applicable, in the main, to home rule and non-home-rule municipalities.

Plaintiff and defendant companies both erect advertising signs and lease space on those signs to advertisers. As part of a continuing “guerrilla” war being waged by the parties in the circuit and appellate courts of our State, plaintiff’s action seeks to prevent defendant from maintaining four signs allegedly constructed within 1,200 feet of signs constructed by plaintiff.

Plaintiff states that since it owns or leases all of the property upon which its signs are located, it has rights pursuant to section 11 — 13—15, which states that “any owner or tenant of real property, within 1,200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation *** may institute appropriate action” to enforce the regulation. Ill. Rev. Stat. 1991, ch. 24, par. 11 — 13—15.

Defendant maintains, however, that section 11 — 13—1 of the Illinois Municipal Code provides that any grant of authority under Division 13, entitled “Zoning,” does not apply to home rule units since the section provides: “This amendatory Act of 1971 does not apply to any municipality which is a home rule unit.” Ill. Rev. Stat. 1991, ch. 24, par. 11 — 13—1.

Prior to the 1970 Constitution, municipalities were deemed to have only those powers which were specifically granted to them by the constitution or by statute.

Effective July 1, 1971, the new constitution afforded home rule units the right to “exercise any power and perform any function pertaining to its government and affairs, including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare.” —. Const. 1970, art. VII, §6(a).

Although zoning is clearly within the activities contemplated by the new home rule provisions, the constitution allows home rule units to exercise powers concurrently with the State to the extent that the legislature does not impose limitations on such concurrently exercised powers or declares the State’s exercise to be exclusive. (Ill. Const. 1970, art. VII, §6(i).) Further, until the State acts, the rights and duties of public bodies shall remain as if the constitution had not been adopted. Ill. Const. 1970, Transition Schedule, §9.

Thus, section 11 — 13—1 would remain in force as to the City of Chicago until effectively changed or amended.

The General Assembly could elect (i) to allow concurrent zoning regulation with home rule units, (ii) to exercise exclusive regulatory powers, or (iii) to abdicate its powers with respect to that genre of governmental activity.

Accordingly, we must now inquire as to the intended effect of the 1971 amendment to section 11 — 13—1: “This amendatory Act of 1971 does not apply to any municipality which is a home rule unit.” Unfortunately, there are no audio tapes of the General Assembly’s proceedings for that period. One can, however, easily surmise that after decades of legislative wars to secure the right of self-government for the State’s larger municipalities, those rights would be legislatively asserted at the first possible moment.

To appreciate the mischief of the 1971 amendment, an understanding of the legislative process is required. In Illinois, we do not amend statutes by enacting a bill which merely sets out the new language. Rather, our constitution requires that a bill “expressly amending a law shall set forth completely the sections amended.” Ill. Const. 1970, art. IV, §8(d). See also Van der Silk & Redfield, Lawmaking in Illinois 235 (1986).

The substantive amendment to section 11 — 13—1 in 1971 was the addition of another objective of the zoning statute: “to insure and facilitate the preservation of sites, areas, and structures of historical, architectural and aesthetic importance.” Pub. Act 77— 1373, eff. Aug. 31, 1971 (amending Ill. Rev. Stat. 1969, ch. 24, par. 11 — 13—1).

Plaintiff argues that the concluding paragraph of the section relating to the nonapplicability to home rule units applies only to the additional substantive language contained in the 1971 amendment, although the entire section was reenacted in 1971. (Pub. Act 77— 1373, eff. Aug. 31, 1971 (amending Ill. Rev. Stat. 1969, ch. 24, par. 11 — 13—1).) If we were required to examine this matter from a 1971 perspective, we probably would be compelled to disagree with the plaintiff and would conclude that the General Assembly meant for the State to leave the field of regulation as to home rule units; however, the legislature has amended this very section (reenacting it in its entirety) on two subsequent occasions in 1982 and 1990 and has not seen fit to change the sentence directing that the 1971 amendment shall not apply to home rule units.

Do the 1982 and 1990 amendments apply to home rule units? Had the General Assembly wished to effect the nonapplicability of the entire section, it would have been a simple matter at the time of these subsequent amendments to expressly state that the entire section did not apply to home rule units.

Addressing this ambiguity, we can only conclude that the statute does regulate home rule communities because the legislature has not clearly negated the State’s concurrent regulation and that the 1971 amendment does not apply to the stated objectives of section 11 — 13—1 here considered.

