author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL HARRIS, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—3080
    Opinion filed October 11, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Violet T. Ricks and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb and Guy L. Miller IV, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Michael Harris (Harris) was charged with attempted murder (Ill. Rev. Stat. 1985, ch. 38, par. 8—4), aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12—4(b)(1)) and armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—2(a)). After a jury trial, he was found guilty of attempted murder, aggravated battery and armed robbery. Thereafter, defendant was sentenced to 58 years in the Illinois Department of Corrections to be followed by three years’ mandatory supervised release.

On appeal Harris charges that the following procedural and substantive errors mandate a reversal of his conviction and vacation of his sentence:

(1) Whether the trial court erred by admitting evidence concerning a prior conviction for armed robbery;

(2) Whether the trial judge’s interference in the manner in which defense counsel conducted his motion to suppress denied defendant a fair and impartial trial;

(3) Whether the trial judge erred by denying defense counsel’s motion to suppress the identification of George Caver;

(4) Whether defendant was proven guilty of attempted murder, aggravated battery and armed robbery beyond a reasonable doubt; and

(5) Whether the 58-year sentence imposed by the trial judge is excessive and must be vacated.

The basic facts are as follows. On October 12, 1987, the victim, a Cook County department of corrections police officer, was driving home. Approximately eight blocks from her home she noticed a person driving a red Chevette pull up alongside of her. The red Chevette followed the victim until she arrived at her home. Upon her arrival home, the victim stopped her car alongside her garage and looked around. The victim got out of her car to open her garage door. As she exited her car she noticed the red Chevette parked close by. The victim reentered her car and then backed her car into her garage. Once parked in her garage she exited her car. The garage was illuminated by a streetlamp.

The victim saw a black male come into the garage. He pushed her against the car, told her not to look at him, and asked her whether she had any drugs or gold. "While in her garage the officer was robbed at gunpoint, hit on her head and shot in the face. Her shoulder bag was pulled off her shoulder, two rings were taken from her finger and her badge was seized.

Once in her car, defendant pointed his gun at her face. The victim started her car. As she attempted to pull her car door shut, defendant shot her in the face. She was also hit over the head with the gun. With a gunshot wound in her face, she drove out of her garage. For a moment she noticed that defendant was alongside her car but then fell. "When defendant got up he started running toward his red Chevette. The victim drove after him. Defendant shot again and hit the driver’s side window of her car. The window shattered. The victim continued her pursuit of defendant until she could feel herself passing out. The victim later identified Harris from a lineup as the person who had accosted her.

On October 16, 1987, George Caver (Caver) was robbed while washing his 1978 green Oldsmobile. He was approached by a person he later identified as Harris. Harris identified himself as a policeman while showing a badge. Harris asked if Caver was the owner of the Oldsmobile and if he had any drugs in the car. Caver responded that he did not. Harris told Caver to empty his pockets onto the car’s floor. At the time the keys to the Oldsmobile were in the ignition. Defendant then took Caver’s car. Caver testified that a pair of cowboy boots and a pair of shoes were in the car when it was taken. Later, Caver identified his cowboy boots, his Oldsmobile, his wallet and the badge that was later found in defendant’s possession upon defendant’s arrest. Caver identified defendant from a lineup. Caver also identified the shoes defendant was wearing in the lineup as his.

On October 18, 1987, at approximately 6 a.m., two Chicago police officers, Officer Arnold Martinez and Walter Smith, heard a high pitched squeal then observed a green Oldsmobile. After approaching the Oldsmobile and ordering the driver to pull over to the curb, the driver took off. The driver stopped and left the car with the officers in pursuit. Officer Carl Riggenbach later joined the chase. Officers Riggenbach, Martinez, and Smith observed defendant throw down a pistol and a badge that he was holding. Harris was eventually apprehended in a yard. A key chain, a leather glove, a black baseball cap and a wallet with Caver’s identification were recovered in the backyard where Harris was arrested.

At approximately 6:30 p.m. on October 18, 1987, the victim went to the 111th Street police station accompanied by a friend, Mr. Gregory Lynum. Approximately one hour later she was taken to a lineup room where she identified Harris as the person who shot and robbed her. The victim also identified the gun used by defendant, her badge case containing her Cook County identification that had her identifying number, and the dark cap that defendant wore when he committed his crimes. Mr. Lynum gave the police a bullet he recovered from the victim’s car. The bullet came from a cartridge of the same caliber of cartridge used in the gun recovered from defendant upon his arrest. However, the bullet was so mutilated that it could not be positively determined to have been fired from any particular gun.

Harris’ version of the events is completely contradictory to the State’s. Harris claims that at approximately 5 a.m. on October 17, 1987, he left his girl friend’s house located at 78th and Carpenter. He was going to take a bus to his mother’s home. He was between 63rd and 65th and Morgan with a cigarette in his mouth and marijuana in his pocket when he saw the police. As he ran to throw the marijuana away, the police pulled up, asked him for identification, told him to get into the car and placed him under arrest.

Harris stated that when he saw the police, he started running. He threw his cigarette to the ground, a bag of marijuana was on his person. He did not notice a 1978 Oldsmobile in the area. He did not throw a gun, wallet, sheriff’s star or badge.

Despite Harris’ claims of lack of involvement and excessive sentence, we must affirm his conviction and sentence.

I

The first of Harris’ five claimed errors involves a claim that the trial court erroneously denied his motion in limine to prohibit the introduction of a 1980 conviction for armed robbery. Harris argues that the probative value of the evidence is outweighed by its prejudicial effect. Harris further contends that his prior armed robbery conviction was so similar to his current armed robbery conviction that the admission of the prior armed robbery conviction was reversible error.

We disagree and find that the trial court zealously guarded Harris’ rights in its ruling on the evidence concerning his prior conviction for armed robbery. People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, establishes the basic circumstances under which the State may impeach a defendant with a prior conviction after he or she has testified. Specifically, a defendant may be impeached by evidence that he or she was previously convicted of a crime if that conviction was for a felony or involved dishonesty or false statement regardless of the punishment. (Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.) The trial court, must, however, determine that the probative value of the evidence of the conviction is not outweighed by the danger of unfair prejudice. (Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.) Further, evidence of a conviction under this rule is not admissible if a period of more than 10 years from the date of the conviction or release from confinement has elapsed. Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.

“Theft related offenses obviously involve dishonesty and arguably reflect on a person’s likelihood of telling the truth when testifying as a witness.” (People v. Wright (1977), 51 Ill. App. 3d 461, 463, 366 N.E.2d 1058.) In the present case, the initial prerequisites of Montgomery have been met, i.e., the prior conviction for armed robbery involved dishonesty, and the conviction occurred within the 10 years preceding the crimes in the present case. Next, the trial court must determine whether “the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.” Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 587, 363 N.E.2d 805.

In People v. Wright (1991), 218 Ill. App. 3d 764, 773, the defendant was convicted of attempted burglary in October and November 1985, as well as in March 1986, for which he was sentenced to three years’ imprisonment. The defendant was arrested again five months later. The trial judge in Wright denied defendant’s motion to preclude the evidence of his prior convictions. In denying defendant’s motion, the trial judge stated that the evidence “goes to credibility” and that the court “must weigh prejudicial value as to the probative value.”

In People v. Poole (1988), 167 Ill. App. 3d 7, 520 N.E.2d 1017, this court held that the trial court did not err in admitting the prior convictions for the limited purposes of impeachment where all of the Montgomery factors were satisfied. The court specifically stated:

“(1) the convictions were for felonies, and robbery, like theft, is a crime involving dishonesty [citations]; (2) the convictions were within the 10-year time period authorized by our courts [citations]; and (3) one of the convictions (armed robbery) is for the same crime as [defendant] is charged with here, the other conviction for practically the same crime ***, but both of which involve moral turpitude.” (Poole, 167 Ill. App. 3d at 16, 520 N.E.2d at 1022.)

A prior conviction for a crime which is similar to the crime charged does not mean that the prior conviction cannot be used against defendant for impeachment purposes; rather, the similarity is merely a factor which the court considers when balancing probative value against prejudicial impact. People v. Hall (1983), 117 Ill. App. 3d 788, 799-800, 453 N.E.2d 1327, 1337.

Here less than 10 years had elapsed since the prior conviction for armed robbery. After hearing arguments, the trial court made a ruling to insure that the evidence did not prejudice Harris in the eyes of the jury. The trial court’s ruling gave the State an option to either tender evidence that Harris had been convicted of a prior felony and there would be no bar on comments during closing arguments or, in the alternative, the trial court would allow the State to put into evidence the fact that Harris’ prior conviction was for armed robbery, in which case the State was barred from mentioning anything about the conviction during closing arguments. The State chose the latter course.

Defendant further argues that the jury was allowed to believe that because Harris had committed an armed robbery before, it was more likely that he committed the armed robbery in this case. Thus, the jurors viewed this evidence as propensity evidence, unfavorable to Harris. We disagree with defendant’s contention.

During the State’s rebuttal a certified copy of defendant’s prior conviction was read to the jury. After the State rested, the trial judge stated:

“The Court again cautions the jury that the testimony as you heard from the witness stand was offered only as rebuttal to specific evidence that you heard during the defense case.
It is not to be considered by you for any other purpose and, specifically, it is not to be considered as proof of commission of any other crime.
During the course of the final instructions, you will receive — I will again be referring to that in one of the instructions that I will give you. It is evidence only being offered for a limited purpose.”

