author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARLO PERRY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—3419
    Opinion filed May 9, 1989.
    — Rehearing denied June 14, 1989.
    — Modified opinion filed June 20,1989.

      Randolph N. Stone, Public Defender, of Chicago (Millicent Willis and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Joseph G. Howard, and Brian T. Sexton, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant, Arlo Perry, of the murder of Tyrone Crosby, and he was sentenced to 34 years’ imprisonment. The defendant seeks a new trial because of alleged incompetency of counsel and various trial errors. No issue is made of the sufficiency of the evidence.

Bernard Fisher was a friend of the deceased, Tyrone Crosby, and had known the defendant, whom he called Otto, from seeing him in the neighborhood “just about every day ” for more than 10 years. On November 22, 1986, at about 6:30 p.m., Fisher left Crosby’s apartment at Champlain Avenue between 49th and 50th Streets in Chicago with Crosby and Tommy Jones. They had shared a pint of wine and a marijuana cigarette. They went to a tavern on 50th Street. Fisher left the tavern to meet his girlfriend Gloria Cox at the home of Joanne Mack at 49th and St. Lawrence. That home was on the west side of St. Lawrence and faced a vacant lot across the street. He and Cox were talking. (Fisher said that he had the conversation with Cox on the front porch of Mack’s home. Cox later testified that the conversation took place on the street in front of Mack’s home.) Cox saw Crosby come out of a liquor store at 50th and St. Lawrence and yell something to her. She saw Crosby walk towards 59th Street with another black man whom she did not know. She continued to talk to Fisher and then heard what sounded like firecrackers. At the time she was facing Fisher and had her back to the vacant lot. Fisher ran across the street toward the lot, and she ran after him. Fisher ran across another lot, and again she ran after him. She ran over Crosby’s body in the lot. He was lying on his back about three feet from the alley. She did not know the defendant.

Fisher testified that as he was talking to Cox, he saw Crosby and the defendant going through the vacant lot which runs all the way from Champlain to St. Lawrence. He was on St. Lawrence and could see all the way to Champlain. He heard a gunshot come from the vacant lot. He noticed the defendant standing in the lot, but he no longer saw Crosby. The defendant had a gun in his hand and fired three or four rounds while pointing the gun at the ground. The defendant then ran towards Champlain.

Fisher testified to the same circumstances of the discovery of Crosby’s body as had Cox. He saw Crosby’s body after Cox found it and noticed a hole in the middle of Crosby’s forehead. Crosby was still alive and was trying to say something; his eyes were open. The body was at the exact spot at which Fisher had seen the defendant firing the gun. After the police arrived Fisher told them what he had seen. He later searched the area and saw the defendant hiding in another vacant lot looking back towards the officers. Fisher returned to the police and told them where he had seen the defendant. The police searched for the defendant but were unable to find him. After the killing, Fisher did not see the defendant in the neighborhood again. An autopsy of Crosby’s body disclosed five through and through bullet wounds.

The police and Fisher then went to a woman’s home in a nearby apartment building where the defendant reportedly had been seen entering a basement apartment, but the defendant was not there. That night Detective Guy Habiak interviewed both Fisher and Cox at Area 1 Headquarters. Fisher provided the name Otto Perry as the person who had done the shooting and gave his address at 4943 South Champlain. He also identified the defendant’s picture from a group of five photos. After subsequent questioning in the area turned up no information regarding the whereabouts of the defendant, Habiak obtained an arrest warrant. On December 6, 1985, he placed the defendant’s photograph in the Daily Bulletin for police officers. The defendant was subsequently arrested on June 19, 1986, in the same neighborhood in which the shooting took place.

The defendant initially claims that his attorney was incompetent, and his argument is advanced in two stages: first, he contends that the attorney must have been incompetent because he had pending certain disciplinary proceedings at the time of trial and, therefore, was so preoccupied with his own problems he could not have devoted his abilities and energies for the benefit of the defendant to the degree required. (The attorney was subsequently disbarred. (In re Levin (1987), 118 Ill. 2d 77, 514 N.E.2d 174).) Second, he points to various alleged errors on the part of the attorney to illustrate his incompetence.

The question of the pending proceedings against the defendant’s attorney was first brought up by the judge before the trial began. He informed the defendant’s attorney that the defendant should be apprised of the pending proceedings. After conferring with the defendant the attorney returned to open court "with the defendant, and the following occurred:

“MR. LEVIN [Defense Attorney]: I have explained to him the situation. He has indicated to me that he wants me to continue in the representation, that he is ready for jury selection at this time.
THE COURT: What you explained to him, without any details, dealt with what?
MR. LEVIN: The disciplinary proceedings pertaining against me and the ramifications of that.
THE COURT: They have nothing to do with your competence as a lawyer?
MR. LEVIN: They have nothing to do with this case.
THE COURT: I mean they do not have anything to do with your competence to represent him?
MR. LEVIN: Correct.
* * *
STATE’S ATTORNEY: Just for purposes of the record, I think the client himself has to indicate in his own words that he understands the problem.
THE COURT: Yes. I think that is probably right. Do you understand, Mr. Perry, I mean?
THE DEFENDANT: Yeah. I understand what he was saying. Yeah. Actions against him, and it does not affect my case in no kind of way.
THE COURT: It does not affect his ability as a lawyer. It is just something completely aside?
THE DEFENDANT: Right.
THE COURT: They have sometimes held, and what I was talking about before is, where a lawyer has something like that pending against him that he could be so occupied and concerned with it that he could not devote his attention to the case at hand. You do not believe that to be the case, is that correct?
THE DEFENDANT: I believe he can represent me.”

The defendant now argues that the record does not demonstrate that he was told the nature or extent of the disciplinary proceedings. In effect, the defendant urges us to assume, in the absence of any evidence, that he was not fully apprised of the disciplinary proceedings against his attorney. That is an assumption we are unwilling to make. Contrary to the defendant’s views, we do not believe the action taken by the judge was a “sham”; and we do not see anything blameworthy in a judge’s efforts to avoid grounds for reversal.

By answering this argument, we do not concede that a trial judge is under an obligation to conduct a hearing whenever he learns that some disciplinary proceedings are pending against a lawyer representing a defendant charged with a crime. But to make our position clear for future cases, we will assume that the defendant was not given more than the bare information that his lawyer had some disciplinary problems.

Implicit in the defendant’s argument is the premise that the law imposes an obligation on a trial judge to inform a defendant of those disciplinary problems (if, of course, the judge knows of them) and to take a further step to insure that the defendant is fully apprised of those problems. How the judge is to provide that insurance, since disciplinary proceedings are, with rare exception, confidential under Supreme Court Rule 766 (107 Ill. 2d R. 766), is not suggested by the defendant. But to carry the premise to its logical conclusion, if we say such an obligation is imposed on a judge, the same obligation should be imposed on the judge who learns that a lawyer has health, monetary or domestic problems or is under criminal investigation. The lot of the beleaguered criminal trial judge is already not a happy one; and we are confident that no reviewing court would saddle him further with the onerous duty now suggested by the defendant. There may be cases which require intercession by the judge, but such requirement is not automatically triggered by knowledge that disciplinary proceedings are pending. In short, we are not saying that a judge may not or should not inform a defendant of possible disciplinary problems his attorney may have; we are saying that he need not in all cases.

Nor do we accept the defendant’s argument that the mere pendency of disciplinary proceedings brands an attorney incompetent to defend a person charged with crime. The fact that the supreme court permits lawyers to continue to practice until they are suspended or disbarred should be a clear answer to that argument. The case he cites, People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136, does not support him. Williams involved a defendant sentenced to death whose lawyer also represented two other defendants. Those three were tried before one jury at the same time that another jury was trying a fourth defendant. As can be seen, such a procedure, which was disfavored by the supreme court, would require uncommon mental nimbleness on the part of an attorney in determining what evidence was admissible against what defendant. The supreme court also noted several specific instances of alleged inaction by the defendant’s attorney that might demonstrate that he failed to provide effective assistance. Those facts, added to the fact that while defending in a capital case, the defendant’s attorney was involved in disciplinary proceedings that eventually led to his disbarment, required a new trial. The attorney admitted that, while the disciplinary proceedings were pending (and while he was representing the defendant), he “did not feel mentally or physically capable of presenting his case” before the disciplinary commission. In re Weston (1982), 92 Ill. 2d 431, 436, 442 N.E.2d 236.