Therefore, we find plaintiff has standing to maintain this action.

In La Salle National Bank v. Harris Trust & Savings Bank (1991), 220 Ill. App. 3d 926, 581 N.E.2d 363, the court found that the amendatory language of section 11 — 13—1 did not foreclose plaintiff from pursuing its private action. That decision was predicated upon the theory that the 1971 amendment was a limitation on home rule units and that the framers of the constitution would not have intended non-home-rule municipalities to have greater power than home rule units. (La Salle, 220 Ill. App. 3d at 929.) We do not read the legislative effort — albeit ambiguous and of little or no effect — as reducing the powers of home rule communities. We believe that the legislature could decide that sections 11— 13 — 1 and 11 — 13—15 are not available to home rule communities, and that units of local government would then be free to fashion their own zoning framework.

Perhaps the unique dynamics of each community should be considered by the local authorities rather than at the State level. Citizens of communities of differing size may wish to shoulder different responsibilities and may encounter different standards. For example, in small downstate communities or wealthy suburbs, the 1,200-foot limitation might include only a few people, while in densely populated areas of Chicago, 1,200 feet might contain thousands of potential plaintiffs. Similarly, small communities might wish to shift the expenses of ordinance enforcement to private landowners, while larger cities with adequate full-time legal counsel are able to enforce their own codes.

We do not quarrel with the result in La Salle, but use a different rationale to arrive at our decision.

The LaSalle court relied upon City of Urbana v. Houser (1977), 67 Ill. 2d 268, 367 N.E.2d 692, in reaching its decision. Houser found that a home rule unit could properly institute demolition proceedings under a Division 13 power despite the presence of the same language as found in section 11 — 13—1, because granting non-home-rule units such a power and denying that same authority to home rule units “would establish an unconstitutional classification and is meaningless.” Houser, 67 Ill. 2d at 275.

Certainly, we agree with the La Salle court that the constitution intended to allow home rule municipalities greater freedom to institute their own ordinances. (Isberian v. Village of Gurnee (1983), 116 Ill. App. 3d 146, 150, 452 N.E.2d 10.) However, contrary to the situation in Houser, we find that section 11 — 13—1 in this instance does not discriminate in favor of non-home-rule units at the expense of home rule units. Power is not usurped from home rule units since those municipalities could be, under the 1970 Constitution, the singular authority to determine, inter alia, whether to allow private citizens to intervene in the enforcement of zoning ordinances created under home rule auspices if the State did not exercise concurrent regulation with regard to zoning.

Like Houser, City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 338 N.E.2d 19, had held that the language of the 1971 amendatory provision, identical to that of section 11 — 13—1 in this case, did not revoke a home rule unit’s extraterritorial zoning powers since it found no basis to distinguish between non-home-rule units. Van Natta, 61 Ill. 2d at 490.

However, Van Natta and Houser express concern only that it is unconstitutional to limit the powers of home rule units in a manner not imposed on non-home-rule units since it is the grant of additional powers to home rule units that article VII, section 6, of the 1970 Constitution intended. Both courts stop short of declaring the 1971 amendment unconstitutional.

We do not believe that the 1971 amendment restricts the power of home rule communities; rather, it enhances their right to decide their own destiny. Three other cases which should be noted address the scope of a municipality’s powers to regulate access to the State’s court system and the method of review to be used by the State courts: Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11, 338 N.E.2d 186 (circuit court has jurisdiction to hear a challenge to a fine imposed by a municipal administrative agency, notwithstanding a municipal ordinance that attempted to govern the jurisdiction and procedure of the circuit court in such a matter); Cummings v. Daley (1974), 58 Ill. 2d 1, 317 N.E.2d 22 (ordinance was invalid which would have allowed a real estate broker whose license is suspended to appeal the suspension under the State’s Administrative Review Act; such ordinance was beyond the scope of power afforded a home rule unit under section 6 of article VII of the 1970 Constitution); Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 317 N.E.2d 3 (ordinance was invalid which gave the circuit court the power to review certain decisions of the city’s director of revenue and made the proceedings subject to the State’s Administrative Review Act; such ordinance was beyond the scope of power afforded a home rule unit under the constitution).

In Alschuler v. Department of Housing & Urban Development (N.D. Ill. 1981), 515 F. Supp 1212, aff’d (7th Cir. 1982), 686 F.2d 472, the court found still another method of ignoring the 1971 amendment and declining to face the scope of its application. Alschuler denied plaintiff’s standing under section 11 — 13—15 to enforce the City of Chicago’s Lake Michigan and Chicago Lakefront Protection Ordinance, but determined that the city had properly adopted its ordinance under Division 48.2 of the Illinois Municipal Code rather than under Division 13 relating to zoning.

