author: JUSTICE RIZZI

text:
    WILLIAM J. McCORMICK, Plaintiff-Appellant, v. NADINE R. KRUK et al., Defendants (Thomas S. Milazzo, Defendant-Appellee).
    First District (3rd Division)
    No. 1—90—0954
    Opinion filed September 25, 1991.
    Richard I. Bass, of Chicago (Catherine L. Grahn, of counsel), for appellant.
    Torshen, Schoenfield & Spreyer, Ltd., and Garretson & Santora, both of Chicago (Jerome H. Torshen, Abigail K. Spreyer, and Harold J. Winston, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff William J. McCormick (McCormick) appeals from an order of the circuit court of Cook County which granted defendant Thomas S. Milazzo’s (Milazzo’s) motion to dismiss with prejudice the fourth amended count III of his second amended complaint for failure to state a cause of action. On appeal, McCormick contends that the trial court erred in dismissing count III of his complaint. We reverse and remand.

At approximately 12:05 a.m. on January 26, 1987, defendant Irene Wittke (Wittke) was driving her automobile southbound in the 6100 block of South Central Avenue when she lost control of her vehicle. Wittke’s vehicle proceeded in an easterly direction across the center line of Central Avenue and came to rest where part of her car was on and part of it off the paved roadway. Wittke’s disabled automobile was abandoned in the position where it came to rest partially obstructing the easternmost lane of northbound Central Avenue. Wittke notified the City of Chicago police department of the presence of her vehicle.

Approximately 5^2 to 6 hours later at 5:30 a.m., Milazzo was driving northbound on Central Avenue when he collided head-on with the abandoned Wittke vehicle. The impact of the vehicles caused the abandoned Wittke car to move farther into the roadway, blocking both lanes of northbound traffic in the 6100 block of South Central Avenue. Milazzo notified the Chicago police department of the presence of the Wittke vehicle and left the scene.

Approximately V-k hours later at about 6:45 a.m., McCormick was driving a car southbound in the 6100 block of South Central Avenue in Chicago. At the same time, defendant Nadine Kruk (Kruk) was operating an automobile northbound in the 6100 block of South Central Avenue. The 6100 block of South Central Avenue is a four-lane thoroughfare with two lanes of traffic going northbound and two going southbound divided by a center yellow line. Kruk allegedly crossed the center line of South Central Avenue in order to avoid the abandoned Wittke car and collided head-on with McCormick’s automobile in the westernmost southbound traffic lane. As a result of the collision McCormick was injured.

Thereafter, McCormick filed a one-count complaint and two four-count amended complaints. McCormick’s complaint named Kruk, Wittke, the City of Chicago and Milazzo as defendants. Milazzo filed a motion to dismiss count III of McCormick’s second amended complaint and each successive amended count III for failure to state a cause of action. The trial court granted Milazzo’s motion as to each successive amendment to count III and granted leave to amend. After McCormick filed his fourth amended count III, the trial court found that McCormick had still failed to allege a duty on the part of Milazzo to move Wittke’s abandoned vehicle out of the traffic lanes and granted Milazzo’s motion to dismiss with prejudice. This appeal followed.

The sole issue on appeal is whether the fourth amended count III of McCormick’s second amended complaint states a cause of action for negligence against Milazzo.

On a motion to dismiss, all well-pleaded facts are accepted as true. (McColgan v. United Mine Workers of America (1984), 124 Ill. App. 3d 825, 826, 464 N.E.2d 1166, 1167.) The standard of review on appeal from a motion to dismiss a complaint is whether the complaint sufficiently states a cause of action. (Kenworthy v. Young (1979), 70 Ill. App. 3d 144, 145-46, 388 N.E.2d 217, 219.) The merits of the case are not before the reviewing court. (Tru-Link Fence Co. v. Reuben H. Donnelley Corp. (1982), 104 Ill. App. 3d 745, 750, 432 N.E.2d 1188, 1192.) When reviewing a motion to dismiss, the court should interpret the facts alleged in the complaint in the light most favorable to the plaintiff, and the complaint should not be dismissed unless the pleadings disclose that no set of facts could be proved that would entitle plaintiff to relief. Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634, 637, 417 N.E.2d 806, 808-09.

To state a legally sufficient claim for negligence, a plaintiff must allege the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (McLane v. Russell (1989), 131 Ill. 2d 509, 514, 546 N.E.2d 499, 501-02.) The question of whether a duty exists is an issue of law to be determined by the court. (McLane, 131 Ill. 2d at 514.) The question of duty in a negligence action should take into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 526, 513 N.E.2d 387, 396.) To conclude that a duty exists, a court must find that the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. McLane, 131 Ill. 2d at 514-15.

The trial court found as a matter of law that Milazzo did not have a duty to either move, remove or place any warning flares or lights on or near the abandoned Wittke vehicle after his collision with it. McCormick’s complaint alleged that Milazzo’s conduct (striking the abandoned Wittke vehicle and leaving it obstructing both lanes of northbound traffic on South Central Avenue) created a dangerous condition that interfered with the free and safe flow of traffic on Central Avenue. McCormick further alleged that the resulting accident which injured McCormick was one which was reasonably likely to occur under the circumstances.

We find as a matter of law that the fourth amended count III of McCormick’s second amended complaint sufficiently stated a cause of action for negligence against Milazzo. In imposing a duty on Milazzo to move, remove or otherwise illuminate or mark the obstruction of both lanes of northbound traffic on Central Avenue which he created, we take into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.

The Illinois Vehicle Code provides in part:

“Duty upon damaging unattended vehicle or other property. The driver of any vehicle which collides with or is involved in a motor vehicle accident with any vehicle which is unattended, or other property, resulting in any damage to such other vehicle or property shall immediately stop and shall then and there either locate and notify the operator or owner of such vehicle or other property of the driver’s name, address, registration number and owner of the vehicle the driver was operating or shall attach securely in a conspicuous place on or in the vehicle or other property struck a written notice giving the driver’s name, address, registration number and owner of the vehicle the driver was driving and shall without unnecessary delay notify the nearest office of a duly authorized police authority and shall make a written report of such accident when and as required in Section 11 — 406. Every such stop shall be made without obstructing traffic more than is necessary.
Any person failing to comply with this Section shall be guilty of a Class A misdemeanor.” Ill. Rev. Stat. 1987, ch. 95½, par. 11-404.

In his complaint, McCormick alleged that Milazzo had a duty not to obstruct other vehicles using the roadway. McCormick further alleged that Milazzo created an unreasonably dangerous condition, abandoned Wittke’s car after moving it into an obstructing position, and failed to remove it even though it was foreseeable that other collisions would occur. Milazzo’s failure to move, remove, mark or illuminate the obstruction of both lanes of northbound South Central Avenue traffic constituted a breach of his duty to comply with the provisions of section 11—404 of the Illinois Vehicle Code prohibiting the obstruction of traffic following an accident involving an unattended vehicle. Under these circumstances, it was both reasonably likely and foreseeable that an injury would occur since Milazzo himself had just collided with the Wittke vehicle while it was obstructing only one lane of traffic. In contrast, the burden upon defendant of guarding against this accident was minor. In addition, as a motorist, Milazzo owed to McCormick a duty of reasonable conduct. We therefore conclude that the trial court erred in granting Milazzo’s motion to dismiss count III of McCormick’s complaint since the pleadings reveal the existence of a set of facts which could entitle McCormick to relief.

Accordingly, the order of the circuit court of Cook County which dismissed with prejudice the fourth amended count III of McCormick’s second amended complaint is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

CERDA, P.J., and GREIMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE GREIMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD EVERETTE, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—1978
    Opinion filed September 27, 1991.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Rosenthal & Schanfield, both of Chicago (Robert R. Tepper, Andrew J. Katlin, John S. Delnero, Nancy Grant, Glenn E. Heilizer, and David G. Spak, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund and Patricia Y. Brown, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant, Donald Everette, was convicted of murder and sentenced to 24 years’ imprisonment.