The trial court further admonished the jury by giving the jury the following instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.13 (2d ed. 1981)):

“Evidence of a defendant’s previous conviction of an offense may be considered by you only insofar as it may affect his believability as a witness, and must not be considered by you as evidence of his guilt of the offense with which he is charged.”

Harris states that evidence of his prior conviction was of little probative value to the State’s case. Harris does not show how he was prejudiced by the evidence, nor does the record reflect prejudice. A trial court’s decision to admit a prior conviction into evidence will not be overturned unless an abuse of discretion appears. (People v. Wright (1977), 51 Ill. App. 3d 461, 366 N.E.2d 1058.) With respect to prior offenses, however, that discretion is broad. (People v. Spates (1979), 77 Ill. 2d 193, 204-05, 395 N.E.2d 563, 569.) We find that the trial court did not abuse its discretion in balancing the relevant factors and denying defendant’s motion to exclude his prior conviction. See Wright, 218 Ill. App. 3d at 774; Hall, 117 Ill. App. 3d at 800, 453 N.E.2d at 1337.

Rather than an abuse of discretion, the record reflects that the trial judge was extremely discreet in his ruling on the motion in limine to assure that the State’s right to introduce the evidence as well as Harris’ right to a trial free of prejudice were perfected. The trial court acted judiciously in limiting the uses of defendant’s prior conviction and in cautioning the jury to only consider the evidence in terms of credibility. Harris’ conviction was based on the identification of the victim, corroborative testimony by George Caver and the work of the Chicago police department, not because of the evidence that he was convicted of robbery in 1980.

II

The second allegation of error that Harris makes is that the trial judge abused his discretion in controlling the way defense counsel conducted its motion to suppress the identification of the victim. Defendant contends that the trial judge intruded upon the function of defense counsel by forcing her to present her motion to suppress identification in a certain manner. Defendant further alleges that by taking an active role in the proceedings, the judge set the tone for the trial, creating a burden on defense counsel to continually second-guess how the judge would rule or whether the judge would systematically scrutinize her manner of defending the case which resulted in a violation of Harris’ right to a fair trial before an impartial judge.

It is well settled that an issue is waived for purposes of review unless there is a contemporaneous objection and the issue is raised in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 185-86, 522 N.E.2d 1124.) Moreover, if a defendant does not move for a substitution of judges upon an allegation of the judge’s predisposition against him, he has waived consideration of the issue. (Ill. Rev. Stat. 1989, ch. 38, par. 114—5; see also People v. Curtiss (1984), 126 Ill. App. 3d 568, 572-73, 467 N.E.2d 624.) Additionally, if a defendant acquiesces to a procedure that is not objected to, this acquiescence will preclude a reviewing court from considering the basis of objection. People v. McTush (1980), 81 Ill. 2d 513, 520-21, 410 N.E.2d 861.

Defendant voluntarily participated in the trial court’s proposed lineup procedure. Although defendant never moved for a substitution of judges and we consider the issue waived, we nevertheless address the issue because of the almost constant implication by defense counsel that a trial judge has abused his discretion in jury cases in an attempt to assure a fair trial.

Defendant contends that the victim confronted him immediately prior to the lineup where he was identified by the victim. Defendant’s mother and sister were present just prior to the lineup when the alleged confrontation occurred. In this case, during its motion to suppress identification, defense counsel requested that her witnesses view the victim while she was sitting in the jury room. The trial judge required defense counsel to get four other women to be of the same age, size, and similar characteristics as the correctional officer. The witnesses would view such a lineup to identify the correctional officer. This is the procedure that was followed and by which Harris claims the judge exceeded his judicial authority.

The following are pertinent excerpts of the discussion between defense counsel and the trial judge:

“MS. KEISMAN: No, judge, all I ask is that when [the victim] was sitting in the jury room that my witnesses be allowed to look at her. I mean, my other alternative, Judge was to take them to [the victim’s] house.
THE COURT: Tell you what I will do. You have — you can get four other people who appear to be approximately the same age and size and characteristics, other characteristics, as [the victim] and I will permit a lineup to be conducted. And then you may have your witnesses view that lineup to determine whether they can identify [the victim] and that can be done under the auspices of having a neutral deputy sheriff present at that time.
* * *
THE COURT: Now, if you don’t wish to avail yourself of that opportunity to have your witnesses look at her fine. You were the one who raised it, you were the one who asked for it and if you want to withdraw that request that is your prerogative.
MS. KEISMAN: No, Judge, I want my witnesses to look at [the victim], I have made that clear. And as I made clear if you wish to not believe them then that is your prerogative but we have the right to proceed with our motion in the way that we wish to proceed. I don’t know why I must be foreclosed from bringing [the victim] into court. Why I have to not proceed by way of lineup. That is not the tactic that I wish to proceed.
I need the witnesses to look at [the victim] so they can say, yes, she was the woman we saw in the police station so that I may sustain my burden or they may say no. And if they say no, Judge, then as I said that’s my problem.
* * *
THE COURT: Okay, fine. Well, when I suggested it earlier I thought that it met with both of your approvals and there was no objection to it interposed.
If you are now objecting to that procedure, Ms. Keisman, that is your prerogative, you can object to it and we won’t have one.
MS. KEISMAN: Judge, am I allowed to bring [the victim] into court so that my witnesses can view her?
THE COURT: I will tell you that if you proceed in that manner I probably will give them absolutely very little credibility to their testimony. So, you take a chance. It’s a real choice you’re making.
* * *
MS. KEISMAN: Well, Judge, given the Court’s indication of how you would rule then I feel that I’m forced to participate in a lineup.
THE COURT: Don’t feel forced at all. It is up to you. It is a trial tactic. You can determine which you prefer to do. If your witnesses identify the correct person, well, obviously it will have a great deal of weight. If they do not identify the correct person, well, that speaks for itself.
MS. KEISMAN: I told you at the beginning that I would like to do the case as I prefer and then the Court indicated to me that you would doubt their credibility if I did it the way I prefer. Now I am forced to do it with a lineup.
THE COURT: No, you are not forced, Ms. Keisman. I said that would have very little weight.
MS. KEISMAN: Okay, thank you.
THE COURT: Just for exactly the same reason that this Court often finds people not guilty on a single finger identification where there hasn’t been a lineup.”

The preceding discussion took place at the pretrial motion to suppress outside the province of the jury. The lineup consisting of four women took place outside of the courtroom in the jury room in the presence of a neutral observer. The lineup itself was conducted off the record. Defendant’s mother and sister did not conclusively and positively identify the victim in the lineup.

A defendant is entitled to all reasonable opportunities to present evidence which might tend to create a doubt concerning his guilt. (People v. Mosley (1979), 68 Ill. App. 3d 721, 726-27, 386 N.E.2d 545.) However, “[Questions relating to the character of the evidence offered and the manner and extent of its presentation, are largely within the discretion of the trial judge, and the exercise of that discretion will not be interfered with unless there has been an abuse resulting in prejudice to the defendant.” (People v. Skidmore (1966), 69 Ill. App. 2d 483, 488, 217 N.E.2d 431; see also People v. Calloway (1979), 79 Ill. App. 3d 668, 673, 398 N.E.2d 917.) “[A] court is given considerable discretionary latitude in the orderly procedure of a trial, and the exercise of that discretion should not be disturbed unless a clear abuse is shown.” (People v. Garrett (1973), 11 Ill. App. 3d 142, 146, 296 N.E.2d 44.) It is the trial judge who presides at a jury trial in a criminal case, not a State’s Attorney or defense counsel.

The trial judge’s duty is to exercise a high degree of care to avoid influencing the jurors. He must remain impartial and refrain from displaying prejudice or favor to any of the parties. (People v. Sprinkle (1963), 27 Ill. 2d 398, 189 N.E.2d 295.) A strong presumption exists that judges rely only on proper evidence in reaching determinations of the merits. (People v. Beasley (1982), 108 Ill. App. 3d 301, 309, 438 N.E.2d 1305.) Even the fact that a judge has ruled adversely to a defendant on a previous occasion does not necessarily disqualify the judge from later sitting in judgment of the same defendant’s claims. See People v. Vance (1979), 76 Ill. 2d 171, 178, 390 N.E.2d 867; People v. Berland (1978), 74 Ill. 2d 286, 310, 385 N.E.2d 649.

There is nothing in the trial judge’s actions during the motion to suppress that indicates a hostility to either defense counsel or the accused. There is nothing to suggest that his action was prejudicial to the defendant or in favor of the prosecution. The trial court did not preclude defense counsel from proceeding in the manner in which she preferred, but rather the trial judge merely indicated that he felt one procedure was worthy of greater weight than the other. The trial judge indicated that identification testimony where the witnesses had the opportunity to view but one individual and subsequently identify that single individual as the victim was not worthy of as much weight as a procedure where the witnesses identified the victim from a lineup of four women.