Different courts have developed ways to avoid giving meaning to the 1971 amendment. La Salle and Houser viewed it as a limitation on home rule power and declined to give effect to the amendment because the framers of the constitution and the General Assembly could not have intended to provide non-home-rule communities with powers that were not available to home rule units. Van Natta seemed to agree that home rule communities could not have these powers limited although none of these courts were willing to strike down the odious 1971 amendment. Alschuler merely claims that it need not consider the amendment because the city’s lakefront protection ordinance was not a zoning regulation under Division 13 (zoning) but an independent exercise of home rule powers under another statutory provision.

We probably add a new dimension to the confusion but hopefully are facing the courts’ dilemma in a forthright manner. We believe that the General Assembly could exclude home rule communities from the operation of section 11 — 13—1 and thus allow them to fashion their own criteria of standing as to the enforcement of their ordinances (keeping in mind Nowicki, Cummings, and Paper Supply). Because there have been subsequent additions to section 11 — 13—1 with no conjunctive update of the final paragraph, we cannot merely choose to ignore statutory language, but we limit the amendment to its literal application: the substantive material enacted in 1971.

While the courts are pounded in this crucible of casuistry, we can only hope that the General Assembly will thoughtfully examine this 1971 amendment and its counterparts in other amendments to the Illinois Municipal Code.

For all of the foregoing reasons, we affirm the trial court and remand this matter for further consideration.

Affirmed.

RIZZI and CERDA, JJ., concur.

       Section 11 — 13—15 provides in part:
      “In case any building or structure, including fixtures, is constructed *** in violation of an ordinance or ordinances adopted under Division 13, 31 or 31.1 of the Illinois Municipal Code, or of any ordinance or other regulation made under the authority conferred thereby *** any owner or tenant of real property, within 1200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation *** may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use *** (4) to restrain, correct, or abate the violation.” Ill. Rev. Stat. 1991, ch. 24, par. 11-13-15.

       Originally, Ad-Ex challenged the validity of certain “set-back” requirements in the Chicago Zoning Ordinance and Electrical Code, including the requirement that prohibits the construction of most advertising signs within 500 feet of expressways. The 34 lawsuits between Ad-Ex and the city were dismissed upon agreement to a settlement in which the city issued permits for Ad-Ex to construct specified signs at certain locations (including the four locations at issue here), and Ad-Ex agreed to dismiss its complaints with prejudice and refrain from applying for any more permits that would violate the set-back requirements. This court later found that settlement void as against public policy. Ad-Ex, Inc. v. City of Chicago (1990), 207 Ill. App. 3d 163, 565 N.E.2d 669.
      Prior to our decision, plaintiff had filed suit challenging the validity of the settlement agreement, seeking to enforce the city ordinances, and enjoining the city from issuing permits for the disputed signs to Ad-Ex. This court ultimately determined that plaintiff had no standing to challenge the validity of the agreement itself, but could maintain a quo warranto action challenging the authority of city officials to enter into the settlement. (People ex. rel. Patrick Media Group, Inc. v. City of Chicago (1991), No. 1—89—3034.) However, we granted defendant’s subsequent motion to have that decision withdrawn in light of our determination that the settlement agreement was void. People ex. rel. Patrick Media Group, Inc. v. City of Chicago (1991), No. 1—89—3034.

       The delegates to the 1969 Constitutional Convention discussed these limitations and referred to them as “Judge Dillon’s rule,” having been set out in 1 Dillon, Municipal Corporations, 448 (5th ed. 1911). See also 4 Record at Proceedings, Sixth Illinois Constitutional Convention 3038 (statements of Delegate John G. Woods).

       Section 9 of the Transition Schedule states:
      “The rights and duties of all public bodies shall remain as if this Constitution had not been adopted with the exception of such changes as are contained in this Constitution. All laws, ordinances, regulations and rules of court not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force, until they shall expire by their own limitation or shall be altered or repealed pursuant to this Constitution.” Ill. Const. 1970, Transition Schedule, §9.