The supreme court agreed that ordinarily the record of the attorney’s performance at the trial is the only relevant consideration in determining whether his client was afforded the effective assistance of counsel. (Williams, 93 Ill. 2d at 315.) In remanding for a new trial, the court made it clear that it was abandoning the established test of competency only because of the “unique circumstances and sequence of events in this capital case, which will rarely, if ever, be duplicated,.” (Emphasis added.) (Williams, 93 Ill. 2d at 325.) There is nothing in Williams to support the defendant’s position that pending disciplinary proceedings against an attorney, ipso facto, render him incompetent to represent a defendant charged with a crime. The question that we must decide, therefore, is: Did the attorney’s representation meet the standards imposed by the Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246?

In Albanese our supreme court adopted the standard governing attorney competence as enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. In Strickland the Supreme Court laid out the two-prong standard that a defendant claiming ineffective assistance of counsel is required to meet before his conviction must be reversed. First, the defendant must establish that his attorney’s representation was actually deficient. Second, the defendant is required to show that defense counsel’s flawed representation prejudiced the defense in a manner that produced an unreliable result, or, absent the alleged errors, there exists a reasonable doubt as to the defendant’s guilt. The Court noted that the defendant must satisfy both elements of this test and that in the spirit of judicial economy reviewing courts could initially, as a time-saving measure, consider any prejudice suffered by the defendant before determining whether counsel’s performance was deficient.

The defendant alleges that his counsel was ineffective because he failed to do the following: (1) make timely objections and preserve the record for appeal; (2) object to constitutionally impermissible closing argument; (3) present evidence or a theory of defense through cross-examination or closing argument; (4) argue facts and law in support of his motion for a directed verdict; (5) request curative instructions when an objection was sustained and the testimony stricken; and (6) appear for the original trial date October 2, 1986.

Save for the alleged incompetence in permitting improper closing argument, the defendant has not pointed out any part of the record which would support any of the other grounds. In spite of that shortcoming in the defendant’s briefs, we have examined the record and conclude that the defendant’s allegations of incompetence on those other grounds are baseless. The defendant does not favor us with what “evidence or theory of defense” his attorney should have presented. The defendant’s attorney had a difficult case to defend. This was an identification case and a strong one: a witness who had seen the defendant almost every day for 10 years testified that he was looking at the defendant as the defendant stood firing a gun. The attorney did the best he could in cross-examining Fisher and Cox and established some discrepancies between their testimony and what they had told the police. He also argued effectively, advancing the only argument he could, that Fisher was not telling the truth.

Since the defendant has also separately assigned as error the prosecution’s statements that the evidence was uncontradicted, we will address that error together with the allegation that the attorney was incompetent for failure to object to those statements. The defendant contends that the prosecution made eight separate remarks that were designed to call the jury’s attention to the fact that he did not testify. We have considered the entire arguments of the prosecution and the defense and conclude that the prosecutor’s arguments were not improper.

It has been held that the State may properly argue that the testimony of its witnesses is uncontradicted even where the defendant is the only person who could have contradicted it. (People v. Hopkins (1972), 52 Ill. 2d 1, 284 N.E.2d 283.) The test for determining whether a defendant’s right to remain silent has been violated is whether the reference was intended or calculated to direct the attention of the jury to the defendant’s failure to testify. People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.

In the opening argument the prosecutor was attempting to outline what evidence was undisputed and what the applicable law was. In the beginning portion of his argument he said, “Mr. Crosby’s deceased, and he can’t tell us what happened.” Later he talked about the instruction covering intent and then added that there was no way of “opening the defendant’s mind” to see what he intended. There is nothing improper in those remarks; they would have been appropriate whether the defendant testified or not.

Then he said that Fisher was in a position to observe everything that had happened and that his testimony as to where he was standing was uncontradicted. We point out that Cox could have contradicted that testimony. The defendant was not in a position to do so. The prosecutor said that Fisher’s testimony that the area was well-lighted was uncontradicted and noted that the police officers also testified to the good lighting conditions. He also said that the physical evidence, that is the number of bullet wounds in Crosby’s body, “can’t be contradicted.” We find nothing improper in those arguments.

The prosecutor’s statement that the testimony of Cox and Fisher was uncontradicted gave the defendant’s attorney an opportunity to make a strong rebuttal, and he used it. He said that the State’s Attorney’s statement that the evidence was uncontradicted was not true, that the statement was “false.” He pointed out the inconsistencies between the testimony of Fisher and Cox and what Officer Kubiak testified that they had told him. He emphasized that if the area was well-lighted, Cox should have been able to identify the defendant; but she did not because, although she lied, she was not going to lie to the extent that she would identify the defendant. The bulk of his argument was centered on the testimony of Fisher, who he repeatedly said was lying.

A substantial part of the State’s closing argument was devoted to a defense of Fisher and Cox; and we construe that part of the prosecutor’s argument in which he referred to their testimony as uncontradicted and unrebutted as part of that defense and not an attempt to pinpoint the fact that the defendant did not testify. Further, we believe that the prosecutor’s comment, in the context in which it was made, was proper rebuttal invited by the defense attorney’s argument that the defendant, unlike Fisher, “did not come into this courtroom and tell a lie.” People v. Dixon, 91 Ill. 2d at 351.

We do not believe the cases cited by the defendant are applicable; People v. Wollenberg (1967), 37 Ill. 2d 480, 229 N.E.2d 490; People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773; and Williams v. Lane (7th Cir. 1987), 826 F.2d 654. All of those cases have at least one fact in common which distinguishes them from this one: the defense presented some witnesses.

In Wollenberg, the prosecutor recited the names of the State’s witnesses and the two witnesses who testified for the defendant and then concluded, “No one else testified. Let’s get that straight.” (Wollenberg, 37 Ill. 2d at 487.) The supreme court determined that the result of those remarks could only have been to direct the jury’s attention to the defendant’s failure to testify.

In Conners, the court noted the similarity between the prosecutor’s remarks in that case and those in Wollenberg. Upon reviewing the testimony of each State witness, the prosecutor commented:

“Ladies and gentlemen, the testimony of the people who have testified here is uncontroverted, uncontradicted. You have heard absolutely no one tell you anything else.’-’ Connors, 82 Ill. App. 3d at 321.

The appellate court pointed out that the defense did call one witness, a police officer, in an attempt to impeach the victim’s testimony regarding his description of the assailant. The court concluded that the State’s comment could have served to focus the jury’s attention on the defendant’s failure to testify.

Williams involved the charge of rape where the defense of consent was the principal issue, and the State’s case consisted almost entirely of the victim’s testimony. The alleged rape took place in the defendant’s car parked on the shoulder of the freeway, and no one else was present. Thus the only person who could reasonably testify as to consent would have been the defendant. The State’s evidence was not unrebutted. Two women testified on behalf of the defendant that they had seen him in a card game with the victim, contrary to her testimony that she had never seen him socially.

When the defendant objected to the prosecutor’s comment that the victim told the jury that she had been raped and no one else told them “anything different,” the trial court certified that the State had emphasized this remark by pointing to the witness stand. (Lane, 826 F.2d at 657.) Shortly after, following more objections by the defendant, the court instructed the prosecutor at a side bar not to make similar arguments. In spite of that instruction, the prosecutor repeated the remarks.

We find no impropriety in the State’s remarks and necessarily conclude that the defendant’s attorney did not provide ineffective assistance by failing to object to them.