This cause now comes before us on remand from the supreme court (People v. Everette (1990), 141 Ill. 2d 147, 565 N.E.2d 1295) to consider two issues presented by defendant which this court did not reach in our previous decision on this matter (People v. Everette (1989), 187 Ill. App. 3d 1063, 543 N.E.2d 1040). Defendant first contends that the following statements are prejudicial and constitute reversible error: (1) numerous references to the location of the fatal wound, i.e., the victim was shot in the back; (2) a question posed regarding defendant’s possession of an identification card for his gun; (3) a comment made by the prosecutor during closing argument about defendant’s eyeglasses; (4) the prosecutor’s reference to defendant’s attorney as a “hired gun”; and (5) the prosecutor’s argument during rebuttal that “self-defense is out of this case.” The second issue raised by defendant is whether or not his sentence is excessive.

For the reasons which follow, we affirm the judgment of the circuit court.

The facts need not be fully repeated here since they are detailed in both the decision of the supreme court (Everette, 141 Ill. 2d 147, 565 N.E.2d 1295) and the prior opinion of this court (Everette, 187 Ill. App. 3d 1063, 543 N.E.2d 1040). In short, defendant admitted that he fatally shot the victim in the back but claimed that the shooting was an accident or, in the alternative, that he acted in self-defense. The trial court instructed the jury on involuntary manslaughter and murder because it believed that an accident defense was inconsistent with and thus precluded a self-defense theory. On appeal, this court found that the trial court’s failure to instruct the jury on self-defense and voluntary manslaughter required a new trial. Everette, 187 Ill. App. 3d 1063, 543 N.E.2d 1040.

The Elinois Supreme Court reversed and held that although a homicide defendant is entitled to an instruction on self-defense even where the defendant testifies he accidentally killed the victim, the present defendant failed to introduce sufficient evidence to warrant an instruction on self-defense. (Everette, 141 Ill. 2d 147, 565 N.E.2d 1295.) Accordingly, the supreme court found that the trial court’s refusal to tender a self-defense instruction was correct. The supreme court then remanded the cause for consideration of the two issues which were raised but not reached in defendant’s appeal to this court.

We initially address defendant’s contention that he was denied a fair trial based on certain statements made by the State which were allegedly improper and so prejudicial as to constitute reversible error. The nature and character of the remarks which are the gist of this appeal do not warrant reversal.

It is well established that improper remarks do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200.) Each case must be decided on its own facts. Baptist, 76 Ill. 2d at 29.

First, defendant argues that he was unfairly prejudiced by repeated references, i.e., approximately 52, to the fact that the victim was shot in the back.

Statements based on the evidence are not improper. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) Moreover, an opening statement is intended to inform the jury of facts each party expects to prove in the course of the trial. People v. Davis (1982), 104 Ill. App. 3d 512, 432 N.E.2d 1134.

The evidence revealed that the fatal bullet wound entered the victim’s back and exited through the front of his body. A review of the record discloses that the prosecutor made nine references to this fact during his opening argument and the majority of the remaining references to the location of the bullet wound occurred during the testimony of the deputy medical examiner. Given the circumstances of this case, the evidence presented, and the self-defense theory advanced by defendant, we find that the references to the location of the bullet wound during opening statements and testimony were not improper because they stemmed from the evidence and addressed a key issue in the case.

Second, defendant submits that he was prejudiced by the following question which the prosecutor asked defendant during his cross-examination: “You got any identification cards for this gun?” Defendant argues that the intent of this question was to improperly suggest to the jury that defendant had violated other laws.

The record reveals that defense counsel objected to this question, the trial judge sustained the objection, and defendant never answered this question. When a trial court promptly sustains an objection and instructs the jury to disregard an improper argument, any prejudicial effect caused by the improper statement is generally viewed as cured. Baptist, 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Spann (1981), 97 Ill. App. 3d 670, 422 N.E.2d 1051.

We find that any prejudicial effect which may have resulted from this question was sufficiently cured by the trial court’s actions.

Third, defendant asserts that during closing argument the State improperly implied that defendant had lied about his poor eyesight when the prosecutor made the following remark: “Donald Everette can sit here, and exchange his glasses as many times as he wants to, he can parade as many witnesses as he wants in front of you, to say that he is a truthful and peaceful man ***.” Defendant characterizes this remark as an improper, unfounded and prejudicial attempt to refute his self-defense theory by implying that he had no vision problems and was a liar. We disagree.

It is well established that a prosecutor is allowed wide latitude in closing arguments. (People v. Davis (1982), 104 Ill. App. 3d 512, 516, 432 N.E.2d 1134.) 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.) Parties have the right to comment on the evidence, to draw any legitimate inferences from the evidence, and to make inferences even if detrimental to defendant. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) A reviewing court will not disturb the trial court’s determination absent a clear abuse of discretion based upon the record as a whole and the arguments in their entirety. (People v. Perez (1983), 113 Ill. App. 3d 143, 149, 446 N.E.2d 1229.) The test employed to determine the existence of reversal error is whether the remarks of the prosecutor in closing arguments were such that, without their having been made, the jury might have reached a different result. Barnes, 117 Ill. App. 3d at 978.

The record reveals evidence regarding defendant’s limited vision. Defendant testified that he was legally blind and that he needed his eyeglasses to read a copy of the statement he had made to the police. Although the record does not include any specific reference to indicate that he “exchange[d] his glasses” with anyone, defendant raised the issue of his poor eyesight to support his self-defense theory. From this record we cannot say that the prosecutor exceeded the indisputably wide bounds permissible in closing arguments or that this short remark would have caused a different outcome.

Fourth, defendant contends that the characterization of defense counsel as a “hired gun” by the prosecutor during rebuttal argument constituted reversible error, relying on People v. Shaw (1981), 98 Ill. App. 3d 682, 424 N.E.2d 834. We find that the “hired gun” comment was improper but did not rise to the level of reversible error in this case.

The Shaw court found that the following remarks, inter alia, made by the State during closing arguments were improper:

“These defense lawyers are hired guns, they ***. They’re paid to do a job and they do it well. And they’re paid to do a job to mislead you, to confuse you, and that’s exactly what has happened here.” (Shaw, 98 Ill. App. 3d at 685.)

Nonetheless, the Shaw court refused to disturb the jury verdict on the basis of these comments because the evidence supported the guilty verdict and the trial judge promptly sustained objections to most of the improper remarks. See also People v. Perez (1983), 113 Ill. App. 3d 143, 149, 446 N.E.2d 1229 (the court held that any prejudice resulting from the prosecutor’s references to the defendant as a “hit man,” a “butcher,” and a “pusher” were cured when the trial court promptly sustained defense counsel’s objections).

In the present case, defendant challenges the following remarks made by the prosecutor during rebuttal argument:

“They [the defense] want you to think that Mr. Gerber [an Assistant Cook County State’s Attorney who interviewed defendant on the night of the shooting] is an adversary, that this is some kind of a card game that you get an adversary over here and a hired gun over here and you score points.”

Immediately following these remarks, defense counsel objected. The trial court sustained the objection and admonished the jury to disregard those remarks.

Although these remarks are not as provocative as in Shaw, we believe that the characterization of counsel as a “hired gun” is improper. However, we hold that these comments do not warrant a reversal because of the trial court’s immediate admonishments and the sufficient evidence of guilt.

Fifth, defendant maintains that the prosecutor miseharacterized the law by commenting during rebuttal argument that “self-defense is out of this case. It’s either there or murder.” Defendant argues that the evidence pointed to self defense. We find defendant’s contentions meritless.

During rebuttal argument, it is not improper for the State to respond to defense counsel’s closing argument. (People v. Smith (1984), 127 Ill. App. 3d 622, 469 N.E.2d 634; Weatherspoon, 63 Ill. App. 3d 315, 379 N.E.2d 847.) A defendant will not be allowed to claim prejudice where the prosecutor’s arguments during rebuttal are invited or provoked by remarks of defense counsel. (Perez, 113 Ill. App. 3d at 149.) Moreover, where the evidence of defendant’s guilt is overwhelming, any error which may have resulted from the prosecutor’s overzealousness in rebuttal is deemed harmless. Smith, 127 Ill. App. 3d 622, 469 N.E.2d 634.

The record reveals that during his closing argument defense counsel repeatedly argued that defendant acted in self-defense and thus his conduct was justified. During rebuttal the prosecutor argued that the evidence did not support a finding of self-defense. We believe that the allegedly improper remark was appropriate rebuttal, being in direct response to defense counsel’s self-defense argument.