       In the 77th and 78th General Assembly, home rule advocates apparently added to each amendment to the Illinois Municipal Code “This amendatory Act of 1971 does not apply to any municipality which is a home rule unit” or “This amendatory Act of 1971 is not a limit on home rule powers.”
      In the 77th General Assembly, the following sections of the Illinois Revised Statutes (1971) were amended as to applicability:
      Chapter 24, section 3 — 4—6.1; Chapter 24, section 11 — 11—1;
      Chapter 24, section 3 — 13—6; Chapter 24, section 11 — 13—1;
      Chapter 24, section 3 — 13—11; Chapter 24, section 11 — 48.2—1A;
      Chapter 24, section 3 — 13—16; Chapter 24, section 11 — 48.2—2;
      Chapter 24, section 10 — 1—13; Chapter 24, section 11 — 48.2—6;
      Chapter 24, section 11 — 5—7; Chapter 24, section 11 — 74—13.
      Chapter 24, section 11 — 5—8;
      In the 78th General Assembly, the following sections of the Illinois Revised Statutes (1973) were amended as to applicability, except substituting the year:
      Chapter 24, section 8 — 5—1; Chapter 24, section 10 — 3—2;
      Chapter 24, section 10 — 2.1—5; Chapter 24, section 10 — 5—2;
      Chapter 24, section 10 — 2.1—6; Chapter 24, section 11 — 5—7.
      Chapter 24, section 10 — 2.1—8;
      It appears that by 1975, the General Assembly understood that these amendments were unnecessary and no longer placed them on every amendment to chapter 24, which regulates cities and villages.

       Pub. Act 82 — 115, §1, eff. Jan. 1, 1982 (amending Ill. Rev. Stat. 1981, ch. 24, par. 11-13-1); Pub. Act 86-1025, art. 3, §1, eff. Jan. 24, 1990 (amending Ill. Rev. Stat. 1989, ch. 24, par. 11-13-1).

       It is conceded that following our logic, the 1971 change with respect to “preservation of sites *** of historic, architectural and aesthetic importance” would not apply to home rule communities, while the remainder of section 11 — 13—1 would be so applicable. Further, it makes reliance on the Illinois Revised Statutes somewhat dangerous since a reader cannot know what was adopted before 1971, in 1971, 1982 or 1990 without resort to the session laws. Consider section 11 — 25—4, which now recites “The amendatory Acts of 1971, 1972 and 1973 are not a limit upon *** home rule.” (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 25—4.) The section was amended in each of those years and also in 1989.

       Contrary to our reading of La Salle, Van Natta and Houser, at least one writer believes that La Salle “held division 13 of the municipal code unconstitutional to the extent that it deprived *** citizens of the power to invoke section 11 — 13—15.” Brusslan, Private Citizens’ Right to Abate Local Zoning Violations, 80 Ill. B.J. 564, 565 (1992).

       While the home rule amendments adopted during the years following adoption of our 1970 Constitution remain a part of the statutes, in 1979 the General Assembly enacted section 7 of the Statute on Statutes, which provides:
      “No law enacted after January 12, 1977, denies or limits any power or function of a home rule unit, pursuant to paragraphs (g), (h), (i), (j), or (k) of Section 6 of Article VII of the Illinois Constitution, unless there is specific language limiting or denying the power or function and the language specifically sets forth in what manner and to what extent it is a limitation on or denial of the power or function of a home rule unit.” Ill. Rev. Stat. 1991, ch. 1, par. 1106.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRANCE HUNT, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 89—1670
    Opinion filed December 30, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Timothy J. Leeming, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Carol L. Gaines, and Joseph W. Colaianne, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Defendant, Terrance Hunt, was charged with two counts of murder. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1.) Following a bench trial, he was convicted of involuntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3) and sentenced to five years’ imprisonment to be served concurrently with an unrelated murder charge. On appeal, defendant asserts that (1) his fifth amendment right to counsel attached when he accepted counsel on an unrelated crime; (2) his sixth amendment right to counsel attached when a complaint was sworn and an arrest warrant served; (3) he did not knowingly and intelligently waive his fifth amendment right to counsel after he invoked it for this crime; and (4) the police conduct violated his rights under the Illinois Constitution. We affirm.

On January 8, 1987, defendant argued and fought with Timothy Jenkins. As a result of the fight, Jenkins suffered head injuries for which he was hospitalized until September 3, 1987, when he died from his injuries.