Ill

The third issue Harris raises is whether the trial court erred by denying defense counsel’s motion to suppress the identification of State witness George Caver. Allegedly Caver was told by the police that they had arrested the person who had taken his car. Harris argues that the suggestive procedures used for identification in the case at bar denied Harris due process of law. This claim is based on the charge that Caver’s identification of Harris was not an “informed judgment,” that there was a discrepancy between the person Caver chose from the lineup and the description that he gave police of the person who took his car, as well as alleged outside influences on the identification.

Defendant alleges that the procedure used in the identification lineup was suggestive. Specifically, defendant alleges that Caver was told by the police that they had arrested the person who had taken his car and that, for 45 minutes, Caver was put in a room with other people who were there to identify a rapist.

For the following reasons, we reject Harris’ argument that his conviction merits a reversal as a result of the trial court’s denial of his motion to suppress. Defendant argues that there is a discrepancy between the person Caver chose from the lineup and the description that he gave the police of the person who took his car. Caver’s description of the offender stated that he was a black male, 26 to 28 years old, 5 feet 7 inches to 5 feet 10 inches tall and weighed 135 to 145 pounds. At the time of the identification, Harris was 6 feet tall and weighed approximately 200 pounds. The mere fact that a witness fails to note a particular characteristic or minor discrepancies exist in a witness’ description does not render that identification unreliable and vague. People v. Nightengale (1988), 168 Ill. App. 3d 968, 973, 523 N.E.2d 136, 140.

Caver testified that he did not see defendant immediately prior to the lineup. He further testified that he did not see defendant or converse with anyone immediately prior to the lineup who could have aided him in his identification of defendant. Caver did testify that he had a conversation with two people immediately prior to defendant’s lineup in a waiting room; however, this conversation concerned an unrelated rape.

A trial court’s denial of a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898.) Manifestly erroneous or “against the manifest weight of the evidence” is commonly understood to mean “palpably erroneous and wholly unwarranted” (Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 415, 458 N.E.2d 530) or “appears to be arbitrary, unreasonable, and not based upon the evidence.” Martin v. Zucker (1985), 133 Ill. App. 3d 982, 991, 479 N.E.2d 1000.

In ruling on defendant’s motion to suppress the lineup, the trial court found:

“Based upon the evidence, the Court finds there is not evidence of any tainted line-up. The witness testified that he never saw the defendant prior to the lineup. I believe the witness’ testimony. The line-up photo which I observed appears to be an appropriate line-up photograph.
The Court finds absolutely no irregularities in the line-up. Your motion is denied.”

At the hearing, the initial burden is on the defendant to establish that within the totality of the circumstances, the pretrial identification was so unnecessarily suggestive that it gave rise to a substantial likelihood of irreparable mistaken identification. (Stovall v. Denno (1967), 388 U.S. 293, 301-02, 18 L. Ed. 2d 1199, 1206-07, 87 S. Ct. 1967, 1972-73; People v. Jackson (1974), 24 Ill. App. 3d 700, 704, 321 N.E.2d 420, 423.) However, even if the pretrial identification is found to be improper, an in-court identification by the witness may still be allowed, provided the State establishes by clear and convincing evidence that his identification is based on observation independent of and prior to the tainted out-of-court identification. People v. Jackson (1974), 24 Ill. App. 3d 700, 704, 321 N.E.2d 420, 423.

If pretrial lineup procedures are defective a conviction is not overturned, if as in this case, an in-court identification of the defendant is positive and based on personal observation of a defendant while defendant committed his crime, and it was not tainted by the lineup procedure. (People v. Guyton (1969), 114 Ill. App. 2d 394, 252 N.E.2d 665.) A defendant’s conviction can be sustained despite a pretrial confrontation between the victim or victims and the felon if the confrontation was harmless beyond a reasonable doubt. (People v. Flemming (1977), 47 Ill. App. 3d 755, 362 N.E.2d 691 (showup confrontation held at the scene of the arrest).) The test is whether the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that the suspect was denied due process of law. People v. Flemming (1977), 47 Ill. App. 3d 755, 760, 362 N.E.2d 691.

Defendant argues that he was substantially prejudiced by the trial court’s allowance of Caver’s identification testimony in that the jury was allowed to hear other crime evidence that showed defendant had a propensity for crime. Finally defendant argues “[a]ll of this other crimes evidence allowed the jury to believe ‘where there is smoke there is fire’ and convicted [Harris] on matters other than the facts in this case.” We note that prior to Caver’s testimony the judge admonished the jury in the following manner:

“Ladies and gentlemen, the next testimony you will hear will be evidence presented by the State in what is called rebuttal.
Now, I want to caution you. You are not [to] consider any of this evidence as being any evidence of the commission of any crime.
But rather, it is offered only, and is to be considered by you only, for the purpose that it is intended by the State; to be offered as a rebuttal of specific testimony which you heard during the Defense case.
You are to consider it only as an offer of rebuttal of testimony that you heard during the Defense case, and not as proof of any other type of offense.”

Harris testified that he was never in possession of the green Oldsmobile, Caver’s wallet with his identification or the victim’s badge. Caver’s testimony directly contradicted the defendant’s. “A trial is an adversary proceeding. The State [has] the right and obligation to use all of the impeaching evidence it [possesses] in order to destroy the credibility of the defendant if he were to testify.” (People v. McKibbins (1983), 96 Ill. 2d 176, 189, 449 N.E.2d 821, 827.) Furthermore, a trial court’s determination to admit other crimes evidence will not be reversed unless there exists a clear abuse of discretion. (People v. Funches (1978), 59 Ill. App. 3d 71, 73, 375 N.E.2d 135.) We do not find that the judge abused his discretion in allowing the jury to hear Caver’s testimony. Moreover, the trial court acted cautiously in admonishing the jury to consider Caver’s testimony for the limited purpose of rebuttal.

In this case, defendant’s possession of the two victims’ personal effects, and the police chase, ending in recovery of those items at the scene of his arrest, would have been adequate to sustain the conviction. Considering the overwhelming nature of independent corroborative evidence, we do not believe any improper lineup procedure contributed to conviction. Further, as stated previously, we believe that Harris was convicted on the basis of testimony and evidence presented as to these crimes, not on the basis of any matters other than the facts in this case.

IV

In his fourth point, Harris argues that the State failed to prove him guilty of attempted murder, aggravated battery and armed robbery beyond a reasonable doubt. Harris claims the testimony of the correctional officer lacked credibility, was uncertain and insufficient and therefore defendant’s conviction must be reversed. Defendant argues that the victim did not give a detailed description of her offender. He points out that she did not describe the length of his hair, whether he had facial hair, whether there were any scars on his face or the shape of his face. Defendant maintains that the identification evidence was unconvincing and insufficient to produce an abiding conviction beyond a reasonable doubt that Harris was the assailant.

In support of his position defendant cites to the dissent in People v. Nims (1986), 156 Ill. App. 3d 115, 505 N.E.2d 670; however, we find the principles and reasoning set forth in the majority opinion and special concurrence to be more persuasive. It is well established that a positive identification of a single witness is sufficient to support a conviction, provided that the witness is credible and observed the offender under conditions which would permit a positive identification to be made. (People v. Nims (1986), 156 Ill. App. 3d 115, 505 N.E.2d 670; People v. Mendoza (1978), 62 Ill. App. 3d 609, 615-18, 378 N.E.2d 1318.) Discrepancies or omissions in detail do not destroy the validity of an identification, but rather affect the weight of the testimony and are to be evaluated by the trier of fact. (People v. Nims (1986), 156 Ill. App. 3d 115, 505 N.E.2d 670; People v. Shelby (1984), 123 Ill. App. 3d 153, 462 N.E.2d 761.) With regard to identification testimony, it has been noted that “untrained persons may give varying descriptions of another.”

The only other case defendant cites in support of this argument is People v. Poltrock (1974), 18 Ill. App. 3d 847, 850, 310 N.E.2d 770. We find the facts in Poltrock distinguishable from the present case. In that case the testimony of the three complainants differed markedly. The appellate court found that the cumulative effect of the contradictions within and between the three stories raised a reasonable doubt of defendant’s guilt. In the present case there were no conflicts in the testimony and evidence in the State’s case.

“The purpose of a jury is to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor.” (People v. Boclair (1989), 129 Ill. 2d 458, 474, 544 N.E.2d 715, citing Taylor v. Louisiana (1975), 419 U.S. 522, 530, 42 L. Ed. 2d 690, 698, 95 S. Ct. 692, 698.) The testimony of a single witness, when positive and credible, is sufficient to support a conviction provided that the accused is observed under circumstances which would allow a positive identification to be made. (People v. Stringer (1972), 52 Ill. 2d 564, 569, 289 N.E.2d 631.) This is true even though the testimony of that witness is contradicted by the defendant’s testimony, or there are alibi witnesses testifying for him. (People v. Alexander (1978), 65 Ill. App. 3d 559, 563-64, 382 N.E.2d 519.) It is the jury’s duty to assess the credibility of witnesses and to weigh the evidence in determining a defendant’s guilt or innocence. (People v. Byron (1987), 116 Ill. 2d 81, 90, 506 N.E.2d 1247.) Any discrepancies or conflicts in the testimony affect only the weight to be given the testimony, and the trier of fact is free to accept or reject as much or as little as it pleases of a witness’ testimony. People v. Beasley (1977), 54 Ill. App. 3d 109, 114, 369 N.E.2d 260.