The defendant next contends that the totality of the judge’s conduct denied him a fair trial. He refers to three specific occurrences but admits that each of them, standing alone, might not constitute reversible error. The first instance occurred during the voir dire jury examination at which the following occurred:

“THE COURT: Is there anything about that fact [a friend or relative serving on a suburban police force] that would cause you as a juror in this case to favor the testimony of police officers when they testify simply because they are police officers?
JUROR: It is possible.
THE COURT: This is very unusual. I never knew so many prospective jurors to favor the testimony of police officers. Well, you are excused.
* * *
THE COURT: Is there anything about that fact [friend or relative serving on a suburban police force] that would cause you as a juror in this case to favor the testimony of police officers who may testify in this case?
JUROR: Possibly.
THE COURT: This is a record I think.”

That juror also was excused for cause. Before the first juror was excused for cause, three out of the previous seven jurors had made similar expressions of inability to judge the testimony of police officers the same as that of other witnesses. The defendant argues that the judge’s remarks “inhibited *** and prevented the jurors from disclosing their true biases and prejudices.” This is a euphemistic way of saying that jurors that were questioned later did not tell the truth. There is no justification for such an accusation. Moreover, it is more fairly arguable that the remarks emphasized the court’s view that the jurors should not favor the testimony of police officers. We do not believe that the judge’s spontaneous, off-hand remarks prejudiced the defendant in any way.

The cases cited by the defendant, People v. Britz (1984), 128 Ill. App. 3d 29, 470 N.E.2d 1059, and People v. Thomas (1980), 89 Ill. App. 3d 592, 411 N.E.2d 1076, are not in point. In Britz the appellate court criticized the manner in which the trial judge precluded the defendant’s attorney from participating in the voir dire as well as the failure of the trial court to comport with People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062. Similarly, in Thomas the appellate court reversed because of the manner in which the trial judge restricted the right of the defendant’s attorney to participate in voir dire as well as his refusal to ask proper questions of the jurors.

The defendant next asserts that the trial judge abandoned his role as an arbiter and demonstrated a hostile attitude toward his attorney. He points to the judge’s question of his attorney, “How much longer do you have to go?” and the question, “Where is the impeaching part?” when the prosecutor objected to certain cross-examination. He also maintains that the court unduly restricted his cross-examination and characterized it as repetitive. We do not believe the questions asked by the court were improper, nor do we believe the defendant’s cross-examination was prejudicially restricted. He was permitted to, and did, establish the contradictions between the testimony of Cox and Fisher as to where their conversation took place before the shooting and some inconsistencies between their testimony and the testimony of Officer Habiak as to what they told him.

We do believe, however, certain remarks of the judge would have been better left unsaid. For example, during Fisher’s cross-examination concerning what he had told the police, the court volunteered an explanation of how police reports are prepared and what they contained, and when the State’s Attorney objected that a question had been asked and answered, the judge said, “He [Fisher] is not sure of the sequence in which he did all this.” However, since the defendant’s attorney was able to establish his point, we judge that his cross-examination was not restricted and the trial judge’s remarks do not indicate a hostile attitude toward him.

The cases cited by the defendant are not apposite. In People v. Lewerenz (1962), 24 Ill. 2d 295, 181 N.E.2d 99, the supreme court reversed for several errors, one of which was the conduct of the trial judge, who on 16 occasions during the trial characterized “normal and brief” objections as “speeches,” ruled that the “speech [be] stricken” and admonished counsel “not to make any speeches to me before the jury.” (Lewerenz, 24 Ill. 2d at 300-01.) In People v. Moriarity (1966), 33 Ill. 2d 606, 213 N.E.2d 516, the issue was identification. The judge took over the questioning of State witnesses and emphasized the identification. When the prosecutor faltered on direct examination of the complaining witness, the court intervened and asked the critical question. In several instances while defense counsel was cross-examining witnesses, the court of its own volition supplied objections to the questions asked. When the defense attorney objected to the court’s participation, he was rebuked by the court “in language from which the jury could not help but know that the court thought little of counsel and of the merits of the defense.” (Moriarity, 33 Ill. 2d at 613.) When the defendant’s wife testified, the court asked the defense attorney, “Have you talked to her about the penalties of lying?” (Mo riarity, 33 Ill. 2d at 613.) When the attorney objected and moved for a mistrial, the court responded: “I am not going to declare a mistrial. I have a right to protect the State and the defendant and it is my duty to do it.” (Moriarity, 33 Ill. 2d at 614.) Later when the wife testified that her husband had been with her all day on the date of the robbery, the court said to her: “You know what the penalty for lying is, don’t you?” (Moriarity, 33 Ill. 2d at 614.) The facts of People v. Santucci (1962), 24 Ill. 2d 93, 180 N.E.2d 491, are much like Moriarity. The trial judge examined all the State witnesses in a manner which emphasized testimony that was detrimental to the defendant. He cross-examined a witness for the defense and established that although she was married to someone else, she had gone out with the defendant on the night in question.

Those cases in no way resemble this one, and we find no conduct on the part of the trial judge that prejudiced the defendant or his attorney in the eyes of the jury.

The last instance which the defendant contends constituted error occurred while the jury was deliberating. The attorneys had been excused and were to be summoned when the verdict was to be returned. That afternoon the jurors apparently sent some questions to the judge, and they were brought into open court. Neither the State, the defendant nor his attorney was present. At that time the judge told the jury the following:

“Ladies and gentlemen I have your note. The parties are not available at the moment, but I didn’t want to delay any longer in responding to this. So we don’t have the defendant or any of . the lawyers here at the moment, but what I must tell you is this. I cannot answer those questions. The law does not permit me to answer these questions. We do not have a transcript of the trial available. Transcripts are never prepared from day to day. They’re only prepared after trial if there is an appeal of a case. So we don’t have the transcripts in this case or in any case. If we did, we could give that to you, but the law does not permit me to answer these questions. In other words, and this is why I spoke to you about the format of the trial at the outset, we must rely on the jury’s recollection of the evidence they heard in order to resolve all of these questions. So that’s the best we can do, and you may return to deliberate.”

Later, before the jury returned with a verdict, the defendant, his attorney and the State appeared in open court and the following occurred:

“THE COURT: About 3 o’clock the jury had a question.
MR. LEVIN [Defense Attorney]: I was advised of the question and what the court’s answer was. I have no objections to it.
THE COURT: O.K. Here are the questions. Take a look at it. And I told the Court Reporter to mark in her notes. We didn’t have the defendant in the courtroom, and you were not here, and the State stepped out of the courtroom. So I advised the jurors we could not answer the questions; they they had to look into the evidence. The Court Reporter can read it to you if you want it read.
MR. LEVIN: That’s fine, judge.”

The questions submitted by the jury have not been made part of the record; and the defendant now argues the judge erred because he communicated with the jury out of his presence or of his attorney and because he refused to exercise his discretion under the misconception he had no discretion.

The practice of conducting discussions with jurors out of the presence of the defendant or his attorney has been criticized. (People v. Bryant (1988), 176 Ill. App. 3d 809, 531 N.E.2d 849; People v. Briggman (1974), 21 Ill. App. 3d 747, 316 N.E.2d 121; but see People v. Pierce (1974), 56 Ill 2d 361, 308 N.E.2d 577 (supreme court held that the defendant’s presence could be waived by his attorney during discussions with jurors).) It has also been held to be reversible error for a judge to refuse to answer questions of jurors if the refusal is based on the judge’s belief that he has no discretion. People v. Queen (1974), 56 Ill. 2d 560, 310 N.E.2d 166.