Chicago police detective Byron Uppling testified that he was assigned to investigate the January 8, 1987, battery of Jenkins. Defendant was arrested on March 17, 1987, on an unrelated charge for which the Cook County public defender was appointed to represent him. Upon learning that defendant had been arrested for the unrelated offense, Uppling obtained a writ of habeas corpus and transferred defendant from the county jail to a courtroom. There, Uppling served defendant with a criminal complaint for a preliminary hearing and an arrest warrant for the Jenkins battery. Defendant was transferred to the Area Four police station for a lineup and an interview concerning the Jenkins battery.

Detective Uppling stated that he advised defendant of his Miranda rights at 1:45 p.m. on March 20, 1987. At that time, defendant stated that he did not want to make a statement. At about 3 p.m., defendant participated in a lineup. Afterwards, Uppling asked defendant if he was hungry and gave him some food. According to Uppling, defendant told him at that time that he wanted to tell his story. Defendant did not tell his story at that time.

Uppling contacted Assistant State’s Attorney Robert Alvarado, who took a statement from defendant at 4:50 p.m. after advising him of his Miranda rights. Uppling was present when the statement was taken. Detective Uppling testified that defendant stated that he had been in á fight with Jenkins on the date in question.

Prior to trial, defendant moved to suppress his custodial statement. The trial court denied the motion, ruling that defendant’s sixth amendment right to counsel did not attach when the complaint was filed and the arrest warrant issued regarding the Jenkins battery. The trial court also found that no fifth amendment violation occurred and that defendant’s confession was knowingly and voluntarily made.

On appeal, defendant asserts that his inculpatory statement should have been suppressed because it was obtained following an illegal lineup by authorities who initiated interrogation after defendant refused to cooperate. He bases his argument on the fifth and sixth amendments of the United States Constitution.

Initially, defendant argues that his fifth amendment right to counsel attached on March 17, 1987, when he accepted legal representation by the Cook County public defender on an unrelated charge. In his reply brief, however, he concedes that under the recent United States Supreme Court opinion in McNeil v. Wisconsin (1991), 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204, the appointment of counsel at a judicial proceeding of an unrelated offense does not constitute a right to counsel under the fifth amendment. McNeil was decided while this appeal was pending. Subsequently, the Illinois Supreme Court followed McNeil in People v. Crane (1991), 145 Ill. 2d 520.

In Crane, the supreme court stated the following:

“The sixth amendment right to counsel is offense-specific. It cannot be invoked once for all future prosecutions, because the sixth amendment does not attach until the initiation of adversary judicial criminal proceedings. ***
Applying McNeil to the case at bar, even if defendant did request counsel in regard to the New Mexico offenses, this request would not relate to the questioning regarding the events surrounding the murder of Gahan. Defendant was being held in New Mexico on misdemeanor traffic offenses and as a fugitive from justice in Illinois because of a parole violation and an outstanding warrant. Defendant was informed that New Mexico does not appoint counsel on fugitive from justice charges. Additionally, while two offenses may be sufficiently similar that a sixth amendment right to counsel on one triggers a right to counsel on the other (People v. Clankie (1988), 124 Ill. 2d 456, 465), the New Mexico and Illinois offenses are not related for sixth amendment purposes. Defendant had not been charged with the murder of Gahan at the time of the questioning. Thus, the initiation of adversary proceeding had not begun and the sixth amendment did not apply.” Crane, 145 Ill. 2d at 531-32.

Defendant then asserts that it was illegal for the police to initiate further conversation with him once he refused to cooperate. He maintains that compelling him to appear in a lineup and then engaging him in a general conversation constituted the initiation of interrogation. Prior to the lineup, defendant had unequivocally declared his intent not to make a statement. He maintains that his subsequent statement was not made because he knowingly and intelligently waived his previously invoked rights, but because he was coerced with the inculpatory results of the illegal lineup.

The fifth amendment guarantees that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. V.) In Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706-07, 86 S. Ct. 1602, 1612, the United States Supreme Court held that the fifth amendment provides that a suspect in custody must be informed that he has the right to remain silent and to have an attorney present before he is interrogated. The defendant may waive those rights provided the waiver is made voluntarily, knowingly, and intelligently. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 707, 86 S. Ct. at 1612.

If the accused indicates in any manner at any time that he wants to remain silent, the interrogation must cease. (Miranda, 384 U.S. at 473-74, 16 L. Ed. 2d at 723, 86 S. Ct. at 1627-28.) Although the Miranda court held that the interrogation must cease until an attorney is present if the accused asks for an attorney (Miranda, 384 U.S. at 474, 16 L. Ed. 2d at 723, 86 S. Ct. at 1628), it did not state under what circumstances, if any, a resumption of questioning is permissible if the accused chooses to remain silent but does not ask for an attorney. Michigan v. Mosley (1975), 423 U.S. 96, 101, 46 L. Ed. 2d 313, 320, 96 S. Ct. 321, 325.