We need not speculate on the cogency of the self-defense evidence since the Illinois Supreme Court definitively held that the evidence in this case was insufficient to support a finding of self-defense. Everette, 141 Ill. 2d 147, 565 N.E.2d 1295.

Lastly, defendant asserts that the 24-year sentence imposed is excessive and that he should have received the 20-year minimum sentence allowed by statute. We affirm the sentence imposed by the trial court.

Absent an abuse of discretion, a trial court’s sentencing decision may not be altered upon review, because the trial judge is in the best position to evaluate the myriad factors which comprise the sentencing decision. People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882; People v. Martin (1983), 112 Ill. App. 3d 486, 502, 445 N.E.2d 795.

The penalty for murder is mandated by statute. In 1985 when the victim was murdered and in 1987 when the trial judge imposed a 24-year term of imprisonment, the statutory penalty for murder ranged from a minimum of 20 years to a maximum of 40 years in prison. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1).) The current limits for a murder conviction provide that the term of imprisonment fall between 20 and 60 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(1).) Thus, the 24-year term of imprisonment imposed by the trial court in the present case clearly falls near the minimum sentence mandated under the statute.

Our review of the record reveals that the trial court fully complied with the statutory requirements, considered the evidence presented and the nature of the offense, and balanced the factors in mitigation and aggravation. On the basis of this record, we cannot conclude that the trial court abused its discretion in imposing a 24-year sentence.

Judgment affirmed.

Affirmed.

CERDA, P.J., and TULLY, J., concur.


author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT WILLIAMS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1515
    Opinion filed September 27, 1991.

      Blair, Russell & Cole, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Stephen Ferrucci, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, defendant Vincent Williams was convicted of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2 ) and attempted second degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8— 4(a), 9—2). Before the trial began, the State nol-prossed three counts of aggravated battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12—4.) Defendant received concurrent sentences of seven years’ imprisonment on the attempted second degree murder and 30 years’ imprisonment on the armed violence. On appeal, defendant asserts that (1) the armed violence conviction and sentence should be vacated because it arose from the same act as his conviction for attempted second degree murder; (2) the attempted second degree murder conviction is void under Illinois law; and (3) the second degree murder statute is unconstitutional because it improperly shifts the burden of proof onto the defendant.

On July 18, 1987, about 11:30 p.m., Illinois State Trooper Dennis Galle was in a service station at California and Diversey Avenues in Chicago. Galle, who was in full summer uniform, was preparing to leave the station when a car came screeching into the station with its horn blaring, and crashed into the side of the building. Hearing the driver yell for help, Galle approached the car on the driver’s side. When he was Sxk to 4 feet from the rear of the driver’s window, Galle looked into the car and asked, “What’s the problem here?” Galle then saw defendant, who was the passenger, raise a gun, lean forward in his seat, extend his arm in front of the driver, and fire the gun at Galle. As defendant raised the gun, Galle stepped back and turned to his left.

After the shot, Galle did not realize he was hit. He saw some movement inside the car, drew his gun, and shouted, “Hold it right there.” The driver, Nebkhepera Khuenaten, also known as Hru, handed the .38 caliber gun to Galle, who ordered both men out of the car and to lie facedown on the ground. By that time, Galle realized that he had been shot, and yelled to the people in the service station to call the police and an ambulance.

At that point, a passerby approached the trooper and offered his help. The trooper gave him a gun, and told him to stay with the two men and not to let them get away. Galle went to his squad car to radio for help. Within a few minutes, Chicago police arrived, took the gun from the passerby, and handcuffed defendant and Hru. Hru told one of the police officers there was another gun under the driver’s seat. Searching the car, the police found a loaded .22 caliber automatic gun. Hru was charged with unlawful use of weapons, but the charges were later dropped.

Galle was taken to the hospital, where he underwent surgery. Eventually, Galle underwent six operations, and returned to work one year later.

Police officer Thomas Bachelder, an evidence technician, testified that there was a bullet hole in the driver’s side front door through which a bullet entered from the inside and exited on the outside. Bachelder also stated that there was broken window glass inside the car and that the door rattled when moved. Detective Richard Schak testified that he determined through measurements that the bullet went from the front to the rear of the door. Richard Fournier, a Chicago police firearms examiner, testified that the bullet removed from Galle was fired from the .38 caliber gun removed from the crime scene.

Cesar Vargas, an employee at the service station, testified that, after the crash, he went outside toward the car. He saw the passenger raise a gun, extend his arm toward Galle’s waist, and shoot Galle as Galle stood near the driver’s side door.

Hru and defendant both testified to the events leading up to the shooting. They met in a gay bar approximately two weeks earlier. At that time, defendant explained to Hru that he was a hustler; that is, he was paid by homosexuals for relationships. That night, defendant and Hru agreed that Hru would pay defendant for talking together. No sexual relationship or friendship was contemplated. For approximately two weeks, defendant stayed at Hru’s home on and off, and returned to the gay bar at night to hustle money. On July 17, 1987, the two men agreed to not continue seeing each other, and Hru drove defendant back to Chicago.

From that point, the two men disagree about what occurred. Hru testified that he noticed his loaded .38 caliber gun was missing from his bedroom on July 18, 1987. That day, he drove to his parents’ home in Chicago, got a .22 caliber automatic gun from his brother, put it on the side of his car’s driver’s seat near the door, and drove to the gay bar about 11 p.m. There, he approached defendant and told him to stay away from his house. Hru testified that he was not actually kicking him out and would help defendant if he needed money. Hru stated that he previously had given defendant $80 to $100.

■ When Hru left the bar, defendant followed him to his car and asked for a ride to Kedzie and Belmont Avenues. The two men got into the car. Once they were on the Kennedy Expressway, Hru testified that defendant showed him the .38 caliber gun and said, “[Y]ou probably was [sic] looking for this.” Hru answered “yes.” Defendant then began yelling that Hru had dumped him and was just like everyone else, using him and other things. Hru pulled over to the side and tried to calm defendant. All of a sudden, defendant shot the gun at the driver’s side window. The window, which was partially raised, shattered. Defendant then told Hru to drive to Gary. Hru exited at Diversey Avenue. When he was at the stoplight at California and Diversey Avenues, Hru noticed a State Trooper’s car parked in front of a service station. Hollering out the window “help me” and blowing the horn, Hru stepped on the accelerator, sped toward the station, and ran into the side of the building.

As Hru saw Galle through the side view mirror, defendant took the gun, reached in front of Hru, and shot Galle through the window. Hru grabbed defendant’s wrist, and the two men wrestled. When Galle yelled “hold it right there,” defendant relaxed his grip on the gun. Hru took the gun and handed it to Galle. Both men got out of the car, lay facedown on the ground, and were later handcuffed.

Defendant testified that he went to Hru’s car on July 18, 1987, to talk. When he got to the car, defendant saw a gun on the front seat. Hru picked up the gun and told defendant to sit down before he did something he would regret. When defendant asked, “[W]hat, are you crazy[?]” Hru pointed the gun at defendant and cocked it. Defendant got into the car, and Hru began driving. On the expressway, Hru was yelling that defendant had dumped him and was like everyone else. At that time, the gun was in Hru’s lap, but defendant did not try to get it away from Hru. Defendant testified that he asked Hru to pull over, and Hru drove off the exit. Just before a stoplight, defendant grabbed the gun. Hru looked at defendant and stared at the gun. Then, he accelerated the car, and the car hit the side of the building.

Defendant hit his head on the windshield and fell back in the seat. The gun was at his right side between his leg and the door. When he lifted his arm about mid-stomach level, Hru jumped and grabbed defendant’s arm. To get Hru off of him, defendant thought about shooting Hru in the shoulder. Hru and defendant struggled, and the gun went off. Defendant did not know if he pulled the trigger, but his finger was on the trigger when it fired. Defendant did not see Galle and was not aiming at him. Defendant also testified that the shot was accidental while he was arguing with Hru. After the shot, Hru yelled “you shot a cop,” and defendant told him to shut up. Defendant then dropped the gun and got out of the car. Once outside the car, Galle told him to lie facedown on the ground, which he did.

The jury found defendant guilty of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2) and attempted second degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8—4(a), 9—2). After hearing aggravating and mitigating factors, the trial judge sentenced defendant to concurrent sentences of 30 years’ imprisonment on the armed violence and seven years’ imprisonment on attempted second degree murder.