A jury determination in a criminal trial is entitled to great deference; a court reviewing a challenge to the sufficiency of the evidence will defer to the jury and will not retry the defendant. (People v. Boclair (1989), 129 Ill. 2d 458, 544 N.E.2d 715.) On review, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Emphasis in original.)’ ” (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Moreover, a reviewing court will not set aside a jury’s verdict unless an examination of the evidence demonstrates that it is so improbable, unsatisfactory or inconclusive so as to raise reasonable doubt of quilt. People v. Williams (1989), 185 Ill. App. 3d 1040, 1045, 542 N.E.2d 93.

Judged by this rule, this court cannot conclude that defendant’s conviction for the various offenses is at all doubtful. As a matter of fact the evidence is strong that Harris shot the correctional officer in the face, robbed her and in the following days robbed Caver. His defense that he was misidentified by the two victims and that the police got the wrong person after the chase, as well as the fact that the badge and personal effects found at the scene of the arrest were not his, did not convince either the trial court or jury. Based upon the evidence, the jury found defendant guilty beyond a reasonable doubt. Based upon a careful review of the record with the cited rules guiding this court, we must affirm the jury’s findings.

V

Finally, Harris argues that the 58-year extended-term sentence imposed by the trial court is excessive and should be vacated. Although severe, the term is within the limits prescribed by the legislature.

The determination and imposition of sentence are within the circuit court’s discretion, and a reviewing court may not substitute its judgment for that of the trial court absent an abuse of that discretion. (People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) A reasoned judgment as to the proper sentence to be imposed must be based upon the particular facts and circumstances of each individual case. Such a judgment depends upon many factors, including the gravity of the offense and the circumstances of commission; the court also considers the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, age and criminal history. (People v. Williams (1991), 209 Ill. App. 3d 709, 568 N.E.2d 388; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The trial judge presides over the sentencing hearing and is in the best position to evaluate these criteria and determine the proper sentence. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Sentencing is a matter of judicial discretion. In the absence of an abuse of that discretion, the court cannot alter the sentence on appeal. People v. Younger (1986), 112 Ill. 2d 422, 494 N.E.2d 145.

In determining what sentence to impose, the court looks at several criteria, including the nature of the crime, the need to protect society, and the rehabilitative potential of the defendant. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Watson (1982), 107 Ill. App. 3d 691, 697, 438 N.E.2d 453.) Harris’ mother testified that he did not complete high school and that he had worked for a trucking company from the age of 11 years to the age of 21 years. Defendant argues that this verifies his potential for rehabilitation.

Defendant had two prior convictions. The crimes he committed in this case were severe. Merely because this court may feel a lesser sentence would be more just is no reason to reverse. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The record reflects that the trial court considered proper criteria in sentencing defendant, and defendant has presented no persuasive reasons why we should overrule the discretionary ruling of the circuit court.

The sentence Harris received is severe, but within the statutory limits. Nothing in the record discloses that the trial judge abused his discretion in sentencing, and based on the record in this case, nothing in the law authorizes this court to reverse the trial judge in this case. We conclude that the trial court did consider all of the relevant factors and, therefore, its sentencing determination was proper and was not an abuse of discretion.

For all the reasons set forth above, we affirm the conviction and sentence imposed by the trial court.

Judgment affirmed.

GORDON and McNULTY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE WOODSON, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—0754
    Opinion filed October 11, 1991.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and John Wilk, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

After a jury trial, defendant was found guilty of two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)) and was sentenced to natural life in prison. Defendant appealed. We consider: (1) whether, in light of Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, the defendant was illegally detained at the police station the night of the murder, and if so, whether there was a causal connection between the illegal detention and defendant’s confession thereby requiring suppression of the confession; (2) whether the jury was improperly prejudiced by victim impact testimony; and (3) whether the trial judge erred by denying defendant’s request for the appointment of new counsel to independently evaluate his claims of ineffective assistance of counsel.

We affirm.

Relevant to our disposition are the following facts as disclosed by the record. On the night of December 24, 1987, the defendant left his home on the north side of Chicago with his wife, Jacqueline Woodson, and his daughter, Carnesia Woodson. After walking about six blocks, Jacqueline and Carnesia were murdered. Defendant reported the murders to the police and subsequently described two versions of what happened. We set forth each version below.

In the first version, defendant told the police that at about 9:30 p.m. he, Jacqueline and Carnesia left their home and walked toward the “L” station. Defendant was unclear whether the family was going to his father’s house or out to do some last-minute Christmas shopping. At any rate, defendant noticed a black van following them. Defendant had noticed the same van in the neighborhood earlier that day. The family crossed Lake Shore Drive to avoid the van. They entered a park and saw a person hiding in the bushes. They went toward the lake and came upon another person in dark clothing, wearing a hood and carrying a sawed-off shotgun. Then still another person carrying an Uzi-type gun and wearing a red jacket and a ski mask approached the family. Jacqueline tried to get her own handgun out of her purse but the man with the sawed-off shotgun wrestled it away from her. The assailants directed the family to the water’s edge. The defendant then began to beg for the lives of his family, but the man with the sawed-off shotgun shot him in the chest with Jacqueline’s handgun. The bullet was deflected by a brass paperweight in the pocket of defendant’s army jacket but the force of the blow knocked the defendant in the water. The next thing he knew Jacqueline and Camesia were also in the water and the assailants were gone. The defendant, unable to retrieve Jacqueline, retrieved Carnesia from the water, placed her on the hood of a car, and went to call the police. Defendant told the police that one of the assailants was a man he knew as “Hollywood,” who had previously threatened to kill defendant. In support thereof, defendant described an insurance fraud scheme in which he, Jacqueline, Hollywood, and a host of other persons participated. Apparently, Hollywood found out that the defendant was going to expose the fraud to the authorities and therefore had a motive for the shootings. Defendant gave the police the license plate number of the black van and the address of Hollywood.

In the second version, given by the defendant to the police the day after the murders, defendant confessed to killing Jacqueline and Camesia. In this version, defendant told the police that he had become depressed because Jacqueline was having an affair and wanted a divorce. Defendant intended to go to the lake front to confront Jacqueline and then kill himself. At the lake front, he pulled Jacqueline’s gun out of her purse. She yelled at him about wanting a divorce and, as she turned away, he pointed the gun at her and fired twice. He tossed her into the lake and then fired the gun at Carnesia. She fell into the water. He then placed the gun next to his heart and fired. He believed that the brass paperweight blocked the shot. Feeling terrible about shooting Carnesia, he went into the lake to retrieve her. The paperweight, which was never found, probably fell out of his pocket at that time. He threw the gun into the lake and then called the police from a nearby phone booth. Jacqueline’s handgun was also never found.

Having set forth defendant’s versions of the murders, we next set forth the testimony concerning the conduct of the defendant and the police leading up to the defendant’s confession. The trial judge considered this testimony in a bifurcated pretrial hearing on a motion to quash the arrest and suppress the evidence.

The police received the defendant’s emergency phone call at about 10:30 p.m. Meanwhile, a concerned citizen who happened upon the scene of the murders flagged down the squad car of Chicago police officer Angelo Rodriguez. Officer Rodriguez drove into the park and saw the body of Camesia on the hood of the car. Rodriguez called for an ambulance. Other officers responding to the defendant’s phone call arrived on the scene, and the defendant led them to the water’s edge. Jacqueline’s body was found floating in the water.

Officer David Webel asked the defendant what had happened. Pursuant to the first version of facts, defendant gave Officer Webel the license plate number of the van and Hollywood’s address. The bodies of Jacqueline and Carnesia were taken to separate hospitals — it was believed that Jacqueline was dead but it was not known whether Carnesia was dead. The defendant, although not bleeding, was experiencing pain in his chest. He was also taken to a hospital. Upon release from the hospital, the defendant voluntarily accompanied the police to the Area 6 headquarters. Defendant consistently testified that he went to Area 6 willingly because he believed that the police wanted him to identify the assailants.

Once at Area 6, defendant was taken to an interview room measuring 10 feet by 10 feet. Defendant testified that he was not photographed, not fingerprinted, and he was not told he was under arrest. Defendant admitted that initially he was treated like a victim. Defendant was given food, coffee, and cigarettes, and was allowed to use the restroom. However, defendant’s clothes were wet and during his entire stay at Area 6 he was not allowed to change them. He was initially questioned about the shootings for about a half hour by a detective and a uniformed sergeant.

Defendant was also allowed to make a phone call to his parents. As he returned to the interview room after making this call, defendant saw that the police were bringing in Hollywood. Defendant attempted to attack Hollywood. The defendant himself testified that it took 10 to 15 officers to restrain him. The officers eventually returned the defendant to the interview room and then, according to the defendant, locked the door. The officers denied that they locked the door. Several officers went into the interview room to calm down the defendant and then left. Defendant testified that he began banging on the door. He told the police that he wanted to go to the hospital to see his wife and daughter. Defendant also asked why the police were holding him. The police told the defendant that they needed him at the station while Hollywood was being questioned. Although defendant’s father arrived at Area 6, the police would not allow him to visit. Defendant’s sister, who was also a police officer assigned to Area 6, was allowed to visit defendant. During this visit, defendant asked his sister for her gun so that he could attack Hollywood again. His sister did not give him her gun.