In Michigan v. Mosley, the United States Supreme Court held that a reasonable and faithful interpretation of Miranda is that the accused must be fully and effectively notified of his right to remain silent and assured that the exercise of that right will be scrupulously honored. (Mosley, 423 U.S. at 103, 46 L. Ed. 2d at 321, 96 S. Ct. at 326.) A suspect’s statements made after he had earlier expressed a desire to remain silent are admissible if the police scrupulously honor the suspect’s right to cut off questioning. (Mosley, 423 U.S. at 104, 46 L. Ed. 2d at 321, 96 S. Ct. at 326.) The police fail to honor a decision of a person in custody to cut off questioning by either refusing to discontinue the interrogation upon request or persisting in repeated efforts to wear down his resistance and make him change his mind. Mosley, 423 U.S. at 105-06, 46 L. Ed. 2d at 322, 96 S. Ct. at 327.

In Mosley defendant was advised of his Miranda rights. Defendant stated he did not want to answer any questions about the robberies. The police promptly ceased interrogation. Two hours later another detective questioned defendant solely about an unrelated murder after advising him of his Miranda rights. Defendant then gave his statement. The court concluded that the police did not violate the defendant’s rights because they immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time, provided another set of warnings, and restricted the second interrogation to an unrelated crime. Mosley, 423 U.S. at 106, 46 L. Ed. 2d at 322, 96 S. Ct. at 327.

In People v. Foster (1987), 119 Ill. 2d 69, 86-87, where the defendant was requestioned about the same crime, the Illinois Supreme Court applied Mosley. The court stated that being requestioned about the same crime does not necessarily mean that the defendant’s rights under Miranda were violated. Foster, 119 Ill. 2d at 86.

In that case, the defendant, Foster, was taken from his lockup cell at 6:30 a.m. and questioned. Foster refused to answer any questions. At 9:30 a.m., defendant was brought to the interviewing room and was advised of his Miranda rights at which time he proceeded to give a statement confessing to the crime. The court held that the accused’s right to remain silent was “scrupulously honored.” Foster, 119 Ill. 2d at 86.

Some of the factors to be considered in determining admissibility of a statement made after an initial refusal to make one are whether there was a significant period of time between the defendant’s exercise of his right to remain silent and the requestioning; whether the requestioning was preceded by Miranda warnings; whether a different officer conducted the second questioning (People v. Reyes (1989), 181 Ill. App. 3d 246, 255); and whether the person in custody volunteers information without any further interrogation. (Mosley, 423 U.S. at 102, 46 L. Ed. 2d at 320, 96 S. Ct. at 325-26.) Voluntariness is determined by consideration of the totality of the circumstances. Reyes, 181 Ill. App. 3d at 255.

There are a number of considerations in determining whether the police in this case scrupulously honored defendant’s right to remain silent. On March 20, 1987, Officer Uppling served defendant’s arrest warrant and writ of habeas corpus on the Cook County Department of Corrections. Defendant was taken to court, where he was served with the complaint and arrest warrant. He was then taken to the Area Four police station to appear in a lineup. At 1:45 p.m., Uppling gave defendant the Miranda warnings. When defendant told Uppling that he did not want to speak to him, Uppling ceased all interrogation.

At 3 p.m., defendant appeared in the lineup. Afterwards, Uppling asked defendant if he was hungry and gave him a soda and potato chips. According to Uppling, defendant then stated that he would like to tell his story. Uppling contacted Assistant State’s Attorney Robert Alvarado and an oral statement was taken at 4:50 p.m. Uppling’s testimony is the only evidence in the record about what occurred at the police station.

The evidence presented at trial shows that the police honored defendant’s initial decision to remain silent. All questioning was discontinued when defendant indicated that he did not want to make a statement. The police did not persist in repeated efforts to wear him down. Asking defendant if he was hungry and then giving him food and drink does not amount to interrogation about a crime. The evidence shows that defendant voluntarily told Uppling that he wanted to make a statement.