On appeal, defendant contends that attempted second degree murder is void under Illinois law. The State agrees. The Illinois Supreme Court in People v. Reagan (1983), 99 Ill. 2d 238, ruled that there was no such crime as attempted voluntary manslaughter based on an imperfect self-defense. Although Reagan was decided under the former voluntary manslaughter statute, its rationale still applies. The former voluntary manslaughter statute (Ill. Rev. Stat. 1985, ch. 38, par. 9—2) and the present second degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9—2) are similar except for the burden of proof of the mitigating factor. Voluntary manslaughter required the State to prove the mitigating factor beyond a reasonable doubt while second degree murder requires the defendant to prove the mitigating factor by a preponderance of the evidence. Reagan held that attempted murder required proof that defendant intended to kill without lawful justification. (99 Ill. 2d at 240.) Attempted voluntary manslaughter, however, would require the defendant to specifically intend to kill with an unreasonable belief in the need to use deadly force in self-defense. (Reagan, 99 Ill. 2d at 240.) Since it is impossible to intend an unreasonable belief, the court ruled, attempted voluntary manslaughter based on imperfect self-defense did not exist. (Reagan, 99 Ill. 2d at 240.) Similarly, attempted second degree murder based on an imperfect self-defense does not exist. Therefore, defendant’s conviction for attempted second degree murder is vacated.

Although the Third District of the Appellate Court recently decided in People v. Moore (1990), 204 Ill. App. 3d 694, that attempted second degree murder based on sudden and intense passion does exist, that decision does not have any effect on this case.

Defendant also asserts that the second degree murder statute is unconstitutional because it improperly shifts the burden of proving the mitigating factor to the defendant. Because attempted second degree murder is not an offense in Illinois and defendant’s attempted second degree murder conviction is vacated, the issue is moot.

Defendant then argues that the armed violence conviction and sentence should be vacated because they arose from the same act as his conviction for attempted second degree murder. Where the same physical act constitutes two or more offenses, a conviction and sentence are proper on only the most serious of the offenses. (People v. King (1977), 66 Ill. 2d 551, 561.) Defendant would be correct and we would end our analysis here, except that defendant’s attempted second degree murder conviction is vacated. Since defendant’s only remaining conviction is for armed violence, his argument that he cannot be convicted of two crimes for the same act cannot stand. On that basis, defendant’s armed violence conviction is affirmed.

Defendant also argues, however, that his armed violence conviction must be vacated based on the implicit findings in his attempted second degree murder conviction. Armed violence does not apply to voluntary manslaughter convictions (People v. Alejos (1983), 97 Ill. 2d 502) or involuntary manslaughter convictions (People v. Fernetti (1984), 104 Ill. 2d 19). Even if the armed violence is predicated on the underlying offense of aggravated battery, the defendant cannot be convicted of armed violence when he is also convicted of voluntary manslaughter arising out of the same facts. (People v. Clay (1987), 165 Ill. App. 3d 68, 71.) Furthermore, the prosecution cannot avoid the effects of Alejos and Fernetti by charging defendant with armed violence predicated on aggravated battery and voluntary manslaughter, and receiving convictions on both charges. Clay, 165 Ill. App. 3d at 71.

Furthermore, defendant argues that the recent Illinois Supreme Court decision in People v. Drakeford (1990), 139 Ill. 2d 206, provides a separate and independent basis for vacating the armed violence conviction. Defendant contends that, based on the court’s rationale in Drakeford, the jury’s guilty verdict for attempted second degree murder is incompatible with an armed violence conviction.

Defendant maintains that the jury found that the evidence did not establish attempted first degree murder. Instead, they returned a guilty verdict on attempted second degree murder based on the mitigating factor of an actual, but unreasonable belief in his right to use deadly force. Defendant asserts that the only difference between this case and Drakeford is that the victim in Drakeford died. Defendant maintains that the underlying rationale, however, is applicable to this case. In both cases, a jury found the defendant’s conduct to be the result of an unreasonable belief in the right to use deadly force. The Drakeford court held that the armed violence statute did not apply under those circumstances. 139 Ill. 2d at 215.

The State attempts to distinguish Drakeford by contending that defendant here was charged with attempted first degree murder. The State maintains that throughout the trial, the evidence established that defendant’s actions were intentional and premeditated. If defendant had not been armed, the State argues, Galle would not have been injured or would have received less serious injuries. Therefore, the State concludes, the purpose of the armed violence statute in preventing more serious harm is properly served, and the Drakeford rationale does not apply.

What defendant was charged with, however, is irrelevant. Rejecting the State’s argument that defendant’s actions were intentional and premeditated, the jury did not find defendant guilty of attempted first degree murder. Instead, the jury found that defendant was acting under an actual, but unreasonable belief that he had the right to use deadly force. Furthermore, the defendant in Drakeford was also charged and tried for first degree murder, but convicted of second degree murder. (139 Ill. 2d at 209.) Like this case, the Drakeford jury found that the defendant’s conduct was unpremeditated, undeterable, and caused by an actual but unreasonable belief that the circumstances required the use of deadly force in self-defense. 139 Ill. 2d at 213-14.

Second degree murder is an unpremeditated crime, induced by sudden fear or duress, and committed without time for proper reflection. (Alejos, 97 Ill. 2d at 507.) Because second degree murder is committed with no planning and no prior intent to commit a crime, it is not as serious as a homicide, which comes from criminal deliberation or design, nor is it likely to be deterred by the threat of punishment as is a killing which results from planned criminal acts. Alejos, 97 Ill. 2d at 507.

Because the chances that violence will erupt and cause great bodily harm are increased when a felony is committed with a weapon, the armed violence punishment is intended to deter a criminal from carrying a weapon while committing a felony. (Alejos, 97 Ill. 2d at 508-09.) Someone who commits second degree murder, however, does not intend in advance to take a life or to use deadly force. (Alejos, 97 Ill. 2d at 509.) Instead, without deliberation and usually instantaneously, he decides to use force capable of killing. (Alejos, 97 Ill. 2d at 509.) Before that decision is made, the person guilty of second degree murder typically has no criminal intent at all. (Alejos, 97 Ill. 2d at 509.) The deterrent aspect of the armed violence statute, which is to prevent more serious harm when a felony is committed with a dangerous weapon, cannot be served when the defendant’s act is unpremeditated, as in second degree murder. Drakeford, 139 Ill. 2d at 213-14.

Defendant also relies on Drakeford to assert that the State cannot use the armed violence statute to enhance the penalty. Because the same intent or knowledge is required for convictions for both second degree murder and aggravated battery causing great bodily harm, the Drakeford court stated that the second degree murder statute would be nullified if the defendant was sentenced for both crimes. (139 Ill. 2d at 215-16.) Consequently, the court concluded that the defendant could not be sentenced for armed violence predicated on aggravated battery where there was a simultaneous conviction for second degree murder arising out of the same act. Drakeford, 139 Ill. 2d at 215-16.

In this case, however, the attempted second degree murder conviction is vacated. Therefore, there is only one conviction, which is for armed violence predicated on aggravated battery causing great bodily harm. Consequently, the Drakeford, Alejos, and Fernetti cases are not controlling.

Based on the foregoing, defendant’s conviction for attempted second degree murder is vacated and his conviction for armed violence is affirmed.

Vacated in part; affirmed in part.

RIZZI and GREIMAN, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY BUCKNER, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0762
    Opinion filed September 27, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Shelton O. Green, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Guy L. Miller IV, and John J. Kim, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

After a jury trial, defendant, Jerry Buckner, was convicted of the murder of Thomas LaCourt and was sentenced to 25 years in prison. On appeal, defendant argues that the jury was improperly instructed under People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, and that such error requires reversal and entitles him to a new trial. Defendant also complains of various trial errors. However, in deciding this appeal, it is necessary to consider only the claimed Reddick error.

The evidence is undisputed that on the afternoon of May 23, 1987, defendant stabbed and killed the deceased outside a building at 3606 W. Sunnyside in Chicago. Defendant maintained at trial that he acted in self-defense.