Two detectives, Ronald Yawger and Lawrence Thezan, went into the interview room at about 1:30 a.m. Yawger had interviewed the defendant four months earlier following the defendant’s arrest on another matter. In the prior interview, defendant had told Yawger about the insurance fraud scheme and Hollywood’s threat on defendant’s life. Upon seeing Yawger again, defendant yelled, “I told you so, I told you so!” Yawger had to be pulled out of the room. Defendant then testified that he was handcuffed to the wall in the interview room for several hours. Each police officer denied that defendant was ever handcuffed.

In the ensuing early morning hours, the police (including Yawger) questioned defendant about the license number on the van, the description of the three assailants, and the description of the guns, including Jacqueline’s handgun. The defendant willingly allowed the police to examine and inventory his jacket. Several times the police left the room and returned to ask the defendant more questions. The defendant testified that Yawger wanted him to identify Hollywood before the assistant State’s Attorney arrived. Hollywood was eventually arrested.

At 8:30 a.m. the following morning, Detectives Tony Jin and Alan Thiel began their shift. They met with Yawger and Thezan to discuss the investigation. Jin testified that Hollywood had left Area 6 before he had arrived. They began their own interview of the defendant at 10:30 a.m. Jin testified that the defendant was not handcuffed or under arrest. Thiel advised the defendant of his Miranda rights, and the defendant waived his right to silence. Defendant repeated the first version of facts over the course of five separate conversations with the detectives. Detective Jin testified that he “may have” locked the door after leaving the room between each conversation, but the defendant never asked to leave. Defendant testified that the two detectives told him they did not believe his first version of the murders. Detective Jin denied this. Jin did not take any notes during the five conversations.

Also during one of the five conversations, an assistant State’s Attorney, David Lavin, entered the interview room, introduced himself as an attorney for the police, and then left the room. Lavin returned to listen to the questioning and then offered the defendant his Miranda rights. Then, at about 12 p.m. defendant confessed to killing Jacqueline and Camesia by describing the second version of the murders. Both Jin and Lavin made memoranda of defendant’s confession. Defendant read and signed Lavin’s memorandum. At 3:45 p.m., defendant agreed to give a court-reported statement after receiving his Miranda rights again.

In the written pretrial motion to quash the arrest and suppress the confession, the defendant alleged:

“4. That during the numerous interrogations of Mr. Dwayne Woodson he was subjected to several different forms of psychological coercion. Specifically,
a. In response to Mr. Woodson’s assertions of innocence he was called a ‘liar’ and told ‘you did it mother [expletive], you know you did.’
b. In the presence of Mr. Woodson, one of the police officers would relate to other police officers a distorted and incorrect version of what Mr. Woodson had previously stated to the police;
c. The police officers told Mr. Woodson that his wife, one of the deceased, was no good, had cheated on him and had a baby which was not his;
d. Throughout the initial interrogations led Mr. Woodson to believe that his wife and child were still alive. Then, at the point where Mr. Woodson was tired, discouraged, and otherwise in a weakened mental state, told him, with a smile, that both his wife and child were dead;
e. Prevented Mr. Woodson from sleeping for a total of approximately twelve (12) hours;
f. Questioned Mr. Woodson repeatedly in shifts of different police officers;
g. Refused to let Mr. Woodson change out of his wet clothes;
5. That during the numerous interrogations Mr. Woodson was subjected to various forms of physical abuse. Specifically,
a. Mr. Woodson was slapped several times in response to his assertions of innocence;
b. Mr. Woodson was kicked on at least two occasions;
c. Mr. Woodson’s sweater was pulled over his head and he was hit;
6. That Mr. Woodson finally acceded to the physical and mental coercion and gave an oral and written statement concerning the above charges.”

Each of these allegations was denied by the police officers and by the assistant State’s Attorney.

The trial judge denied the motion to quash the arrest and suppress the confession.

At trial, the State’s first two witnesses were Jacqueline’s sisters, Joyce and Denise. Joyce testified about her immediate family, Jacqueline’s married family, and Jacqueline’s job. She also stated that on the night of the murders all of her family members except for Jacqueline were present at their mother’s house. She testified that at around 7:30 p.m. that evening Jacqueline had telephoned Denise to say that she was tired and running late, that “everything was going wrong,” and that she had presents to wrap and was not coming over. Denise testified that in her telephone conversation she also spoke with Carnesia and heard the defendant on the phone. When she resumed speaking with Jacqueline the phone “just clicked” and they became disconnected. Denise made no attempt to call again. The defendant did not object to this testimony at trial or in the post-trial motion.

At the end of the trial, the jury found the defendant guilty of the murders of Jacqueline and Carnesia. The State requested a death penalty hearing pursuant to which the defendant requested a jury.

At the first phase of the death penalty hearing, the defendant filed a pro se post-trial motion in which he claimed the public defender and prosecutor “were in direct collusion to intentionally and recklessly suppress, conceal and or exclude vital exculpatory evidence.” The trial judge held a hearing on the motion, listened to the defendant’s arguments, and denied the motion. The trial judge stated that there was no evidence “beyond mere conclusory statements to support any type of claim of collusion between your attorney and the State.” Meanwhile, the jury found the defendant eligible for a second hearing on the death penalty.

After the second phase of the hearings, the jury found sufficient mitigating factors to preclude the imposition of the death penalty. Accordingly, the final sentencing hearing was held. Defendant’s counsel then filed a motion for a new trial and the defendant himself filed an addendum to his pro se motion for a new trial. In the addendum, defendant alleged that key evidence was tampered with and concealed. The trial judge held another hearing, listened further to defendant’s arguments, and again denied defendant’s motion. The trial judge stated that the claims in both the post-trial motion and the addendum were “totally without merit.” Defendant was sentenced to natural life in prison.

Defendant filed this appeal.

Opinion

In Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, the Supreme Court held that detaining an individual for purposes of a custodial interrogation which exceeds the scope of a valid investigatory stop intrudes so severely on the interests protected by the fourth amendment that the traditional safeguards against illegal arrest are triggered. Thus, regardless of the label used to characterize the detainment, where a defendant is subjected to such an interrogation without probable cause the resulting evidence must be suppressed absent demonstration of sufficient intervening circumstances which purged the taint of the illegal arrest.

The test to determine whether a person has been illegally detained is whether a reasonable, innocent person in the circumstances would believe that he or she would be free to leave; the test is not subjective, and thus, a defendant’s belief that he or she was not free to go is not determinative, and the subjective intent of the police officers is relevant only to the extent that such intent has been conveyed to the person confronted by the police. (Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975; People v. Plumley (1989), 189 Ill. App. 3d 274, 545 N.E.2d 300.) The test is necessarily an imprecise one because it is designed to assess the coercive effect of the police conduct taken as a whole; indicia of police coercion may include: the time and place of confrontation by the police; the number of police officers present; the presence or absence of the individual’s friends or family; the presence of steps involved in the formal arrest procedure (including physical restraint, show of weapons or force, and booking or fingerprinting); and the manner in which the individual got to the place of interrogation. (People v. Gordon (1990), 198 Ill. App. 3d 791, 556 N.E.2d 573.) A determination will vary with all of the circumstances surrounding the detainment in each case. Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975.

Where a trial judge conducts an evidentiary hearing on a motion to quash an arrest and suppress evidence, the findings will not be disturbed on review unless manifestly erroneous. People v. Davis (1986), 142 Ill. App. 3d 630, 491 N.E.2d 1285.

In the instant case, the State has conceded that the police did not have probable cause to arrest the defendant until after he made his confession. Furthermore, several noncontested facts in this case suggest a coercive effect of the police conduct before his arrest. Defendant remained at Area 6 for over 12 hours during which time he was subjected to numerous interviews all taking place in a small room. Defendant did not sleep and was not allowed to change his wet clothes. Although defendant was allowed to telephone his father, the police denied the father a personal visit. Defendant also testified that the police denied his request to visit his wife and daughter at the hospital because they wanted him to identify Hollywood. Then, defendant was not told he was free to go even after Hollywood left the station. A second shift of police officers, after reading defendant his Miranda rights, interviewed the defendant over five times before defendant confessed.

Other contested facts, if accepted as true as testified to by defendant, also suggest a coercive effect of the police conduct. For example, defendant testified that he was locked in the interview room, handcuffed to the wall, and subjected to physical and physiological abuse by the police. Defendant also testified that Detectives Jin and Thiel repeatedly refused to believe his description of the first version of the murders.

However, the police denied each of the contested allegations. The trial judge, by denying the motion to quash the arrest and suppress the evidence, found these contested facts in favor of the State. Because the trial judge was in a better position to evaluate the testimony and weigh the witnesses’ credibility, we are bound by these findings. People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984.

Other factors belie any coercive effect of the police conduct. Defendant himself testified that he contacted the police, requested their help, and voluntarily accompanied the police to Area 6. Defendant was not photographed or fingerprinted, and he was not told he was under arrest. He was given food, coffee, and cigarettes, and was allowed to use the washroom. Although defendant was not allowed to visit his father, he was allowed to visit his sister.