We first conclude that the defendant has waived both arguments. His attorney was apprised of the questions that had been submitted and the judge’s answer; and he said he had no objections to the court’s answer. The fact that the jury was apparently ready to return a verdict did not prevent the defendant’s attorney from registering an objection and moving that the questions be answered. He had vigorously objected during the trial, even to the point of objecting to the judge’s remarks. Further, the post-trial motion made no reference to the judge’s actions in response to the jury’s question. Therefore, this assignment of error is waived. See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Even in the absence of waiver, we conclude that the record does not establish that the judge did not believe he had any discretion or that prejudicial error occurred when the judge met with the jury out of the presence of the defendant or his attorney. The facts of this case strongly resemble those of People v. Frisby (1987), 160 Ill. App. 3d 19, 512 N.E.2d 1337. In that case the jury asked if they could read the transcript of the testimony of one of the State’s witnesses. The judge responded, “No. None is available.” (Frisby, 160 Ill. App. 3d at 41.) The judge told the defendant that generally it takes a couple of days for the court reporter to prepare the transcript, and the defendant requested a “72-hour reprieve” which the judge refused. (Frisby, 160 Ill. App. 3d at 41.) About 45 minutes later the jury sent out a note that they were deadlocked on both charges. The defendant asked if the witnesses’ testimony could be read from the court reporter’s notes. The judge said “No,” and stated that as a matter of policy, such a procedure was not followed. (Frisby, 160 Ill. App. 3d at 41.) The following morning the jury returned a verdict. The appellate court held that the trial court did exercise discretion. It pointed out that the trial court acknowledged and exercised its discretion by indicating to the defendant a reason for declining the jury’s request, the problem with obtaining the transcript.

We are at a disadvantage in this case that is not present in any of the other cases that we have read on this issue because we are unable to determine what questions were asked of the judge. Although in light of the absence of those questions, the court’s answer is somewhat ambiguous, the import of the language used was an inability to answer the questions because of the absence of the transcript. In any event, it cannot be said that the record clearly reflects that the judge considered he lacked discretion. The responsibility for properly preserving the proceedings below rests with the defendant, and any doubts raised by an incomplete record are resolved against him. (People v. Hartfield (1985), 137 Ill. App. 3d 679, 484 N.E.2d 1136.) It is presumed, therefore, that the court acted correctly.

The defendant has cited three cases, including People v. Jackson (1975), 26 Ill. App. 3d 618, 325 N.E.2d 450, and People v. Bryant, 176 Ill. App. 3d 809, 531 N.E.2d 849. In those two cases the jury made a general request for the trial transcript, and both trial judges refused. And in both cases the appellate court said that the trial judge should have made further inquiry to determine the specific testimony the jury wished to review, and since he did not make such inquiry, his refusal to comply with the general request for a transcript indicated that he did not exercise discretion.

While we express neither agreement nor disagreement with the pronouncements in both cases that the trial judge was required to conduct an inquiry to determine what, if any, specific testimony the jury wished to review, we emphasize that the information sought by the jury in those cases was in the record, unlike this case. We note also that in Bryant the judge answered the jury’s request for a transcript by stating, “[Tjhere’s not a transcript available for you. You should rely on your collective memories of the testimony as you heard it.” (Bryant, 176 Ill. App. 3d at 812.) It would appear that the holding of Bryant is contrary to People v. Frisby, which we have previously discussed but was not discussed in Bryant. There is certain language in Bryant to which we take exception. The court said the following:

“[T]he record contains no indication that the trial court was aware of its discretionary power. With no indications to the contrary, we conclude that the trial court erred by failing properly to exercise its discretion.” (Bryant, 176 Ill. App. 3d at 813.)

We interpret that language to mean that the appellate court was presuming that the court did not exercise its discretion because the record did not affirmatively show that the court was aware of its discretionary power. In our judgment, such a conclusion is contrary to the rule, previously discussed, that a presumption exists in support of the validity of a judgment. The burden is on the defendant to establish that the judge did not exercise discretion; it is not on the State to show that he did.

As we have noted before, it is generally improper for a trial judge to communicate with the jury outside the presence of the defendant and his attorney. It is, however, well established that a jury verdict will not be set aside because of a communication with the jury out of the defendant’s presence unless the defendant demonstrates that he was prejudiced. (People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 292 N.E.2d 387; People v. Rogers (1974), 23 Ill. App. 3d 115, 318 N.E.2d 715.) In this case there is no claim or proof of specific prejudice. His attorney obviously did not believe there was. We note again that the rule of People ex rel. Walker v. Pate is contrary to the pronouncement of the appellate court in Bryant which assumed that the defendant was prejudiced by being absent.

The defendant also cites People v. Briggman (1974), 21 Ill. App. 3d 747, 316 N.E.2d 121. In that case, during the deliberation, the trial judge received a note from the jury which read: “What direction was defendant walking when he was arrested by the policeman as testified to by the policemen?” The judge instructed the bailiff to “[tjell the jury there is no answer to the question.” (Briggman, 21 Ill. App. 3d at 750.) In Briggman, the appellate court held that a review of the requested testimony would have been crucial to the jury in its deliberation and corroborated the defendant’s testimony regarding his arrest. The court concluded that under those circumstances the communication with the jury as to vital testimony affected the substantial rights of the defendant and that the defendant was denied his right to be present at such a proceeding. In other words, unlike this case, the record clearly established prejudice.

The defendant argues alternatively that the defense counsel’s failure to memorialize the jury’s questions in the record, or to raise the point in the motion for a new trial, further supports his argument that counsel was incompetent. We repeat that the absence of the questions asked by the jury compounds the difficulty for this court, but it also removes any basis for a holding that counsel was incompetent for failure to object. There is a strong presumption that the defense attorney’s conduct fell within the range of reasonable professional assistance, and it is the defendant’s burden to overcome that presumption. (Albanese, 104 Ill. 2d at 526.) The same reasoning applicable to our holding that the record failed to establish that the judge did not exercise his discretion is applicable here. We are asked to speculate that the defendant’s attorney did not have a valid reason for agreeing to the procedure followed by the trial court. We will refrain from doing so. It is just as fair to assume that the questions asked were similar to those asked in People v. Pierce (1974), 56 Ill. 2d 361, 308 N.E.2d 577. In Pierce, as in this case, the defendant offered no evidence. The jurors asked for the testimony of the prosecuting witness and the arresting officer. With the agreement of the defendant’s attorney, the judge told the jury, “I cannot instruct further. You must continue with your deliberations.” (Pierce, 56 Ill. 2d at 363.) The defendant was not present at the time of the discussion of court and counsel. The supreme court said the following (Pierce, 56 Ill. 2d at 364-65):

“Moreover, the defendant cannot be heard to complain of error in the refusal to review the testimony of the victim and the arresting officer. A review of the testimony of both these witnesses discloses only testimony that is unequivocally incriminating and damaging to the defendant, who did not present any defense at trial. The jury had already reached two verdicts at the time of its request for a review of testimony and it is clear that the defendant’s attorney acted protectively and in the defendant’s interest in agreeing that the testimony of these two witnesses should not be reviewed for the jury. If it could be said on any ground that the trial court should not have refused the jury’s request, any consequent error was a species of harmless error, error which favored the defendant and of which he cannot complain. [Citations.] Too, the defendant understandably cannot complain of any deprivation of his right to the assistance of counsel when his attorney’s action plainly was in the defendant’s interest.”

Therefore, we conclude that the defendant has failed to establish any incompetency on the part of his attorney in not making certain that the questions were read into the record.

The defendant has also assigned as error certain other arguments made by the prosecutor. We have examined the specific arguments complained of, and we find no error.

Last, the defendant contends that the trial court improperly considered as an aggravating factor that the victim died as a result of the. defendant’s conduct, which is implicit in the offense of murder. We have considered the remarks made by the trial court at the time of sentencing, and we conclude that the defendant has misconstrued them. The court did not consider an improper factor in sentencing the defendant.

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

Affirmed.

HARTMAN and SCARIANO, JJ., concur.

       Justice Egan participated in the decision of this case prior to his assignment to the sixth division.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY A. MANZO, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2577
    Opinion filed May 10, 1989.
    — Rehearing denied June 21, 1989.

      Genson, Steinback & Gillespie, of Chicago (Edward M. Genson and Terence P. Gillespie, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, Gayle Terry and Judith M. Pietrucha, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Ricky Manzo, was convicted of attempted murder and was sentenced to a six-year prison term and fined $3,000. Defendant appeals, alleging that the trial court erred in denying his motion for a mistrial when the State failed to comply with discovery requirements; that the State failed to prove him guilty of attempted murder beyond a reasonable doubt; that the trial court improperly instructed the jury; and that the trial court erred in denying defendant’s motion to suppress oral and written statements.