James Miller and Joseph Schultz testified as eyewitnesses for the State. Miller testified that while helping Victor Melendez, the building janitor, mow the lawn in front of the building, he saw the deceased staggering around drunk, then repeatedly throw a knife at an upper window of the building. After about 30 minutes, Miller saw Melendez take the knife from the deceased, break the blade and throw it into a garbage can which Miller subsequently moved to the side of the building near where the stabbing later occurred. About five minutes later, Miller saw the deceased motion toward an upper window and say “come on down” several times. The deceased entered the building and exited a few minutes later. Miller then saw defendant exit the building. Defendant approached the deceased, as the latter “back[ed] up out of the courtyard,” moving down the sidewalk to the rear of the building in the alley. Miller saw defendant “throw a right hook” at the deceased with a beer bottle in his hand. The deceased raised his closed hands to his face in response. Defendant then stabbed the deceased in the chest with a knife. Miller did not see a weapon in the deceased’s hands at the time of the stabbing. Miller did not know the deceased, nor had he seen him prior to that day.

Schultz, who lived directly across the street from the building, testified that he saw the deceased throw a knife up at an upper window of the building and scream, “I want you.” He then saw Melendez take the knife from the deceased, break it and discard it. Shortly thereafter, the deceased yelled up at the window again, motioning with his fist. Defendant came outside a few minutes later and approached the deceased. Defendant “charg[ed]” as the deceased backed up. Schultz saw the deceased “put up a defense” with his hands and arms, then saw defendant swing a beer bottle with one hand, and make a thrusting movement into the chest or stomach area with the other hand. Schultz watched defendant flee with a bloody 14-inch butcher knife in his hand. Schultz did not see the deceased with a weapon.

Detective John Boyle testified for the State that an evidence technician recovered a beer bottle from the scene, although Boyle himself did not see the bottle. Neither Miller nor Schultz told him that defendant had a beer bottle, nor did his written report mention a bottle. Boyle’s report indicated that Schultz told him the deceased punched defendant. Schultz later clarified this observation, characterizing the motion as more of a defensive motion than an offensive one.

Defendant testified on his own behalf that sometime after midnight on May 23, 1987, while socializing and drinking with others in the apartment of Theresa Cruz at 3606 W. Sunnyside, the deceased was cut on the hand during an argument. The deceased told defendant that he should be cut too, then swung a knife at defendant several times, cutting him on the shoulder. Defendant punched the deceased, then left the apartment. The deceased chased defendant with a knife, threatening him. Defendant ran several blocks to Diwanna Townsend’s apartment. Defendant testified that the deceased followed him there. The deceased beat on the door for about 10 minutes, threatening to kill defendant, then left. Defendant asked Townsend to call the police, and several minutes later a police car drove by but did not stop. After more than 30 minutes, defendant left to go home, taking a knife with him. As he walked to his home several blocks away, the deceased again came running after him with a knife. Defendant ran to Melendez’s apartment, where defendant remained for 15 to 20 minutes and received a bandage for his cut. Defendant and Melendez then went outside and picked up debris around the apartment building. Defendant stayed near Melendez because he feared that the deceased would threaten him again with the knife. Defendant then returned to Cruz’s apartment after being told that the deceased was not there. Once inside, the deceased began knocking on the door, but was not allowed to enter. The deceased returned to the front of the building and threw a knife up at the window several times and threatened defendant, saying, “I’m not through with you yet.” Defendant asked Cruz to call the police and asked Melendez to take the deceased away from the window. Defendant stated that Melendez took the knife from the deceased, broke it, threw it away and told the deceased to leave.

Defendant testified that he saw the deceased walk back into the courtyard, retrieve the knife blade from the garbage can and put it in his pocket. About 20 minutes later, defendant heard someone say that the police were coming, and he left the apartment. He saw a police car approaching and unsuccessfully tried to wave it down. The deceased said, “[H]e didn’t hear you. You might as well keep on running.” Defendant told the deceased that he was tired of running. According to defendant, the deceased walked toward him and defendant in response walked toward the deceased. Defendant stated that the deceased punched him in the face, pulled the blade from his pocket and charged at defendant. Defendant pulled his knife out to defend himself. Defendant denied that he was carrying a beer bottle at the time.

Diwanna Townsend testified for the defense that she lived across the street from the apartment building. She stated that on the morning in question, defendant knocked on the door and she let him enter. The deceased then beat on the door, threatening to kill defendant. Townsend called the police and gave defendant a towel for his wound. When they saw a police car driving by, they left the apartment and went downstairs, but the police car did not stop. Townsend saw the deceased in the street, beating on the ground with a stick and a knife, saying that he was going to kill defendant. Townsend and defendant returned to her apartment, and after about 20 minutes, defendant left to go home.

At the close of the trial, the trial judge instructed the jury on murder and voluntary manslaughter using Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 7.04 and 7.06 (2d ed. 1981)(hereinafter IPI Criminal 2d). The jury found defendant guilty of murder, and the trial court subsequently sentenced defendant to a 25-year prison term.

Defendant contends that the jury was improperly instructed in light of People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. Defendant offered the two voluntary manslaughter instructions, IPI Criminal 2d Nos. 7.04 and 7.06, which were given verbatim over the State’s objections. The State offered the murder instruction, IPI Criminal 2d No. 7.02, which was read verbatim without objection. Defendant did not allege erroneous instructions in his motion for a new trial.

In Reddick, our supreme court held that tendering these instructions together misstates the State’s burden of proof regarding the mental state necessary to reduce a murder charge to voluntary manslaughter. (Reddick, 123 Ill. 2d at 194, 526 N.E.2d at 145.) The Reddick court found that the voluntary manslaughter instructions, when read in conjunction with the murder instruction, fail to inform the jury that the burden to disprove the mitigating mental state rests upon the State. (Reddick, 123 Ill. 2d at 197, 526 N.E.2d at 146.) The Reddick court held that the instructions constituted grave error, requiring reversal even though defendants failed to object to the instructions or raise the issue on post-trial motion.

Defendant here urges us to follow Reddick, reverse his conviction and grant a new trial in which the jury may be properly instructed or, alternatively, reduce his conviction to voluntary manslaughter. The State counters that defendant waived the Reddick issue by not raising it in a post-trial motion and further that defendant cannot now contest these instructions because he himself offered them. Additionally, the State claims that defendant waived objection because he tendered these erroneous instructions six months after Reddick was decided. In the alternative, the State maintains that any instructional error was harmless in light of the overwhelming evidence against defendant.

Initially, we reject the State’s various arguments that defendant waived objection to the erroneous instructions. In Reddick, neither defendant objected to the instructions or raised it in post-trial motion and one defendant did not even raise the issue on appeal. The Reddick court rejected the waiver argument, stating that because instructions on the burden of proof and elements of the offense are essential to a fair trial, failure to give such proper instructions constitutes grave error when the jury is not apprised of the State’s burden of proof. (Reddick, 123 Ill. 2d at 198-99, 526 N.E.2d at 147.) Recently, in reviewing four consolidated cases involving Reddick errors, our supreme court again refused to apply the waiver rule even though all four defendants failed to object to the improper jury instructions, offer correct instructions or to raise the issue in a post-trial motion. People v. Shields (1991), 143 Ill. 2d 435.

Nor did defendant waive objection to these instructions by tendering them. Although a defendant who tenders instructions generally waives error in the instruction for purposes of appeal (People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972), the plain error rule applies to constitutional errors which may deny a defendant a fair trial. Because Reddick involves a constitutional error (People v. Shields, 143 Ill. 2d at 446, the plain error rule permits us to review this case.

We also reject the State’s claim that defendant waived this issue because he requested these instructions more than six months after Reddick was handed down and, therefore, knew that they were defective. The instructional errors at issue here concern burden of proof and elements of the offense which are essential to a fair trial. (People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141.) In view of the Reddick holding that these instructions constituted grave error, we decline to treat the issue as waived even though this trial occurred after Reddick was handed down. We believe that the erroneous instructions are substantial defects and the interests of justice require us to consider this question under the grave error exception to Supreme Court Rule 451(c). 134 Ill. 2d R. 451(c); People v. Daniel (1989), 191 Ill. App. 3d 837, 548 N.E.2d 354.