More importantly, we must compare the police conduct in this case -with the “quality of purposefulness” discussed in Brown v. Elinois (1975), 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262. In Brown, the police, without probable cause, broke into defendant’s apartment, searched it, and then arrested the defendant at gunpoint. The Supreme Court held that the arrest was investigatory and effected in such a manner which gave the appearance of being calculated to cause surprise, fear, and confusion. Here, it is not contested that the defendant was left alone in the interview room on several different occasions. However, it is also not contested that the defendant himself engaged in belligerent and disruptive conduct inside the police station. Defendant attacked one of the alleged assailants, Hollywood, requiring 10 to 15 officers to restrain defendant. He also asked his sister for her gun so that he could attack Hollywood again. Later, defendant verbally assaulted Detective Yawger requiring the removal of Yawger from the interview room. In light of these facts, to the extent that the defendant’s belligerence led the police to believe that defendant was hysterical over the loss of his wife and daughter, the police conduct was calculated to prevent, not cause, surprise, fear, and confusion.

We are also cognizant of the various Illinois opinions which support the arguments of both the defendant and the State. In People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046, the defendant spent 12 hours in the police station before he gave a detailed confession. The court concluded that there was no question that the defendant was involuntarily detained for investigative purposes. Here, the defendant remained at Area 6 for over 12 hours during which time he was interviewed by two separate shifts of police officers. Defendant argues that this course of conduct cannot fairly be said to have had any other purpose other than to wear down the defendant’s will.

However, the State argues that these facts do not constitute conclusive evidence of an illegal detention. In People v. Davis (1986), 142 Ill. App. 3d 630, 491 N.E.2d 1285, after the defendant initiated contact with the police, defendant voluntarily accompanied the police to the station to aid in the investigation of the murder of the defendant’s neighbor. Defendant remained there for 14 hours during which time two separate shifts of officers interviewed the defendant. The court found that no illegal detention occurred. Accord People v. Plumley (1989), 189 Ill. App. 3d 274, 545 N.E.2d 300; People v. Collins (1989), 182 Ill. App. 3d 362, 538 N.E.2d 781.

Finally, it is necessary to address one case in particular, People v. Gordon (1990), 198 Ill. App. 3d 791, 556 N.E.2d 573, a copy of which defendant appended to his appellate brief. Defendant implies that, because this same appellate division delivered the Gordon opinion, we should apply it in the instant case. Instead, we have analyzed Gordon to determine whether the contrary disposition by the trial judge in the instant case was manifestly erroneous.

In Gordon, three or four police officers drove their squad cars to the apartment of the defendant’s aunt, ostensibly for the purpose of investigating the whereabouts of Johnny Green, a suspect for a murder. The defendant and three other men were at the apartment. The officers asked the defendant his name and told him he was under arrest. The officers stated they wanted to talk to him at the police station because it would be a better climate for an interview. Defendant argued that there was no need to take him to the police station and that he would talk to them in the apartment. Without knowing how long defendant would be detained, defendant was taken to a small interview room at the police station for questioning. Defendant told the police he did not know the whereabouts of Johnny Green. At around 12:45 a.m., the police informed the defendant of his Miranda rights and acquired the defendant’s consent to take a polygraph exam. Because the police believed that the defendant had been drinking, the police suggested that defendant sleep in the station to insure his sobriety for the exam. Defendant was not permitted to make a telephone call or to communicate with anyone. The police officers testified at trial that defendant was never handcuffed and the door to the interview room was unlocked, although defendant vehemently testified otherwise. In the morning, the defendant, after being placed in the back seat of a locked squad car, told the police the polygraph exam would be unnecessary and confessed to participating in the murder. The trial court ruled that, even if the police officers’ testimony was accepted as true, the conduct of the police violated the rights of the defendant who, at least by the morning after his initial questioning, was considered a suspect.

Here, the defendant and not the police initiated the contact. After the police arrived at the scene of the murders, the defendant voluntarily accompanied the police to Area 6 to aid in the investigation. Defendant was allowed to make a telephone call and he visited with his sister. Defendant was not asked to take a polygraph exam. Furthermore, the record shows that the purpose of the police conduct here, even if it is accepted that defendant was at times locked into the interview room, was not to detain defendant because he was a suspect. Rather, the purpose of the police conduct here was to prevent the surprise, fear, and confusion caused by defendant’s belligerent and disruptive conduct. Although defendant stayed at Area 6 for over 12 hours before he confessed, the record shows that police treated defendant as a bereaved husband who desperately wanted to assist the police in the apprehension of the murderers of his wife and daughter.

In view of these circumstances, the trial judge determined that a reasonable, innocent person would have felt free to leave Area 6. Therefore, the trial court denied defendant’s motion to quash the arrest and suppress his confession. We hold that, pursuant to the trial judge’s findings of fact and the pertaining case law, the ruling was not manifestly erroneous. Because we have held that no illegal detention occurred, it is not necessary to address whether there was a causal connection between the illegal detention and defendant’s confession thereby requiring suppression of the confession.

The defendant also argues on appeal that the trial judge erred by admitting the testimony of Jacqueline’s sisters. Although there is a general rule that testimony by a murder victim’s surviving spouse or family members is immaterial and prejudicial (People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202), there is no complete bar to the admission of such testimony (People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38). Furthermore, the failure to object to such testimony has been held to constitute waiver. (People v. Freeman (1987), 162 Ill. App. 3d 1080, 516 N.E.2d 440.) Here, the defendant failed to object to the testimony of Jacqueline’s sisters both at trial and in the post-trial motions. Therefore, we hold that the defendant has waived his right to argue this issue on appeal.

Defendant responds, however, that even if the issue was waived, the admission of the testimony in this case was plain error. (People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202.) We disagree. The admission of the testimony of Jacqueline’s sisters was not plain error because it was not introduced incidentally; rather, the testimony was introduced because it was in fact material to the disposition of the case. The testimony of both sisters was material to the extent that it identified the victims, described the relationship between the victims and the defendant, and established that the victims were alive and in the presence of the defendant on the night of December 24, 1987. The remaining portions of the testimony merely provided background information and did not unduly inflame the jury. We hold that the trial judge’s admission of the testimony was not plain error.

Lastly, the defendant filed and argued a pro se post-trial motion for a new trial based on ineffective assistance of counsel. The defendant claimed that his counsel acted with the prosecution “in direct collusion to intentionally and recklessly suppress, conceal, and or exclude vital exculpatory evidence from the trial.” After a hearing, the trial judge denied the motion. Later, the defendant filed an addendum to his post-trial motion which contained specific factual allegations in support of the motion. After another hearing, the trial judge denied the motion. Defendant now contends, citing People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, that the trial judge erred in not appointing new counsel independent of the public defender’s office to evaluate the defendant’s claim. In Krankel, both the State and the defendant agreed that the defendant should have had counsel, other than his originally appointed counsel, appointed to represent him at the post-trial hearing in regard to his allegation that he received ineffective assistance of counsel.

However, appointment of counsel is not required every time a defendant’s post-trial motions include allegations of ineffective assistance of counsel; it is not necessary to appoint new counsel where a trial judge finds the claim to be spurious, and such a finding will not be overturned on appeal unless the finding is manifestly erroneous. (People v. Brandon (1987), 157 Ill. App. 3d 835, 510 N.E.2d 1005.) In Brandon, the defendant’s pro se post-trial motion alleged a misunderstanding between himself and his counsel over the availability of a mistrial in the post-trial motion presented by his counsel, it criticized the effectiveness of counsel’s cross-examination, and it criticized counsel’s failure to adequately prepare for and defend against the State’s closing argument. The court held that the allegations, even if taken as true, did not establish substantial prejudice or show how the result of the trial would have differed. Therefore, defendant’s request for the appointment of independent counsel was properly denied.

Here, the trial judge conducted not only one, but two hearings on the defendant’s claims and concluded that they were “totally without merit.” In other words, the trial judge found defendant’s claims to be spurious. In light of both hearings, we hold that the trial judge’s ruling denying the defendant’s request for the appointment of new counsel to independently evaluate his claims of ineffective assistance of counsel was not manifestly erroneous.

Affirmed.

GORDON and McNULTY, JJ., concur.


text:
    DEBRA DAL PONTE, as Independent Adm’r of the Estate of John Charles Dal Ponte, et al., Plaintiffs and Appellants-Respondents, v. NORTHERN MANITOBA NATIVE LODGES, INC., Defendant-Appellee (Nelson Keeper et al., Defendants-Petitioners).
    First District (5th Division)
    Nos. 1—89—1186, 1—89—1196 cons.
    Opinion filed October 11, 1991.