That same evidence indicates that defendant waived his right to remain silent. A waiver may be either express or implied (Miranda, 384 U.S. at 475, 16 L. Ed. 2d at 724, 86 S. Ct. at 1628) and can be clearly inferred from the actions and words of the person interrogated. (North Carolina v. Butler (1979), 441 U.S. 369, 373, 60 L. Ed. 2d 286, 292, 99 S. Ct. 1755, 1757.) Waiver is determined on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. (Butler, 441 U.S. at 374-75, 60 L. Ed. 2d at 293, 99 S. Ct. at 1758.) In this case defendant waived his fifth amendment right when he told Uppling that he wanted to tell his story.

Defendant then asserts that his sixth amendment right to counsel attached prior to the lineup because the State had committed itself to prosecute him. Defendant contends that the filing of a complaint and issuing an arrest warrant against him began adversarial proceedings. Thus, defendant argues, any lineup conducted and any statements made after the filing of the complaint were improper.

A person’s sixth amendment right to counsel attaches after adversarial judicial criminal proceedings have been initiated against him by way of a formal charge, preliminary hearing, indictment, information, or arraignment. (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882; People v. Hayes (1990), 139 Ill. 2d 89, 123.) It ensures that the accused has counsel at critical preindictment proceedings where he is confronted by the procedural system, an expert adversary or both, and where the results of the confrontation might determine his fate and make the trial itself a mere formality. (United States v. Ash (1973), 413 U.S. 300, 309, 37 L. Ed. 2d 619, 626, 93 S. Ct. 2568, 2573; Kirby, 406 U.S. at 689, 32 L. Ed. 2d at 417-18, 92 S. Ct. at 1882.) Judicial criminal proceedings are initiated when the government has committed itself to prosecute and the adverse positions of the government and defendant have solidified. Kirby, 406 U.S. at 689, 32 L. Ed. 2d at 418, 92 S. Ct. at 1882.

The United States Supreme Court has not yet decided whether the sixth amendment right to counsel attaches automatically upon the filing of a criminal complaint. The Illinois Supreme Court has ruled that the court must consider the degree to which the State’s prosecutorial forces have focused on the accused when determining whether an accused’s sixth amendment right to counsel attaches upon the filing of a criminal complaint. Hayes, 139 Ill. 2d at 124.

In Hayes, a police officer swore to and filed an application for the issuance of an arrest warrant in the form of a complaint for preliminary examination charging the defendant with attempted armed robbery. (Hayes, 139 Ill. 2d at 122.) The State’s Attorney’s office reviewed the form of the application and approved the issuance of an arrest warrant. The police officer then presented the complaint to a circuit court judge, who issued a warrant for the defendant’s arrest. The defendant was arrested and was immediately placed in a lineup, where he was identified as the person who committed the crime. (Hayes, 139 Ill. 2d at 122.) The court held that the prosecutor’s involvement in the procurement of the warrant was not significant and did not signal a commitment by the State to prosecute the defendant. The prosecutor’s review of a complaint was insufficient, by itself, to trigger defendant’s sixth amendment right to counsel at a lineup. The court further held that the filing of a complaint and the issuance of an arrest warrant for one criminal charge do not indicate that the State was committed to prosecute the defendant for another unrelated murder charge not specified in that complaint. Hayes, 139 Ill. 2d at 125-26.

In People v. Owens (1984), 102 Ill. 2d 88, the supreme court stated that the filing of a simple complaint at the direction of the prosecutor may constitute the initiation of adversarial proceedings, but the filing of such a complaint by a police officer in order to get an arrest warrant does not necessarily have the same effect if there is no indication of prosecutorial involvement.

Defendant cites People v. Curtis (1985), 132 Ill. App. 3d 241, where this court ruled that the defendants’ sixth amendment right to counsel attached upon the filing of a criminal complaint. The Hlinois Supreme Court reversed the appellate court ruling on other grounds and stated that it did not address the lower court’s views as to when the sixth amendment right to counsel attaches. People v. Curtis (1986), 113 Ill. 2d 136, 143.

This record does not indicate any prosecutorial involvement before defendant’s March 20 statement. There was no evidence that any prosecutor prepared the complaint or the arrest warrant or had any involvement whatsoever. Furthermore, it was Officer Uppling who obtained the habeas corpus writ. Therefore, with no known prosecutorial involvement, defendant’s sixth amendment right to counsel did not attach prior to his March 20 statement.

Finally, defendant asserts that Illinois law is more protective of his right against self-incrimination than the Federal Constitution. We disagree.