Although Reddick errors do not invariably mandate reversal or retrial (People v. Shields, 143 Ill. 2d at 446), constitutional errors must be shown to be harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) Indeed, our supreme court has recognized that errors under Reddick may be harmless in appropriate cases. (See People v. Shields, 143 Ill. 2d at 446-47; People v. Austin (1989), 133 Ill. 2d 118, 123-24, 549 N.E.2d 331, 333; People v. Harris (1989), 132 Ill. 2d 366, 395, 547 N.E.2d 1241, 1254.) In order for an alleged constitutional error to be considered harmless, however, the State must show that the outcome of the trial would have been the same with the proper instruction. People v. Fierer, 124 Ill. 2d 176, 529 N.E.2d 972.

From our review of the record, we conclude that the use of the pattern jury instructions in this case constituted plain error. The evidence presented at trial in favor of the State was not overwhelming. The defense offered extensive testimony in support of defendant’s assertion that he believed, however unreasonably, that he was justified in killing the deceased. This evidence included defendant’s testimony that the deceased: repeatedly threatened to kill defendant; chased him carrying a knife from 3606 Sunnyside to Townsend’s apartment, then to Melendez’s apartment; and cut defendant with a knife several hours prior to the stabbing. Much of defendant’s testimony was corroborated by Townsend, including the testimony that defendant sought the aid of the police. Prosecution witnesses corroborated defendant’s testimony that the deceased was inebriated and that defendant had been injured. Although Miller and Schultz did not see a weapon on the deceased immediately prior to the stabbing, both witnesses saw him throw a knife at the window about one hour earlier. Further, even though Melendez broke and discarded the knife, the evidence indicates that he did so in the deceased’s presence. Finally, defendant testified that he saw the deceased retrieve the knife. Even though a weapon was not found on the deceased, a properly instructed jury might have concluded, in light of the testimony presented at trial, that defendant feared for his safety and believed that the use of force was necessary to prevent death or serious harm to himself. Because the evidence was not overwhelming, we cannot conclude beyond a reasonable doubt that the erroneous jury instructions did not affect the jury’s deliberations. Nor can we say that a properly instructed jury could not have concluded that defendant believed he needed to use force to defend himself, whether or not that belief was reasonable.

The State maintains that defendant failed to present sufficient evidence to justify voluntary manslaughter instructions, relying on People v. Austin, 133 Ill. 2d 118, 549 N.E.2d 331, People v. Daniel, 191 Ill. App. 3d 837, 548 N.E.2d 354, People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531, and People v. Skipper (1988), 177 Ill. App. 3d 684, 533 N.E.2d 44. Our review of these cases, however, indicates that they are factually distinguishable from the present case.

In People v. Austin, our supreme court concluded that defendant failed to produce evidence that he objectively feared for his life and, therefore, that the Reddick error was harmless beyond a reasonable doubt. There, the unarmed victim provoked defendant by engaging in a “fairly even” fistfight for 30 or 40 seconds. Here, by contrast, the evidence suggests that the deceased, while armed with a knife, pursued and threatened defendant for several hours. In People v. Daniel, this court ruled that the error was harmless because the State overwhelmingly proved defendant guilty of murder. Unlike here, the victim in Daniel never threatened defendant physically or verbally. Moreover, unlike in the present case, both defendant and a witness stated that they never saw a gun on the victim. In People v. Skipper, this court concluded that the evidence failed to indicate the justifiable use of force. There, the victim hit defendant in the face with a newspaper, then ran away. Defendant chased the victim with a knife. The court noted that the victim did not threaten defendant’s life by hitting him with the newspaper and there was no need for defendant to chase the victim and use deadly force against him. In People v. Carter, this court held that the Reddick error was harmless beyond a reasonable doubt, concluding that defendant could not have feared for his life, either reasonably or unreasonably based upon the following: there was no evidence that the victim injured defendant; the victim was unarmed; and defendant was physically larger than the victim, whom he stabbed four times. In this case, the victim swung a knife at defendant several times and inflicted a wound on his shoulder. Moreover, unlike Carter, the evidence here indicates that the victim carried a knife prior to the stabbing. In sum, these cases are factually distinguishable from the present case and do not allow us to find the Reddick error harmless beyond a reasonable doubt.

In light of our conclusion, we need not consider the remaining issues raised by defendant.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for a new trial in accordance with the holdings of this opinion.

Reversed and remanded.

EGAN and LaPORTA, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT RILEY, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—3492
    Opinion filed September 27, 1991.
    Randolph N. Stone, Public Defender, of Chicago (Joseph M. Gump and Robert Guch, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenney, and Theresa Harney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Robert Riley, pleaded guilty to murder on October 30, 1990, and was sentenced to a 20-year term of imprisonment. Twenty-eight days later, defendant filed a pro se motion to withdraw his guilty plea and vacate judgment and mailed a copy to the trial judge, as indicated by the certificate of service attached to the motion. On the same day, defendant also filed a notice of appeal, a motion for reduction of sentence and a motion for transcripts and common law record. The trial court never considered or conducted a hearing on defendant’s motion to withdraw his plea; instead, the record on appeal was prepared and the case was set on this court’s calendar. Defendant asks us to remand this cause to the trial court for a hearing on his motion to withdraw his guilty plea and vacate judgment. The State asserts that we should dismiss this cause without remandment because the trial court never disposed of defendant’s motion to withdraw the plea, and defendant thus failed to comply with Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)).

Supreme Court Rule 604(d) directs that a defendant may not appeal from a judgment entered upon a guilty plea unless he files a motion to withdraw the plea and vacate the judgment within 30 days of sentencing. The motion must be “presented promptly” to the trial judge, who must “promptly” hear the motion. If the trial court denies the motion, the rule requires a defendant to file a notice of appeal within 30 days of the denial to preserve his right to appeal. A defendant’s failure to file a Rule 604(d) motion is a jurisdictional defect which precludes this court from considering an appeal unless the defendant was not properly admonished pursuant to Supreme Court Rule 605(b). 134 Ill. 2d R. 605(b); People v. Lundeen (1977), 55 Ill. App. 3d 799, 371 N.E.2d 329.

We find People v. Howard (1982), 107 Ill. App. 3d 936, 438 N.E.2d 580, dispositive of this issue. In Howard, pro se defendant pleaded guilty and was sentenced. Although the trial court advised defendant that he must file a motion to vacate his guilty plea before he filed a notice of appeal, defendant filed both motions contemporaneously. The trial court did not conduct a hearing on the motion to withdraw. On appeal, this court remanded the cause to allow defendant to file a motion to withdraw in accordance with Supreme Court Rule 604(d), noting that defendant tried to comply with the trial court’s admonitions but failed due to “possible confusion.” (Howard, 107 Ill. App. 3d at 938, 438 N.E.2d at 581.) As in Howard, the record reveals that defendant here tried to comply with the trial court’s admonition, but because of some confusion, he filed his pro se notice of appeal at the same time as his motion to withdraw his guilty plea. The trial court in the present case advised defendant as follows:

“You have a right to appeal. If you decide to do so file your written motion of this court within 30 days of the date of sentence.
You can ask all these orders be vacated and for leave to withdraw your plea of guilty, setting forward the reasons why the court should allow it on the plea. If the court allows the judgment sentence — all proceedings will be vacated.”

This admonishment did not inform defendant, as required by Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)(2)), that he must file his motion to withdraw plea before taking an appeal, but rather implied that the notice of appeal itself must be filed within 30 days of sentencing. Given this potentially confusing instruction and the fact that defendant was not represented by counsel when he filed his motion to withdraw and his notice of appeal, under Howard we believe that defendant should be allowed to have the trial court rule on his motion to withdraw the plea.

Relying on People v. Gambill (1980), 91 Ill. App. 3d 302, 414 N.E.2d 859, the State asserts that we should dismiss this appeal without remandment because the trial court never ruled on defendant’s motion to withdraw the plea, and defendant thus failed to substantially comply with Supreme Court Rule 604(d). In Gambill, defendant pleaded guilty and was sentenced to five years’ probation. More than a year later, defendant’s probation was revoked and he was sentenced to two years’ imprisonment. At the sentencing hearing, the trial court admonished defendant and his retained counsel of their duty to file a motion to withdraw the plea pursuant to Rule 604(d). Within 30 days of sentencing, defendant filed a motion to withdraw the guilty plea and vacate judgment. On the same day, defendant filed his notice of appeal. No hearing was conducted, nor ruling made, on defendant’s motion to withdraw the plea. This court concluded that defendant’s failure to obtain a ruling on the motion before proceeding on appeal constituted substantial noncompliance with Rule 604(d). The court therefore dismissed the appeal.