During opening statements at trial, the prosecutor informed the jury regarding the evidence which would be introduced. The prosecutor specifically quoted two oral statements which defendant had made to the complainant, Ricardo Ramirez. Defense counsel asked for a sidebar and moved for a mistrial, alleging that the State violated discovery requirements by not tendering these statements to defense counsel as requested.

The State acknowledged that the statements were not in the materials tendered to defendant during discovery. The State maintained, however, that defense counsel would have been aware of these statements had Ramirez been interviewed. The court ruled that it would not preclude the statements and denied the motion for a mistrial. The court continued the matter until after lunch so defense counsel would have the opportunity to interview defendant regarding these statements. Defendant then presented his opening statement, and the State presented its case in chief.

Ramirez testified for the State that at approximately 2 a.m. on January 3, 1986, he was driving home from work. He stopped in the left turn lane at the traffic light located at the corner of 47th Street and Cicero Avenue. There was little traffic at that hour, but there was a garbage truck also waiting at the light in the far right lane.

Ramirez noticed someone approach his car on the driver’s side. Ramirez later identified this individual as codefendant, Jim Kulevich. (Kulevich’s trial was severed from that of defendant, and Kulevich is not involved in this appeal.) Kulevich motioned for a ride with his thumb. Ramirez waved his hand back and forth, indicating “no.” Ramirez then saw another person, whom he later identified as defendant. Defendant stood approximately four feet from the car.

Kulevich reached for the car door and began to open it. Ramirez grabbed the door and closed it. Defendant then pulled out a gun and said, “[0]pen the door, mother fucker.” Ramirez estimated that the gun was two feet from the car and was aimed at his head. Kulevich attempted to open the door again but Ramirez locked the door with his elbow. Defendant then said, “[0]pen the door son of a bitch,” and fired the gun at Ramirez. (It was these two foregoing comments that were not disclosed in discovery.) Ramirez estimated that the bullet hit four inches from the front door jamb and within 14 inches of his head. As he leaned back, a second shot was fired, shattering the window on the driver’s door. Both shots landed in the dashboard of the car. Ramirez then heard the gun click, as if misfiring. The gun still was aimed at his head. Ramirez drove off, went to a nearby restaurant, and called the police. His only injuries were scratches and punctures on his hands and face from flying glass.

The police arrived, and Ramirez gave them a statement, including descriptions of both men. The police apprehended defendant and Kulevich. Ramirez identified Kulevich as the man who initially approached the car and identified defendant as the man who shot at him. Ramirez also identified the gun found in defendant’s possession as being the same or similar to the one used by defendant. Police ex-animation of the gun revealed a misspent or misfired bullet in the chamber.

Evidence technician Thomas Kelly photographed and processed the Ramirez vehicle. He testified for the State that the driver's window was completely blown out and that the interior front dashboard was damaged in the speaker area. He was unable to tell if the bullets ricocheted off the glass.

Henry Van Tholen, the driver of the truck which was stopped at the light with Ramirez that morning, testified for the State that he was in the right lane, stopped at a red light at the comer of 47th Street and Cicero. There was a car to the left of him, with one lane in between the two vehicles. As he waited, Van Tholen observed two individuals approach the car. He heard gunshots and saw one of the individuals holding a gun with two hands. The gun was aimed at the window of Ramirez’ car. The individual’s arms were extended and he was standing a few feet from the car. Van Tholen then saw the Ramirez car drive away. He followed the car to make sure the driver was all right and advised him to go to a nearby restaurant where he could call the police.

After the State presented its case in chief, defense counsel renewed his motion for a mistrial based on the nondisclosed statements. The court granted a 24-hour continuance and stated that it would allow the recalling of Ramirez if necessary. The court also ordered the State to review its files and to turn over any notes. A review of the felony review file revealed no reference to the statements.

Following the continuance, the State notified the court that a previously discussed stipulation to the testimony of a gun residue expert would not be offered because the expert, who had provided a positive report, had changed her analysis and had determined the test to be inconclusive. The prosecutor had notified defense counsel upon receipt of this information. Defendant again moved for a mistrial, alleging a discovery violation. The court denied the motion.

The State then rested its case. The defense rested without presenting any evidence or testimony.

Defendant first contends that the trial court erred in denying his motion for a mistrial based on the State’s failure to comply with discovery requirements. The first discovery violation occurred when the State, in opening argument, and Ramirez in his testimony, mentioned statements made by defendant to Ramirez during the commission of the offense. Defendant claimed surprise in that he was unaware of the statements. The second incident occurred when the State informed the court and defense counsel that a previously tendered report was being retracted by the technician, who now determined that the results were inconclusive. Defendant claims that each of these incidents deprived him of a fair trial. He maintains that the trial court’s remedial measures were insufficient to remove the prejudice resulting from the incidents and precluded defense counsel from formulating an appropriate defense strategy. We will address the two incidents individually.

In opening argument, the prosecutor quoted the comments and profanities which Ramirez had attributed to defendant. These statements were not made known to defense counsel despite the discovery request for any and all oral and written statements made by defendant. Defendant contends that the substance of the nondisclosed statements was the basis for the State’s argument that defendant had the specific intent to kill Ramirez. Defendant maintains, therefore, that the defense strategy would have been reformulated had defense counsel been aware of the statements. Moreover, defendant alleges that the continuance which the trial court granted was an insufficient sanction.

Supreme Court Rule 412 requires the State to disclose upon written motion “any written or recorded statements and the substance of any oral statements made by the accused *** and a list of witnesses to the making and acknowledgment of such statements.” (107 Ill. 2d R. 412(a)(ii).) The purpose of the rule is to afford the accused protection against surprise, unfairness and inadequate protection. (People v. Hinton (1984), 122 Ill. App. 3d 89, 460 N.E.2d 791.) The rule encompasses not only formal statements to the authorities, but also any statements, made to anyone, that might have bearing on the defendant’s guilt or innocence. (People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255; People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) The State has a continuing duty to disclose statements made by the accused, and this duty is violated whether the State’s neglect was inadvertent or purposeful. People v. Eliason (1983), 117 Ill. App. 3d 683, 453 N.E.2d 908.

The State concedes that its failure to disclose the statements to defense counsel was a violation of its discovery obligation. Nonetheless, not every violation of Rule 412 requires reversal. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) Supreme Court Rule 415 provides a variety of sanctions which may be imposed for the violation of a discovery rule. (107 Ill. 2d R. 415.) A trial court may order disclosure of the material, grant a continuance, exclude the evidence, or enter such an order as seems just under the circumstances. (107 Ill. 2d R. 415(g).) In fashioning its sanction, the trial court must evaluate the strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, and the willfulness of the State in failing to disclose. (People v. Norks (1985), 137 Ill. App. 3d 1078, 484 N.E.2d 1261.) The sanction to be applied is left to the trial court’s discretion, and in general, the judgment of the trial court is given great deference. (People v. Morgan (1986), 112 Ill. 2d 111, 492 N.E.2d 1303; People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255.) A reviewing court will nonetheless find an abuse of discretion when a defendant is prejudiced by the discovery violation and the trial court fails to eliminate that prejudice. People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255.

We believe that the trial court’s sanction was appropriate and that defendant was not prejudiced by the trial court’s denial of his motion for a mistrial. The trial court granted defense counsel two continuances to afford him the opportunity to interview any witnesses regarding the statements. We find that these continuances, a one-hour continuance after the State’s opening argument and a 24-hour continuance at the end of the first day of testimony, afforded defense counsel ample time to interview any relevant parties.