Section 8 of article I of the 1970 Illinois Constitution, entitled “Rights after Indictment,” provides that “[i]n criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel.” (Ill. Const. 1970, art. I, §8.) The legislature stated that this was a minor rephrasing of section 9 of article II of the 1870 Constitution and that it maintains the guarantees insuring that anyone accused of a crime has the right to a fair trial. 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2684.

We hold that the State was not committed to prosecute defendant when he was transferred from the jail to the courtroom, served with a complaint for a preliminary hearing, served with an arrest warrant for battery, and placed in a lineup in this case. Based upon the record, no adversary judicial criminal proceedings had been initiated before defendant’s statement.

In People v. Allen (1991), 221 Ill. App. 3d 737, 740, this court rejected a similar argument and followed McNeil. The court found that there was no reasonable basis for holding that an accused’s invocation in a criminal prosecution of his right to appear and defend in person and by counsel turns into an unarticulated invocation of his right not to be compelled in another, but unrelated criminal case to give evidence against himself. Allen, 221 Ill. App. 3d at 740.

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

Affirmed.

RIZZI and TULLY, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD WILLIAMS, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 88—1658
    Opinion filed December 30, 1992.
    Rita A. Fry, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Robyn Berman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Bernard Williams, was convicted of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1) in a jury trial and sentenced to 14 years’ imprisonment. On appeal, defendant contends that (1) the trial court committed reversible error when it permitted the State to elicit testimony about the contents of a police inventory report; (2) the trial court erred when it permitted an unqualified witness to testify as an expert witness; (3) the trial court erred when it permitted impeachment on a collateral matter during cross-examination of Detective Silacz; (4) the trial court erred when it permitted rebuttal testimony that did not rebut any matter elicited by defendant; and (5) the State failed to prove defendant guilty of burglary beyond a reasonable doubt. We reverse and remand.

At approximately 5:15 a.m. on March 4, 1987, Cicero police detective Edward Silacz discovered a shattered glass door at the Submarine Brothers Restaurant in Cicero, Illinois. Detective Silacz radioed Cicero police dispatch of a possible burglary and exited his vehicle to investigate. As he approached the broken door, Detective Silacz saw the silhouette of a man inside the restaurant. Detective Silacz identified himself as a police officer and ordered the offender, defendant, to halt. Defendant fled, and Detective Silacz gave chase. Other Cicero police officers arrived on the scene and defendant was quickly apprehended. Following a jury trial, defendant was found guilty of burglary. At the sentencing hearing, the trial court determined that defendant had previously been convicted of three prior Class 2 felonies and sentenced him to 14 years’ imprisonment as a Class X offender. This appeal followed.

Defendant first argues that the trial court committed reversible error when it permitted the State to elicit testimony from Detective Silacz about the contents of a police inventory report. We agree. While it is true that police reports may be used for impeachment or refreshing a witness’ recollection, it is well settled that police reports are inadmissible hearsay not subject to any recognized exception to the hearsay rule. (See People v. Garrett (1991), 216 Ill. App. 3d 348, 357, 576 N.E.2d 331, 338; People v. Gagliani (1991), 210 Ill. App. 3d 617, 629, 569 N.E.2d 534, 542.) The State argues that the police report was not used as substantive evidence, but rather that it was used pursuant to the doctrine of curative admissibility to eradicate an unfair prejudice that resulted after defense counsel referred to the report during Detective Silacz’s cross-examination. The record, however, does not support the State’s explanation.

Our review of the record here reveals that the police inventory report was not used, as the State argues, to rehabilitate Detective Silacz after defense counsel attempted to discredit him on cross-examination. Rather, it is plain that the contents of the police report were used as substantive evidence on the issue of identification to show that the clothes worn by defendant at the time of his arrest matched the description of the clothes worn by the offender seen by Detective Silacz burglarizing the restaurant. We will not permit the State, under the guise of the doctrine of curative admissibility, to violate the rules of evidence under the rationale of neutralizing an infer-

ence which is favorable to the accused. We also find that the State’s use of this hearsay evidence is highly prejudicial, and not merely harmless error.

Accordingly, defendant’s conviction for burglary is reversed. Because, however, we find there is sufficient evidence with which to support defendant’s conviction, we remand this case for a new trial. (See People v. St. Pierre (1988), 122 Ill. 2d 95, 115-16, 522 N.E.2d 61, 69.) Having determined that defendant is entitled to a new trial, it is therefore unnecessary to address his other contentions.

Reversed and remanded.

TULLY and CERDA, JJ., concur.