We find Gambill distinguishable because the defendant and his counsel were properly admonished so that there could be no confusion. To the extent that Howard and Gambill are in conflict, we believe that the Howard court equitably balanced the defendant’s interest in presenting his grievances and the supreme court’s jurisdiction requirements. We find such approach fair and reasonable.

We therefore remand this cause to allow defendant to file a proper motion to withdraw the plea, if he desires, in conformity with Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)).

Cause remanded with directions.

RAKOWSKI, P.J., and EGAN, J., concur.


author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD SKINNER, Defendant-Appellant.
    First District (1st Division)
    Nos. 1—88—0004, 1—89—3006 cons.
    Opinion filed September 30, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Shelton O. Green, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Ado L. Rugai, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

After a bench trial, defendant Reginald Skinner was convicted of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19—3) and sentenced to 7½ years’ imprisonment. Subsequently, defendant filed a petition for post-conviction relief alleging ineffective assistance of counsel which the circuit court dismissed without holding an evidentiary hearing. Defendant appeals his conviction, alleging: (1) he was not proven guilty beyond a reasonable doubt; (2) the court erred in considering evidence that should have been suppressed as the fruit of an illegal arrest; (3) defendant was denied effective assistance of counsel; and (4) he is entitled to a new sentencing hearing because of prosecutorial misconduct dining the hearing. Defendant separately appeals the court’s dismissal of his petition for post-conviction relief, alleging that an evidentiary hearing was required where the parties’ affidavits contained factual conflicts regarding counsel’s effectiveness. For the reasons that follow, we reverse and remand for a new trial.

Prior to trial, defendant moved to quash his arrest and to suppress his post-arrest statements to the police. This motion was heard simultaneously with the trial on the merits. The record reflects the following evidence regarding these proceedings.

Joanna Powell testified that on August 20, 1986, she left her residence at 245 West 109th Place in Chicago for work. She departed in the early morning hours and secured the household by locking the doors and bolting the windows. Inside the residence, she had several items of personal property, including 19-inch and 13-inch televisions. Upon her return home from work that evening, she found that her home had been burglarized. She noticed an opening cut in the bathroom floor where the heat vent was located. Upon further inspection, she realized that the basement window had been broken as glass, bars and pieces of wood from the window frame were strewn on the basement floor. Powell testified that on March 19, 1987, she identified her 19-inch television set at the police station because of identification markings she had placed upon it.

James Williams testified that on August 20, 1986, he lived next door to Joanna Powell at 249 West 109th Place in Chicago. At approximately 10 a.m. that morning, Williams saw defendant emerge from the basement window of Powell’s home carrying a television set. Williams testified that defendant exited from the window back first, put the television down, then turned and began to carry the set. Williams saw defendant face to face for about 15 seconds from a distance of approximately 15 feet. Williams had an unobstructed view and had seen defendant on prior occasions since his two uncles were married to defendant’s sisters.

Tia Powell, Joanna Powell’s daughter, testified that on March 19, 1987, she observed a man carrying a television set attempting to sell it to a person named Christopher. She recognized the set as her mother’s television. After hearing a conversation between the two, Tia Powell went home and called the police. She and the police located Christopher and thereafter went to a house at 11010 South Wentworth in Chicago. Shortly after entering the basement apartment with the police, she identified her mother’s television set. Powell testified that defendant was present in the basement along with a person she knew as Haywood Burnside. She identified defendant in court as the person she had seen earlier attempting to sell the television set.

Detective John Gorman of the Chicago police department testified that he and his partner, Michael Ferguson, were assigned to Tia Powell’s call for assistance. After a conversation with her, they went to the area of 110th Street and Wentworth, where they were told that defendant was in the basement. After knocking on the door, identifying himself as a police officer and explaining his purpose, defendant permitted Gorman to enter. In the apartment were two televisions; Gorman testified that defendant stated that the sets were his and that he resided in the apartment. Tia Powell then identified one of the sets as her mother’s. Defendant and the television were then taken to the police station. Gorman stated that while defendant was being processed, he gave 11010 South Wentworth as his address. Later, Gorman took a photograph of defendant to Williams, the eyewitness to the burglary.

Defendant testified in his own behalf. He stated that he was employed in the building repair business and earned $600 per week. He did not know the name of the company for which he worked but stated that he worked for a man named Johnson. On March 19, 1987, he received a call from Hanna Banks of 11010 South Wentworth Avenue to fix a pipe located in the basement apartment. According to defendant, the apartment belonged to Haywood Burnside. While fixing the broken pipes, the police came to the door. Defendant stated that the police officers did not identify themselves or state their purpose nor did they produce a search warrant. Defendant allowed the police to enter after they had broken the bars to the door entrance. Once inside, defendant claimed that the police struck him in the stomach and handcuffed him to a pipe. Tia Powell then entered the basement apartment and said, “That’s Haywood Burnside that they saw him climbing through the window.” Defendant was arrested and taken out of the basement. Defendant denied living in the residence where he was arrested, denied telling the police that he lived there, and denied having or attempting to sell the television in question. Defendant stated that he knew James Williams through the marriage of two of his family members but that their families did not get along.

In rebuttal, the State called Detective Michael Ferguson. His testimony corroborated Detective Gorman’s. The State in rebuttal submitted certified copies of defendant’s conviction for three prior burglaries.

At the close of the evidence, the circuit court granted defendant’s motion to quash his arrest. The court believed that, as a matter of law, defendant’s “possession of [a] contraband television set, six months after the event, *** in of itself does not constitute cause to make an arrest.” The State has not appealed this ruling. The court further held that Tia Powell’s identification of the television set and defendant in the basement occurred prior to the arrest. Accordingly, the court refused to suppress Tia Powell’s testimony on these matters. Although the record is not entirely clear, and notwithstanding the quashing of defendant’s arrest, the court apparently refused to quash defendant’s post-arrest statement to the police in which defendant gave his home address as the place of his arrest, reasoning that defendant “made no statement significant [which was] considered during the course of trial.”

On June 14, 1989, defendant filed a petition for post-conviction relief. This petition alleged that defendant was denied effective assistance of counsel at trial and included the affidavits of his mother and stepfather, his employer, Herbert Johnson, and a copy of a police report relating to the investigation of the burglary. The State filed a motion to dismiss the petition supported by the prosecutor’s affidavit. The court granted the State’s motion to dismiss without conducting an evidentiary hearing on the merits of the petition.

The dispositive issue on appeal relates to defendant’s assertion that he was denied effective assistance of counsel. On appeal and again in his post-conviction relief petition, defendant directs this court to the following trial errors made by defense counsel: (1) counsel’s failure to cross-examine James Williams on Williams’ failure to inform the police until six months after the burglary, rather than on the day of the burglary when the police first spoke with him, that it was defendant whom he saw exiting from Joanna Powell’s home; (2) counsel’s failure to call defendant’s mother and stepfather, who would testify that defendant lived with them at 203 West 110th Place on the day of his arrest, rather than at 11010 South Wentworth, the place of arrest; and (3) counsel’s failure to call defendant’s employer, who would corroborate that defendant worked for him on the day of the burglary.

In reviewing an ineffective assistance of counsel claim, we are mindful that our review is governed by Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and Illinois’ adoption of Strickland in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061. These cases recognize that to succeed on such a claim, a defendant must establish that (1) counsel’s performance was seriously deficient, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) In evaluating the performance factor, a defendant must also overcome the strong presumption that counsel’s conduct fell within a wide range of reasonable professional assistance and that the challenged conduct might have been nothing more than part of counsel’s sound trial strategy. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) In the end, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 980 L. Ed. 2d at 692-93, 104 S. Ct. at 2064.

In this case, we find that the Strickland tests have been met. As more fully explained, we believe that, while sound trial strategy protects counsel’s decision to not call defendant’s employer, counsel’s failure to (1) call defendant’s mother and stepfather, and (2) cross-examine Williams regarding Williams’ post-theft silence constituted ineffective assistance of counsel which, when combined, created a reasonable probability that the result of the proceedings would have been different had these omissions not occurred.