      Joseph R. Curdo, Ltd., and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellants.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo and Christine L. Olson, of counsel), for appellee.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Bridgman, Michael A. Pollard, Karen Kies DeGrand, Donald J. Hayden, and Oran F. Whiting, of counsel), for Nelson Keeper and Fishing Lake Lodge.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Defendants, Fishing Lake Lodge (Lodge) and Nelson Keeper, appeal under Supreme Court Rule 306(a)(1)(iii) (134 Ill. 2d R. 306(a)(1)(iii)) from an order denying their motion to dismiss for lack of personal jurisdiction. Plaintiffs, the Dal Ponte family, appeal under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) from an order dismissing defendant, Northern Manitoba Native Lodges, Inc. (Northern Manitoba), for lack of personal jurisdiction. The appeals were subsequently consolidated. We consider: (1) whether Northern Manitoba’s participation in trade shows in Illinois was sufficient to find that the Lodge, Keeper, and Northern Manitoba were doing business in Illinois; and (2) whether plaintiffs’ cause of action arose from Northern Manitoba’s participation in trade shows in Illinois and subjected the Lodge, Keeper, and Northern Manitoba to jurisdiction under the long-arm statute. We affirm in part, reverse in part, and remand.

Plaintiffs filed a wrongful death action seeking damages for the death of John Charles Dal Ponte (Dal Ponte) against the Lodge, Keeper, and Northern Manitoba. In May of 1987, Dal Ponte drowned in Manitoba, Canada, when the boat he was in capsized while he and a group of other fishermen were on their way to the Lodge. Plaintiffs alleged that the Lodge and Keeper owned and operated the boat involved in the accident. They also alleged that Northern Manitoba entered into a contract on the Lodge’s behalf, during a sport fishing show in Illinois, to provide safe transportation for the fishing trip.

The Lodge, Keeper, and Northern Manitoba each filed a special and limited appearance and moved to dismiss the complaint for lack of personal jurisdiction. The following facts are based on the depositions and affidavits presented for the motions to dismiss.

The Lodge, located and incorporated in Manitoba, Canada, provided lodging and fishing guide services during the four-month fishing season. The Lodge was not registered to do business in Illinois and did not have an office, employees, or agents in Illinois. Keeper, who owned the Lodge, was a Canadian resident.

The Lodge accepted reservations directly or through its membership in Northern Manitoba. In 1987, the year the accident occurred, 15% to 25% of the Lodge’s reservations were made through Northern Manitoba.

Northern Manitoba was a Canadian corporation that handled the travel arrangements for guests at its member fishing lodges for a commission. Its office was located in Winnepeg, Canada. Its shareholders and officers were owners of various lodges located in Manitoba, Canada, where they were residents. Keeper was an officer. The purpose of Northern Manitoba was to promote, market, and expedite travel arrangements for its member lodges. Northern Manitoba was not registered to do business in Illinois, and it did not have employees or agents permanently located in Illinois. However, in addition to operating out of its office in Canada, it rented a booth at an annual trade show in Illinois since 1981. During the shows, Northern Manitoba distributed brochures and travel information and accepted reservations and deposits for member lodges. In 1987, it participated in one trade show in Illinois, for approximately 12 days, and may have also participated in one other show in Illinois. Northern Manitoba did not have a record of the number of reservations it made during the show. Dal Ponte’s fishing trip at the Lodge was not reserved through Northern Manitoba.

In plaintiffs’ response to the motions to dismiss, they relied on Northern Manitoba’s business records, which are not in the record on appeal. Plaintiffs stated that, without reference to year, 25.7% to 38.5% of Northern Manitoba’s reservations were made by “persons from Illinois.” Also, 17% to 23.1% of the Lodge’s reservations were made by “persons from Illinois.”

Dal Ponte’s fishing trip was originally reserved in January of 1987 at another lodge, Bolton Lake Lodge, through Northern Manitoba while Robert Carlson, a member of Dal Ponte’s fishing group, was attending a sport fishing show in Illinois. However, Northern Manitoba subsequently cancelled the reservation and returned the deposit because Bolton Lake Lodge did not open that year.

When the trip was cancelled, Joe Gurosh, another member of Dal Ponte’s fishing group, telephoned the Lodge in Canada and made a reservation for the group. He sent a deposit check to the Lodge in Canada. Gurosh testified at his deposition that Carlson told him that when the reservation was cancelled Northern Manitoba suggested the Lodge as an alternative.

In ruling on the Lodge and Keeper’s motion to dismiss, the trial judge found that Northern Manitoba was an agent for the Lodge and Keeper and its participation in trade shows amounted to doing business in Illinois. As a result, the Lodge and Keeper were subject to personal jurisdiction in Illinois and their motion to dismiss was denied. They filed a petition with this court for leave to appeal under Rule 306(a)(l)(iii) which was granted.

Subsequently, the trial judge found, for reasons not in the record, that Northern Manitoba was not subject to jurisdiction in Illinois and granted its motion to dismiss. A finding was entered pursuant to Rule 304(a) that the order was final and there was no just reason to delay enforcement or appeal and plaintiffs appealed.

Opinion

A nonresident corporation is subject to jurisdiction in Illinois under either the “doing business” rule or the long-arm statute (Ill. Rev. Stat. 1989, ch. 110, par. 2—209). (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847.) The burden of proving that a nonresident defendant is subject to jurisdiction is on the party seeking to impose jurisdiction. Konicki v. Wirta (1988), 169 Ill. App. 3d 21, 523 N.E.2d 160.

Plaintiffs argue that jurisdiction is proper over the Lodge, Keeper, and Northern Manitoba under the doing business rule. Plaintiffs assert that the Lodge and Keeper authorized Northern Manitoba to enter into contracts in Illinois on their behalf and that Northern Manitoba’s activities in Illinois were sufficient to find that they were doing business in Illinois.

Under the doing business rule, a nonresident corporation is considered to have consented to jurisdiction if it is doing business in the State. (Cook, 87 Ill. 2d 190, 429 N.E.2d 847.) There is no test to make the determination of what activity amounts to doing business; however, the character and extent of the business must be sufficient to justify an inference that the nonresident corporation has submitted to the jurisdiction and laws of the State. (Cook, 87 Ill. 2d 190, 429 N.E.2d 847.) There must be regular activity and “ ‘not occasionally or casually, but with a fair measure of perma nence and continuity.’ ” (Cook, 87 Ill. 2d at 203, 429 N.E.2d at 853, quoting Tauza v. Susquehanna Coal Co. (1917), 220 N.Y. 259, 267, 115 N.E. 915, 917.) The determination of whether a corporation was doing business in the State is dependent on the unique facts of the case. Colletti v. Crudele (1988), 169 Ill. App. 3d 1068, 523 N.E.2d 1222.

Plaintiffs rely on Colletti (169 Ill. App. 3d 1068, 523 N.E.2d 1222) to support their argument that Northern Manitoba was doing business in Illinois. In Colletti, a Florida corporation involved in interstate transport made approximately 12 trips a year with stops in Illinois which generated less than 1% of its revenue. It also travelled through Illinois on occasion without making a stop. The corporation always attempted to transport cargo from Illinois on its return trips. It also had an agent for service of process in Illinois and had consented to jurisdiction in Illinois in three other cases stemming from the same occurrence. The court found that the corporation was doing business in Illinois because its contacts were continuous and systematic and it actively procured business. The court also considered it significant that the corporation had an agent to accept service in Illinois, and the corporation’s consent to jurisdiction in the other cases tipped the balance in favor of finding jurisdiction was proper.

Colletti does not require a finding in this case that Northern Manitoba was doing business in Illinois. In Colletti, the corporation averaged 12 trips a year with stops in Illinois and additional trips through Illinois. This contact with Illinois was more continuous and systematic than Northern Manitoba’s contact of one trade show a year in Illinois. Also in Colletti, the corporation had an agent in Illinois for service of process and consented to jurisdiction in other cases. These factors are not present in this case.

The Lodge, Keeper, and Northern Manitoba rely on two cases they contend are analogous to the present case and support a finding that Illinois does not have jurisdiction: Finnegan v. Les Pourvoiries Fortier, Inc. (1990), 205 Ill. App. 3d 17, 562 N.E.2d 989, and Radosta v. Devil’s Head Ski Lodge (1988), 172 Ill. App. 3d 289, 526 N.E.2d 561.

In Finnegan, the court found that a Canadian corporation, operating a hunting lodge in Canada, was not doing business in Illinois. Other than promotional activity, any connection it had to Illinois was through Joseph Wyer, an Illinois resident. Wyer distributed the lodge’s brochures from a booth at an outdoor show in Illinois and arranged two trips to the lodge. He collected the fees and his commission, made travel arrangements, and acted as a tour guide on one of the trips. The corporation denied that it entered into an agreement with Wyer to promote the lodge, and the court did not consider whether there was an agency relationship. However, the court found that the corporation’s activity in Illinois, either independently or through Wyer, was not regular, systematic, or sufficiently substantial to hold it was doing business in Illinois.

In Radosta, the court found that a Wisconsin ski resort and a Colorado corporation were not doing business in Illinois. Other than advertising, the ski resort’s contacts in Illinois consisted of selling lodging and ski lift tickets in one ski shop and maintaining a booth at an annual ski show. The Colorado corporation leased ski equipment to three Illinois customers. Although the ski resort denied that the ski shop was its agent, the court found that the sale of lodging and lift tickets did not amount to regular business activity. Similarly, the Colorado corporation’s business with three Illinois customers was insufficient. The court also found that the ski resort’s participation in the ski show was transient conduct and not sufficient to find it was doing business in Illinois.