Defendant argues that his theory of defense would have changed had he known about these statements. Nonetheless, the statements were not crucial to the State’s case. The State presented the eyewitness testimony of Ramirez and Van Tholen. This testimony detailed defendant’s actions: defendant stood four feet from Ramirez’ vehicle, held the gun with both hands, arms extended, and fired the weapon. The State stated repeatedly during closing argument that the jury should look to these actions for defendant’s intent. In fact, on more than one instance, the State specifically noted that defendant’s actions spoke louder than his words. Only once during closing argument did the State refer to the statements, and then did so in the context of discussing defendant’s intent to commit aggravated battery. Thus, defendant has failed to demonstrate that these statements strongly contributed to the jury’s conclusion that he was guilty of attempted murder.

The trial court did not abuse its discretion in determining that a continuance was the appropriate measure to remedy'the State’s discovery violation. The two continuances afforded defense counsel ample opportunity to adjust defense strategy and to interview any relevant witnesses regarding the statements. Moreover, as the statements were not essential to the conviction, the granting of a mistrial would have been a disproportionate sanction.

The second incident which defendant contends deprived him of his right to a fair trial involved a laboratory report regarding gun residue. Initial analysis of defendant’s hands for gun residue indicated that defendant had fired a gun on the morning in question. The State gave defense counsel a copy of a report to this effect.

On the third day of trial, the technician notified the State that she had recalculated her standard and now had determined that the gun residue tests were inconclusive. The State immediately reported the new result to the court and to defense counsel. Nonetheless, defendant claims the incident violated the mandate set forth in Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and that the trial court’s refusal to consider the incident a discovery violation requiring a mistrial denied him a fair trial.

In Brady v. Maryland, the Supreme Court held that a violation of due process occurs when a prosecutor suppresses evidence material to either the guilt or the innocence of the accused after there has been a request for its production. Omitted evidence is material if it creates a reasonable doubt of defendant’s guilt. People v. Williams (1980), 91 Ill. App. 3d 631, 414 N.E.2d 1235.

We initially note that there appears to have been no suppression of the report. The State tendered the initial report to defendant and then immediately notified him upon learning that the conclusion of the report was being changed. There is no indication that the State acted in bad faith.

Moreover, even if the report had been suppressed, we do not believe the information contained in the report to be material in the Brady context. Although the decision of the technician to change the results of the test makes her testimony on this issue suspect, that decision does nothing to undermine the substantial evidence that defendant fired the gun. Specifically, Ramirez positively identified defendant as the person who fired the gun; defendant was found in possession of a gun shortly after the shooting; and Ramirez identified the gun as being the same as, or similar to, the one which he saw defendant with that morning. In light of this testimony, we do not believe that the gun residue evidence raised a reasonable doubt of defendant’s guilt, nor do we believe that the changed analysis of the technician would have required defendant to make any significant change in defense strategy. Accordingly, we conclude that no Brady violation occurred.

Defendant next contends that the trial court erred in failing to direct a verdict in his favor at the close of the State’s case. He maintains that the State’s evidence was insufficient as a matter of law to establish that he was guilty of attempted murder beyond a reasonable doubt because the State failed to prove that defendant had a specific intent to kill Ramirez.

In order to prove defendant guilty of attempted murder, the State must prove that he had the specific intent to kill the victim. (People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535.) Intent may be established by surrounding circumstances, and the intent to take a life may be inferred from the character of the assault, the use of a deadly weapon, and other circumstances. (People v. Koshiol (1970), 45 Ill. 2d 573, 262 N.E.2d 446, overruled on other grounds People v. Nunn (1973), 55 Ill. 2d 344, 304 N.E.2d 81.) Moreover, the very fact of firing a gun at a person supports the conclusion that the accused acted with the intent to kill. People v. Seats (1979), 68 Ill. App. 3d 889, 386 N.E.2d 879; People v. Thorns (1978), 62 Ill. App. 3d 1028, 379 N.E.2d 641.

Defendant claims that the evidence does not support a conclusion that he intended to kill Ramirez. Defendant alleges that the fact the bullets landed in the dashboard requires us to conclude that he did not intend to shoot Ramirez, but was merely attempting to frighten Ramirez. Defendant asserts that he purposefully shot directly at the dashboard, away from the driver, so as not to hurt him. However, there is no basis in the record for his allegations on appeal regarding the purpose of his actions that morning. Moreover, any inferences with respect to the path of the bullets which defendant now asks us to make are inappropriate as the trial court specifically noted that there was no evidence about the bullet trajectory, one way or the other.

We believe that the evidence presented at trial sufficiently establishes that defendant did intend to kill Ramirez. Ramirez testified that defendant, standing a few feet from the car, pulled out a gun, pointed it directly at his head, and fired the weapon. It is our judgment that, based on this testimony, the jury could reasonably conclude that defendant intended to kill Ramirez. The natural tendency of this act is to destroy another’s life (see People v. Coolidge (1963), 26 Ill. 2d 533, 187 N.E.2d 694), and the fact that the bullets did not strike Ramirez does not create a reasonable doubt. Accordingly, we find that the trial court did not err in refusing to direct a verdict in favor of defendant at the close of the State’s case. Defendant was proved guilty of attempted murder beyond a reasonable doubt.

Defendant next contends that the trial court erred by giving an improper jury instruction which impermissibly allowed the jury to convict defendant of attempted murder without showing that defendant had a specific intent to kill. The instruction which defendant complains of indicated that the jury could find defendant guilty of attempted murder if it found that defendant intended kill or do great bodily harm to Ramirez.

A finding that a defendant intended to do great bodily harm is insufficient to establish the offense of attempted murder. (See People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343.) Here, however, the trial court immediately recognized the error in instructing the jury that a finding of intent to do great bodily harm to Ramirez would suffice to convict defendant of attempted murder. The trial court thereupon brought the jury back to the courtroom and read and tendered the proper instruction. This action took place within approximately 10 minutes of the time at which the jury began deliberating. The jury was informed that an error had been made and was instructed to stop their deliberations until the correct instruction could be given.

The cases which defendant cites in support of his argument are inapplicable as each involved a situation in which the improper jury instruction was not corrected. Here, the improper instruction was discovered and a correct instruction was given. The trial court’s prompt action cured any error which may have resulted from the initial erroneous instruction. No reversible error occurred.

Defendant finally contends that the trial court erred in denying his motion to suppress oral and written statements. Significantly, however, defendant fails to assert that any statement subject to the motion to suppress was placed into evidence at trial. Our review of the record reveals that these statements in fact were not offered as evidence by the State. Accordingly, we see no genuine issue to be reviewed. See People v. Endress (1972), 5 Ill. App. 3d 821, 284 N.E.2d 725.

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

Judgment affirmed.

RIZZI and WHITE, JJ., concur.

       Justice McNamara participated in this opinion prior to his transfer to the sixth division.


author: PRESIDING JUSTICE FREEMAN

text:
    DAVID A. BENDER, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF DOLTON et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—87—3262
    Opinion filed May 10, 1989.
    Rehearing denied June 21, 1989.
    Stanley H. Jakala, of Berwyn, for appellant.
    Timothy J. Szwed, of Gasperec & Szwed, Ltd., of Homewood, for appellees.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, David Bender, brought a complaint for judicial review of the final administrative decision of defendant, the Board of Fire and Police Commissioners of the Village of Dolton, to discharge plaintiff from his position as a Dolton police officer. The circuit court of Cook County affirmed defendant’s decision. Plaintiff appeals.

On March 3, 1986, plaintiff, who was on duty, had a conversation with the Dolton chief of police, George Pfotenhauer, in the latter’s office at the Dolton police station. At that time, Pfotenhauer asked plaintiff some questions regarding his overtime and his ownership or operation of a security company. During their conversation, a cassette tape recorder which plaintiff had in his vest pocket made a beeping sound. According to Pfotenhauer, he then asked plaintiff whether he was recording their conversation. Plaintiff admitted he was and Pfotenhauer demanded that plaintiff surrender the tape. Plaintiff contended at the administrative hearing that he had not recorded his conversation with Pfotenhauer. However, on appeal, he does not dispute that he did so or that he refused Pfotenhauer’s order to surrender the tape.