In support of the error regarding the cross-examination of James Williams, defendant directs this court to the police report completed by the officers called to the burglary scene. Defendant notes that the report lists Williams’ name as a witness but shows that Williams gave no information whatsoever to the police regarding the burglary. Defendant contends that it was ineffective assistance of counsel to not cross-examine Williams on his failure to identify defendant as the perpetrator of the burglary until six months after its occurrence. Defendant contends that counsel’s failure to expose this information substantially prejudiced his defense because the trier of fact would seriously question Williams’ credibility in light of this delay. We agree.

The record reflects that Williams testified that he had a clear and unobstructed view of defendant as he exited the neighboring building carrying the television set in question. On cross-examination, counsel only repeated portions of the direct examination and otherwise attempted no impeachment. We agree with defendant that counsel’s failure to not attempt any impeachment using Williams’ post-theft silence was ineffective assistance of counsel. See People v. Garza (1989), 180 Ill. App. 3d 263, 535 N.E.2d 968 (failure to impeach sole eyewitness with major discrepancies in description of assassin held to be ineffective assistance of counsel).

The State responds that counsel’s decision not to impeach Williams was sound trial strategy where Williams would further testify that his post-theft silence was motivated by the fact that defendant was a family member and that the family would handle the situation. We disagree. First, it is unclear from counsel’s affidavit whether this proffered trial strategy was developed before trial or whether it is a convenient post-trial excuse offered to contest defendant’s charge of ineffective assistance of counsel. If it is indeed the latter, counsel’s failure to fully investigate the facts makes his representation even more deficient. Garza, 180 Ill. App. 3d 263, 535 N.E.2d 968; People v. Bell (1987), 152 Ill. App. 3d 1007, 505 N.E.2d 365.

Second, the suggested rehabilitative testimony is weakened by the fact that Williams obviously had a change of heart and not only identified defendant, but testified against him in court. It is further weakened by Williams’ testimony that his family did not get along with defendant’s. If indeed the families did not get along, than Williams had little motivation to protect defendant.

Third, it was for the trier of fact to decide what weight to give Williams’ testimony in light of the impeachment evidence. Without the impeachment, the trier of fact heard an uncontradicted eyewitness’ account of the burglary which clearly implicated defendant as the perpetrator. To not bring before the jury such fruitful impeachment evidence operated to give Williams significantly more credibility than he deserved. In our opinion, while this omission alone may not have affected the outcome of the proceedings, and thus not require reversal under Strickland, the combination of this error with the one we next address clearly operated to undermine the outcome of the proceedings.

Turning to counsel’s failure to call defendant’s mother and stepfather, their affidavits show that on the day of defendant’s arrest, defendant resided with them at 203 West 110th Place. Defendant contends that counsel should have called these witnesses, for their testimony would both (1) contradict defendant’s alleged statement to the police that he resided where arrested, and (2) corroborate defendant’s testimony that he lived with them on the day of his arrest.

We believe that counsel’s failure to call defendant’s mother and stepfather is even more serious than counsel’s failure to cross-examine Williams. Defendant testified that he did not reside where arrested. As defendant notes, the testimony of his mother and stepfather would have corroborated his testimony and contradicted the police officers’ testimony that defendant told the police that he lived where arrested. As the case was presented to the jury, the jury had no corroboration of defendant’s testimony. We have held the failure to call witnesses who would support an otherwise uncorroborated defense to be ineffective assistance of counsel. (See People v. O’Banner (1991), 215 Ill. App. 3d 778 (and cases cited therein).) We so hold again here.

We also reject counsel’s argument that his decision to not call these witnesses was protected as trial strategy. Counsel argues that, because defendant’s pretrial motions to quash and suppress were heard contemporaneously with the trial, he had a legitimate concern that defendant would lose his standing to assert a reasonable expectation of privacy in the place of arrest if, as these witnesses would testify, defendant did not live there. We disagree.

Initially, we note that the record is not clear whether counsel ever contacted these witnesses prior to trial. Again, if indeed these witnesses were not contacted before trial, counsel’s assistance is all the more ineffective. More importantly, counsel’s theory ignores defendant’s own testimony that he did not live where arrested. Moreover, defendant’s motion to quash his arrest was predicated on the lack of probable cause; a defendant does not lose standing to assert this motion merely because he was not arrested at his home. Thus, counsel’s failure to call defendant’s mother and stepfather is not protected as sound trial stratagem.

As for counsel’s failure to call defendant’s employer, the employer’s affidavit shows that counsel never contacted him prior to trial, that he was available and willing to testify, that he employed defendant as a handyman, and that defendant was sent to various apartments to perform repairs. Counsel’s affidavit in response states that he contacted Johnson twice and was informed that Johnson would not testify that defendant was working for him on the day of defendant’s arrest or that defendant was at a job to which Johnson had sent him.

We believe that counsel's failure to call defendant’s employer is protected under Strickland as sound trial strategy. Although the employer’s affidavit and defense counsel’s affidavit conflict as to whether the employer was contacted prior to trial, the failure to contact the employer has meaning under Strickland only if the employer’s testimony would support defendant’s claimed innocence. In other words, it is sound trial strategy to not call a witness where the testimony would only hurt the defense. People v. Lewis (1984), 105 Ill. 2d 226, 248, 473 N.E.2d 901, 911, cert. denied (1985), 474 U.S. 865, 88 L. Ed. 2d 153, 106 S. Ct. 184.

Here, the employer’s affidavit reveals only that defendant worked for him and that defendant was sent to various apartments to perform repairs. Significantly, the affidavit does not state that, on the day of defendant’s arrest, the employer sent defendant to 11010 South Wentworth, the place of arrest. Indeed, defense counsel’s affidavit states that he contacted Johnson, and Johnson would not testify that on the day of defendant’s arrest, defendant was working for him or that he had sent defendant out on a job. Clearly, if the State were to bring this latter testimony out on cross-examination, Johnson’s testimony would not only be meaningless to the defense, but would also hurt defendant’s case. Accordingly, Strickland protects counsel’s refusal to call defendant’s employer.

In summary, we believe defendant was denied effective assistance of counsel. Counsel’s representation fell below an objective standard of reasonableness and, but for counsel’s errors, there is a reasonable probability that the result of the proceedings would have been different. We therefore reverse and remand for a new trial.

For purposes of remand, we also address whether the court erred in not granting defendant’s motion to suppress his post-arrest statement to the police that his home address was the place of his arrest. During trial, Detective Gorman, in the State’s case in chief, and Detective Ferguson, in rebuttal, testified that defendant told them in his post-arrest processing that 11010 South Wentworth was his residence. Defendant denied admitting this address to the police during his testimony. At the close of the evidence, although the court granted defendant’s motion to quash his arrest, the court ruled that any post-arrest statement was admissible because any such statement was not indicative of defendant’s guilt. Defendant contends that because this statement was the fruit of his illegal arrest, the court erred in using it as substantive evidence of his guilt. We agree.

The State offers no grounds independent of the illegal arrest to admit defendant’s statement, and the record reveals no such grounds. The statement in question was given to the police during defendant’s post-arrest processing. Given the time proximity between the making of the statement and the illegal arrest, the statement should have been suppressed. All evidence directly traceable to an arrest made without probable cause must be suppressed when there are no intervening events to break the connection between the illegal detention and the evidence obtained as a result. People v. Ealy (1986), 146 Ill. App. 3d 557, 497 N.E.2d 101, cert. denied (1987), 479 U.S. 1066, 93 L. Ed. 2d 1002, 107 S. Ct. 954; People v. Hornal (1975), 29 Ill. App. 3d 308, 330 N.E.2d 225.

We also reject the court’s premise for its ruling that the statement is not indicative of defendant’s guilt. While the exclusive and unexplained possession of recently stolen property is insufficient, standing alone, to prove burglary beyond a reasonable doubt, it may be used with other corroborating evidence of guilt to support a conviction. (People v. Jones (1985), 105 Ill. 2d 342, 358, 475 N.E.2d 832, 839; People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160.) Here, defendant’s post-arrest statement that he resided where arrested gives him the exclusive and unexplained possession of recently stolen property. Given that other corroborating evidence exists to connect defendant with the burglary, defendant’s post-arrest statements should be suppressed. While we recognize defendant allegedly made a similar statement to the police prior to his arrest, defendant is nevertheless entitled to the suppression of all evidence which is the product of his illegal arrest.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for a new trial. In light of our disposition, we do not address the other arguments defendant raises in this appeal.

Reversed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.