In this case, the actions of Northern Manitoba in Illinois were the sole basis for establishing whether the Lodge, Keeper, and Northern Manitoba were doing business in Illinois. Northern Manitoba’s contact with Illinois was its annual participation in trade shows since 1981 during which it accepted reservations for its member lodges. In 1987, the year the accident occurred, it spent 12 days at a trade show in Illinois.

Northern Manitoba’s actions in Illinois were similar to those considered insufficient in Finnegan and Radosta to establish doing business in Illinois. Its actions of accepting reservations while participating in the trade show do not constitute regular business activity and are more akin to occasional or casual activity. Plaintiffs contend that 25% to 38% of Northern Manitoba’s reservations were from Illinois residents but, even though the documents plaintiffs relied on are not in the record, the percentages do not identify the reservations that were made through the trade shows in Illinois. As a result, Northern Manitoba’s actions in Illinois are insufficient to satisfy the doing business rule.

Similarly, even accepting for the purpose of argument that Northern Manitoba was an agent for the Lodge and Keeper, its actions are also insufficient to find that the Lodge and Keeper were doing business in Illinois. Northern Manitoba accepted a total of 15% to 25% of the Lodge’s reservations in 1987. Plaintiffs contend, also without support in the record, that 17% to 23% of the Lodge’s business was from Dlinois residents. However, there was no indication as to how much of that business was generated by Northern Manitoba at the trade shows in Dlinois.

Although plaintiffs did not specifically raise this argument, we also consider whether the Lodge, Keeper, and Northern Manitoba were subject to jurisdiction under the long-arm statute.

The long-arm statute provides that a nonresident corporation will be subject to jurisdiction for causes of action arising from the “transaction of any business” in the State. Ill. Rev. Stat. 1989, ch. 110, pars. 2—209(a)(1), (f).

In this case, the cause of action was the wrongful death of Dal Ponte during the fishing trip at the Lodge in Canada. The reservations for the trip were made by a member of Dal Ponte’s fishing group directly with the Lodge. Although the group made a previous reservation, at a different lodge, through Northern Manitoba at the trade show, that reservation was cancelled and the deposit was refunded. Northern Manitoba may have suggested the Lodge as an alternative, but this connection is insufficient. The facts establish that plaintiffs’ cause of action did not arise from Northern Manitoba’s actions at the trade show in Illinois. As a result, it was not subject to personal jurisdiction in Illinois under the long-arm statute. Similarly, even assuming Northern Manitoba was their agent, the Lodge and Keeper were also not subject to jurisdiction under the long-arm statute.

For the foregoing reasons, we reverse the order finding personal jurisdiction over the Lodge and Keeper (No. 1—89—1186) and remand for entry of an order dismissing them. We affirm the order dismissing Northern Manitoba for lack of personal jurisdiction (No. 1—89—1196).

Affirmed in part; reversed in part and remanded.

GORDON and McNULTY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. VINCENT HODGE, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—3163
    Opinion filed October 11, 1991.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Carol L. Gaines, and Carmen K. Aguilar, Assistant State’s Attorneys, of counsel), for the People.
    Robert A. Novelle and Philip M. Angelini, both of Serpico, Novelle & Navigato, Ltd., of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant, Vincent Hodge, was charged by indictment with two counts of unlawful use of a firearm by a felon. He filed a motion to suppress certain tape-recorded conversations for the failure of a Federal agent to comply with Illinois eavesdropping laws. (Ill. Rev. Stat. 1989, ch. 38, pars. 14—1 et seq., 108A—1.) The trial court granted defendant’s motion, and the State now appeals.

At the suppression hearing, Mitchell Wido, a special agent with the United States Bureau of Alcohol, Tobacco and Firearms (ATF), testified that in December 1988 he began an investigation of defendant, a convicted felon, regarding his suspected sale of firearms. Defendant had provided a confidential informant with his pager number and requested that the informant call him back “when he had money.” After learning of this conversation, Wido applied to ATF for electronic surveillance material consisting of a telephone induction coil, a transmitter and a tape recorder. ATF approved Wido’s request on December 5,1988.

According to a report prepared by Wido, the confidential informant purchased an Iver-Johnson .38 caliber revolver from the defendant on December 7, 1988. Wido conducted a tape-recorded “overhear” of that purchase. Wido testified that he made no attempt prior to the overhear to comply with the Illinois eavesdropping statutes.

On December 8, Wido contacted ATF Firearms Technology Branch Officer Cohen, who informed Wido that the manufacturing date of the Iver-Johnson revolver could not be determined. Thus, the weapon could not qualify as a “firearm” under the Federal firearms statute and could not be used as the basis for Federal jurisdiction over the offense.

Wido testified that on December 9 and December 10, 1988, he made two more recordings of conversations between defendant and the confidential informant, again without first complying with the directives of the Illinois eavesdropping law. He testified that he believed, despite his discussion with Officer Cohen, that there were still Federal grounds on which to prosecute defendant, under laws governing dealing in firearms while engaged in a business.

In March 1989 Wido submitted a report of his investigation to the United States Attorney’s office, which subsequently declined Federal prosecution of defendant’s case. That office also instructed Wido to contact the State’s Attorney’s office and to turn his reports over to an assistant State’s Attorney for prosecution.

Wido then swore out a warrant for defendant’s arrest in the circuit court, and on August 2, 1989, defendant was arrested by Cicero police. The parties stipulated that the assistant State’s Attorney’s file reflected that Wido’s first communication with the State’s Attorney’s office occurred August 29, 1989. Wido denied making any State or local police agency aware of the specifics of his investigation in the beginning stages. However, he stated that he may have contacted such agencies to request defendant’s photograph or “rap sheet.”

On August 20, 1990, defendant moved to suppress the contents of his recorded conversations on the ground that they were the product of collusion between Wido and State authorities to evade compliance with State eavesdropping laws. (See Ill. Rev. Stat. 1989, ch. 38, par. 108A—9(a).) The trial court granted his motion, and the State now appeals.

The Illinois eavesdropping statute prohibits the use of an eavesdropping device to record all or part of any conversation unless all parties to the conversation consent or one party consents and prior judicial authorization is obtained in accordance with statutory requirements. (Ill. Rev. Stat. 1989, ch. 38, pars. 14—2, 108A—1; People v. Winchell (1986), 140 Ill. App. 3d 244, 246, 488 N.E.2d 620.) In the instant case, there is no dispute that defendant’s conversations of December 7, 9 and 10 were recorded without his consent and without judicial approval. Nevertheless, the State contends that the conversations were improperly suppressed in this case under the authority of People v. Winchell and the cases cited therein.

In Winchell, the trial court permitted the State to introduce videotaped evidence procured jointly by State and Federal agents. The appellate court held that the evidence was properly admitted because the agents had complied with Federal law and the record was devoid of any evidence of collusion to avoid Illinois statutory requirements. (Winchell, 140 Ill. App. 3d at 246-47.) In People v. Fidler (1979), 72 Ill. App. 3d 924, 391 N.E.2d 210, cited to in Winchell, the court reversed the trial court’s suppression order, finding that the eavesdropping had been conducted in accordance with Federal directives, that the actions of the Federal officers were lawfully pursued in the course of a wholly Federal investigation, and that no evidence of collusion existed. In People v. Manna (1981), 96 Ill. App. 3d 506, 516, 421 N.E.2d 542, also cited in Winchell, the court held that evidence gathered jointly by Federal and State authorities, although not in compliance with the Illinois eavesdropping statute, was admissible in absence of evidence of collusion. See also People v. Accardo (1990), 195 Ill. App. 3d 180, 551 N.E.2d 1349 (compliance with a foreign State’s requirements sufficient, absent evidence of collusion to circumvent Illinois eavesdropping requirements).

The State maintains that in this case, as in the cases cited above, the recordings of defendant were admissible because they were made pursuant to a Federal investigation and because there was no hint of collusion in the record. We agree.

There is no written order in the record reflecting an express finding by the trial court that Federal and State agents colluded to avoid Illinois statutory requirements. Rather, the record shows that the trial court heard evidence on the motion to suppress on August 20, 1990, and reserved judgment until October 9, 1990, at which time it delivered an oral decision. Orally, the court granted defendant’s motion to suppress, stating:

“All though [sic] eaves dropping [sic] proceedings conducted by the Federal agents may be admitted in state and criminal proceedings without adhering to the state’s statutory requirements, said proceedings must be free of any and all collusion by federal and state agents if the statutory requirements are to be satisfied. That was not the case in this incident.
The Federal and the State did elude [sic] to avoid the Hlinois requirements.”

According to Webster’s Third New International Dictionary 446 (1986), the word “collude” means “to connive with one another; conspire; plot” and the word “collusion” means “secret agreement; secret cooperation for a fraudulent or deceitful purpose.” Despite the trial court’s ruling, we can find no evidence in this case that the State and Federal agents connived with one another, plotted or conspired to evade the Illinois law on eavesdropping. There is merely evidence that the two agencies cooperated with each other toward the end of determining whether Hodge violated State or Federal gun laws. Such cooperation should be encouraged by the court, not deterred under the guise of a conspiracy or plot to evade the State criminal code.

We conclude that the cited cases require a reversal of the trial court’s granting of defendant’s motion to suppress and a remandment of the case for further proceedings.

Reversed and remanded.

LORENZ, P.J., and McNULTY, J., concur.