Pfotenhauer filed charges with defendant alleging plaintiff’s violation of article 4, sections 2.1, prohibiting the violation of a criminal law, and 2.2, prohibiting the disobedience of a lawful order, of the rules and regulations of the Dolton police department. The first charge alleged a violation of section 14 — 2 of the Criminal Code of 1961, which prohibits eavesdropping. (Ill. Rev. Stat. 1985, ch. 38, par. 14—2.) The second charge alleged plaintiff’s disobedience of Pfotenhauer’s order to surrender the cassette tape. After an evidentiary hearing, defendant found plaintiff guilty of both charges. Regarding the first charge, defendant specifically found that plaintiff had committed the offense of eavesdropping in that he knowingly used an eavesdropping device to record all or part of his conversation with Pfotenhauer without Pfotenhauer’s consent. Defendant thus found that cause existed to discharge plaintiff from the police department.

In the circuit court, the parties argued, inter alia, whether People v. Beardsley (1986), 115 Ill. 2d 47, 503 N.E.2d 346, was retroactively applicable to exonerate plaintiff’s conduct of recording the conversation with Pfotenhauer. The trial court decided that Beardsley was not retroactively applicable to plaintiff’s case on the basis of Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 301 N.E.2d 501, and therefore affirmed plaintiff’s discharge.

Beardsley held, in relevant part, that the eavesdropping statute did not prohibit the recording of a conversation by a party to the conversation. (People v. Beardsley (1986), 115 Ill. 2d 47, 56, 503 N.E.2d 346.) In Reich, the plaintiff police officer challenged his discharge for violating the statute prohibiting possession of marijuana on the ground that the statute was subsequently found unconstitutional. In rejecting the challenge, the Reich court held that retroactive application of the unconstitutionality of a statute must be limitedly applied. It also held that, as the statute was an operative fact when plaintiff was charged with its violation, he was bound to have obeyed it at that time. Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 1035, 301 N.E.2d 501.

Opinion

Before proceeding to the merits of this appeal, we must determine the standard of review applicable to it. Defendant asserts that its findings and conclusions of fact must be considered prima facie true and correct and cannot be reversed unless against the manifest weight of the evidence. (See, e.g., Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 498 N.E.2d 1148.) However, we believe that defendant’s final administrative decision ultimately depended on a legal conclusion that plaintiff’s act of recording his conversation with Pfotenhauer constituted a violation of the eavesdropping statute, not on its finding that he did, in fact, record that conversation. It is well settled that a court of review is not bound by an administrative agency’s conclusions of law, such as the construction of a statute. Chemetco, Inc. v. Pollution Control Board (1986), 140 Ill. App. 3d 283, 488 N.E.2d 639.

On appeal, plaintiff contends that, assuming that he did record the conversation with Pfotenhauer, such conduct did not constitute eavesdropping as a matter of law. In support, he cites People v. Klingenberg (1975), 34 Ill. App. 3d 705, 339 N.E.2d 456. Klingenberg held that the videotaping of an interrogation after a drunk driving arrest did not violate the eavesdropping statute despite the fact that the defendant did not consent to it. The court reasoned that, since the defendant made his statements directly to the police and intended that they hear his statements, he had no expectation of privacy therein, there was no interception of a private communication, and the recording was not intended to obtain otherwise inaccessible information. Klingenberg, 34 Ill. App. 3d at 708.

Defendant does not directly respond to plaintiff’s reliance on Klingenberg. Indirectly doing so, it argues that, assuming plaintiff did not commit the offense of eavesdropping, there is, nonetheless, a reasonable expectation of privacy in a superior’s conversation with an employee that prohibits the repetition of their communications. This is especially true, defendant argues, in law enforcement, where confidential matters are routinely discussed and expected to remain undisclosed. Given that they occurred in the office of the chief of police while plaintiff was on duty, defendant concludes, there must be an expectation of privacy accorded the communications between plaintiff and Pfotenhauer.

We find defendant’s attempt to distinguish Klingenberg unavailing. Because we conclude that Klingenberg controls this case, we need not address whether Beardsley is retroactively applicable to it.

Defendant’s defense of plaintiff’s discharge on the ground that, even assuming he did not commit eavesdropping, he nonetheless violated Pfotenhauer’s reasonable expectation of privacy in their conversation is flawed for several reasons.

The first is that, if plaintiff did not commit eavesdropping, he did not violate any criminal law of the State of Illinois. If he did not violate any criminal law, he did not violate article 4, section 2.1, of the rules and regulations of the Dolton police department. If he did not violate that provision, there was no basis for charging a violation of article 4, section 2.2., thereof. Therefore, he should not have been discharged.

The second reason defendant’s argument is flawed is that plaintiff was charged with committing the criminal offense of eavesdropping and not merely with violating or breaching a superior’s reasonable expectation of privacy in confidential communications.

The third reason the argument is flawed is that, while conceding that plaintiff did not commit eavesdropping, it asserts that he committed what is the basis of that offense, i.e., a breach of privacy. The generally accepted definition of eavesdropping is “to listen secretly to what is said in private.” (People v. Klingenberg (1975), 34 Ill. App. 3d 705, 707-08, 339 N.E.2d 456.) The statute prohibiting eavesdropping is thus intended to protect the privacy of the individual. (Klingenberg, 34 Ill. App. 3d at 707.) Defendant, therefore, cannot logically concede that plaintiff did not commit eavesdropping and simultaneously assert that he violated Pfotenhauer’s privacy.

On a more fundamental level, defendant’s argument evinces a misunderstanding of the privacy interest which the prohibition against eavesdropping protects. As we read the case, Klingenberg was based, at bottom, on the fact that the same individuals to whom the defendant directed his statements and by whom he intended that they be heard recorded them. Klingenberg thus stands for the general principle that no eavesdropping occurs where an individual to whom statements are made or directed records them, even without the knowledge or consent of the person making the statements, because the declarant does not intend to keep his statements private vis-a-vis that individual.

Although we have found it unnecessary to decide whether Beardsley is retroactively applicable here, Beardsley is nonetheless noteworthy because it relies on and discusses Lopez v. United States (1963), 373 U.S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381, which the Klingenberg court cited in holding that no eavesdropping occurs absent interception of a communication intended by the declarant to be private. (People v. Klingenberg (1975), 34 Ill. App. 3d 705, 708, 339 N.E.2d 465.) Lopez involved a revenue agent’s recording of a bribery attempt with a pocket recorder. In rejecting the defendant’s fourth amendment challenge to the admissibility of the recording, the U.S. Supreme Court concluded that the government did not use the recorder to listen in on conversations it could not otherwise have heard, but only to obtain the most reliable evidence of a conversation which involved a government agent and which he was therefore fully entitled to disclose. People v. Beardsley (1987), 115 Ill. 2d 47, 55-56, 503 N.E.2d 346.

Like the police officers in Klingenberg and the revenue agent in Lopez, plaintiff did not use his pocket recorder to listen in on a conversation he could not otherwise have heard. As such, he did not commit eavesdropping in recording his conversation with Pfotenhauer. It therefore follows, a fortiori, that plaintiff did not violate article 4, section 2.1 or section 2.2. of the rules and regulations of the Dolton police department. With regard to the latter, the only legitimate-basis which Pfotenhauer could have for ordering plaintiff to surrender the tape was his alleged violation of the eavesdropping statute. As he committed no such violation, Pfotenhauer had no right to the tape.

Finally, the fact that this is a civil case, unlike Klingenberg and Lopez, does not make the rationale of those cases inapplicable here. In Cassidy v. American Broadcasting Cos. (1978), 60 Ill. App. 3d 831, 377 N.E.2d 126, a police officer sought damages for a tortious invasion of privacy predicated on the alleged offense of eavesdropping by a television news camera crew which filmed him with a massage parlor model. Relying upon Klingenberg, the court held that the plaintiff had no expectation of privacy since he had been told by the model that they were being filmed and since he intended that whoever was operating the camera film his conduct with her. Cassidy, 60 Ill. App. 3d at 836.

For all of the foregoing reasons, the judgment of the circuit court is reversed and judgment is entered for plaintiff.

Reversed.

RIZZI and WHITE, JJ., concur.

      Plaintiff relies on Klingenberg to argue that defendant’s decision was against the manifest weight of the evidence. However, we find that, if applicable here, Klingenberg requires a conclusion that defendant’s decision was contrary to the law.


author: JUSTICE JOHNSON

text:
    TOMMY CHAMBERS et al., Plaintiffs-Appellants, v. THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—87—0992
    Opinion filed May 11, 1989.

      William J. Cooley, of Chicago, for appellants.
    Michael Levinson, of Board of Election Commissioners, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Tommy Chambers, Russell Leake, Edwin A. Hunter, Tiffany Greer, Benford Chambers, Edward White, Lemoyne Eloby, and Thelma Eloby bring this appeal seeking to reverse the order of the circuit court of Cook County granting defendants’ motion to strike and dismiss their petition. Defendants are the Board of Election Commissioners of the City of Chicago and Michael Lavelle. The following issues are raised on appeal: (1) whether the trial court properly dismissed plaintiffs’ complaint because it lacked the required specificity; (2) whether the local option question is prohibited by section 28 — 1 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 28 — 1); and (3) whether the local option question is unconstitutional.

We affirm.

On November 4, 1986, a local option election was held in the 18th precinct of the 21st ward in the City of Chicago. The purpose of the election was to determine whether sale of alcoholic beverages should be prohibited by retail liquor licensees within the 18th precinct. The canvass of the election returns completed on November 12, 1986, revealed that 148 “Yes” votes and 45 “No” votes were cast by the residents.

On December 12, 1986, plaintiffs filed a verified complaint in the circuit court of Cook County contesting the results of the local option election. On January 14, 1987, defendants filed a motion to strike and dismiss the complaint. Plaintiffs filed a response to the motion on January 30, 1987. On March 5, 1987, the trial court granted defendants’ motion. This appeal followed.

Plaintiffs’ first contention is that the trial court erred in dismissing their complaint. Plaintiffs argue that the trial court improperly relied on In re Contest of the Election for the Offices of Governor & Lieutenant Governor Held at the General Election on November 2, 1982 (1983), 93 Ill. 2d 463. They allege that In re Contest is not only legally and factually distinguishable from the instant case, but that it does not apply where fraud is an issue.

The trial court expressly ruled in its March 5, 1987, order that plaintiffs’ petition lacked the specificity required by In re Contest. That case involved a challenge to the results of the November 2, 1982, election for Governor and Lieutenant Governor for the State of Illinois. Adlai E. Stevenson, plaintiff, challenged the canvass of the election and petitioned the court for a recount, pursuant to section 23 — 1.2 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 23 — 1.2) (hereinafter the Code). James R. Thompson and George H. Ryan, defendants, filed a motion to strike the petition, which was granted. The court, relying on Zahray v. Emricson (1962), 25 Ill. 2d 121, held that the allegations in the petition were insufficient and merely stated conclusions unsupported by specific facts. Zahray held that “while the pleadings in contest proceedings are not required to comply with the strict technical rules applicable in civil actions, there should be such strictness as will prevent the setting aside of the acts of sworn officials without adequate and well defined cause. [Citations.] Stated otherwise, there should be no reason for a recount of the votes unless there is a positive and clear assertion, allegation or claim that such a recount will change the result of the election.” Zahray, 25 Ill. 2d at 124.

The complaint here fails to meet the pleading requirements of In re Contest and Zahray. Plaintiffs’ complaint does not clearly assert or allege that a recount will change the result of the election. Rather, plaintiffs argue that the entire conduct of the election evidenced fraud and, therefore, must be invalidated. The alleged fraudulent acts included irregularities in the petition which placed the question on the ballot and electioneering. However, these allegations lack the specificity to support an election contest claim.

Plaintiffs rely on several fraudulent election contest cases to support their argument. In Lehman v. Hill (1953), 414 Ill. 173, the court invalidated the election based on the following fraudulent conduct: only 60 persons were entitled to assistance at the polls, but hundreds of voters were given assistance; one person who gave assistance was not entitled to do so; no affidavits or oaths were administered prior to giving assistance and hundreds of blank affidavits for assistance were included in the election supplies but later disappeared without explanation. In Drolet v. Stentz (1967), 83 Ill. App. 2d 202, the election judges failed to take voter applications for the first 21/a hours and thereafter commingled the good ballots with tainted ballots. As a result, it was impossible to segregate or mathematically compute the number of ballots illegally cast. The court found that the election was fraudulent and aborted the election results in the precinct at issue.

The above two cases involve specific, well-pleaded allegations to support an election contest. However, in the present case, plaintiffs’ allegations of election irregularities were conclusions of the pleaders and failed to set forth facts sufficient to warrant invalidating the election results. Thus, we agree with the trial court’s finding that plaintiffs’ complaint lacked the specificity required by In re Contest of the Election for the Offices of Governor & Lieutenant Governor Held at the General Election on November 2, 1982 (1983), 93 Ill. 2d 463.

Plaintiffs further argue that there was a person stationed at the front door of the polling place who was attempting to influence electors to vote “Yes” on the proposition. They allege that such behavior constituted electioneering and is a basis for voiding the election.

Section 17 — 29 of the Code prohibits electioneering within 100 feet of a polling place (Ill. Rev. Stat. 1985, ch. 46, par. 17 — 29). This prohibition is directory — not mandatory — and its violation is not a sufficient basis to void an election. Thomas v. Marcin (1977), 51 Ill. App. 3d 82, 84.

Plaintiffs next contend that section 28 — 1 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 28—1) permits only three public questions per election. They argue that the local option referendum concerning the sale of liquor by retail liquor licensees was the fourth question and impermissibly submitted to the voters. For this reason, plaintiffs claim the voters of the 18th precinct were confused and overburdened with too many questions.

Section 28 — 1 of the Code states, in relevant part, as follows:

“If more than 3 propositions are timely initiated or certified for submission at an election with respect to a political subdivision, the first 3 validly initiated, by the filing of a petition or by the adoption of a resolution or ordinance of a political subdivision ***, shall be printed on the ballot and submitted at that election.” (Ill. Rev. Stat. 1985, ch. 46, par. 28—1.)

A political subdivision is defined in the Code as “any unit of local government, or school district in which elections are or may be held.” (Ill. Rev. Stat. 1985, ch. 46, par. 1—3(6).) An election district or precinct “means the smallest constituent territory in which electors vote as a unit at the same polling place in any election governed by this Act.” Ill. Rev. Stat. 1985, ch. 46, par. 1—3(13).

Given the fact that the drafters intentionally defined a political subdivision and an election district, it is clear that the three-question limitation is applicable only to a political subdivision. Moreover, section 28 — 1 specifically refers to “political subdivision”; it is silent as to an “election district.” Therefore, we find that the limitation of three public questions per election does not apply in an election district or precinct.

Plaintiffs’ final contention is that the local option question is unconstitutional. They argue that the question is vague and ambiguous on its face and, therefore, not understood by the electors in the 18th precinct.

The language of the question is verbatim from section 9 — 6 of the Liquor Control Act of 1934, which states as follows:

“Shall the sale at retail of alcoholic liquor (*** containing more than 4% alcohol by weight in the original package and not for consumption on the premises) be prohibited in [the 18th precinct of the 21st ward]?” (Ill. Rev. Stat. 1985, ch. 43, par. 171.)

“A statute will not be held to be unconstitutionally vague so long as its terms are of sufficient specificity to serve as a guide to those to whom it applies.” (People v. Guzzardo (1979), 69 Ill. App. 3d 252, 257.) We find that the ballot format was of the required specificity to guide the electors in the 18th precinct and was not unconstitutional. Hence, we agree with the decision of the trial court.

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

Affirmed.

JIGANTI, P.J., and LINN, J., concur.