author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AUGUSTINE ZAMBRANO, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 88—0275
    Opinion filed August 29, 1989.
    Rehearing denied October 11,1989.

      Abbey G. Fishman, of William A. Swano & Associates, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Joseph G. Howard, and Scott Lane, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Following a bench trial, defendant Augustine Zambrano was convicted of attempted murder, aggravated battery, and unlawful use of a firearm. He was sentenced to 20 years in the Illinois Department of Corrections.

On this appeal, defendant claims that (1) the trial court’s finding of guilt was erroneously based on unreliable identification testimony; (2) the trial court erred in denying his motion to reopen his case in chief to allow a witness to testify; and (3) the trial court improperly shifted the burden of proof by basing its guilty finding on his failure to prove that another person shot the victim.

At trial, John Scott, the victim in this case, testified that on December 21, 1986, he was “working the front door” at the Fire Alarm Lounge in Cicero, Illinois. Scott worked in a well-lit vestibule with two sets of doors. Patrons entered the vestibule through outer doors approximately 15 feet from where Scott sat. Scott checked patrons for valid identification from where he sat inside the vestibule. There was a large, well-lit canopy outside the vestibule.

According to Scott, at approximately 5:30 a.m. on December 21, 1986, defendant and three other men entered the vestibule at the Fire Alarm Lounge. All four men were of Latino or Hispanic origin. Defendant was the first man who came in and was wearing gold chains and a long, gray coat. The second man who came in was wearing a long, black coat, but Scott could not remember what the other two men were wearing. Scott testified that the first man who came in was approximately 5 feet 9 inches tall, had medium length hair, a mustache, and “a little hair down his chin.”

Scott testified that defendant approached him and produced a valid Illinois driver’s license with a photograph. One of the other three men produced an invalid identification and the other two did not have any identification. Scott spoke to defendant from a distance of about two feet and told defendant that his friends could not come in because they did not have proper identification. All four men then sat off to the side in a waiting area. Approximately five to eight minutes later, defendant walked up to Scott and asked whether he could let his friends in. Scott told defendant that he could come in, but his friends could not. During this conversation, Scott stood approximately two to three feet from defendant and could clearly see his face and features.

At that point, according to Scott, “comments were being said” and Scott approached the men and told them they would have to leave. All four men then left the vestibule and stood outside under the canopy. The two men without any identification were the first to leave the vestibule and defendant was the last to leave. All four men stood outside under the canopy at a distance of four feet, while Scott stood in the doorway looking directly at them. According to Scott, defendant was the third man from his right. Scott told the men to go home, turned to go inside, and then, “out of the corner of [his] eye,[,]” saw the third man from his right run towards him holding a gun in his hand. That man shot Scott in the stomach and all four men then fled.

Five days after the shooting, while in the hospital receiving medical treatment for his gunshot wound, Scott identified defendant as the man who shot him from a photographic lineup. At defendant’s trial, Scott testified that there was “no doubt in [his] mind” that defendant shot him.

Walter Dzendzeluk testified that at approximately 5:30 a.m. on December 21, 1986, he was in the vestibule at the Fire Alarm Lounge. Dzendzeluk had been to two other taverns that night, and between 10 p.m. and 5:30 a.m., had consumed approximately 12 beers. Dzendzeluk saw Scott standing in the doorway speaking to defendant. According to Dzendzeluk, defendant was standing just outside the doorway at that time and was wearing a long, gray coat. Dzendzeluk, who is 6 feet tall, walked up behind Scott, who is 6 feet 5 inches tall, looked over his shoulder and saw defendant’s face clearly from a distance of approximately four feet. Dzendzeluk stood directly behind Scott one foot from the door for at most 60 seconds. Dzendzeluk “heard a shot” that came “[f]rom the gentleman standing, facing the doorway.” According to Dzendzeluk, the man who shot Scott fled after the shooting.

Dzendzeluk identified defendant as the shooter at a police lineup that morning. At defendant’s trial, Dzendzeluk identified defendant in court as the man who was standing outside the doorway facing him and also as the man who shot Scott.

Alex Torrez, a friend of defendant’s, testified on defendant’s behalf. Torrez testified that he went to the Fire Alarm Lounge at approximately 5:30 a.m. on December 21, 1986, carrying a .22 caliber gun. Torrez showed his identification card to Scott, but Scott told him he could not enter and called him a “spick.” Torrez claimed that Scott pushed him down onto the sidewalk, reached for something that Torrez thought was a gun or a knife, and then “came at him.” Torrez “got scared,” pulled out his gun, shot Scott from a distance of about eight feet, and then ran away. According to Torrez, at the time of the shooting, defendant was talking to someone off to the side to the left of the doors.

At the time of defendant’s trial, Torrez was 20 years old and had two criminal charges pending against him. Torrez admitted that he never spoke with police about the incident at the Fire Alarm Lounge, but discussed his testimony with defendant’s lawyer and Gregory Gunter, another defense witness. According to Torrez, on the same day as the shooting he had defendant’s lawyer transcribe a statement in which he admitted shooting Scott.

Erin Johnson testified that, on December 21, 1986, after she finished her SVa-hour shift as a waitress in a restaurant, she drove to the Fire Alarm Lounge with two men. One of those men was Brian Freeze, whose testimony was the subject of defendant’s motion to reopen his case in chief. That motion is discussed below.

Johnson testified that she arrived at the Fire Alarm Lounge between 4:30 and 5 a.m. and, from a point about eight feet from the door and off to the side, saw an argument between three men, including defendant and Scott. Johnson saw Torrez lift up his coat and then heard a “pop.” At the time she heard the “pop,” Torrez had one hand in his pocket. According to Johnson, defendant was wearing a long, black coat at that time and did not have a gun in his hand. After hearing the “pop,” Johnson saw Torrez turn and run away, and then saw a “glare” that “appeared to be” a gun. On cross-examination, Johnson admitted that she was not “exactly” sure that she saw a gun.

Johnson testified that she spoke with defendant’s investigator 10 days after the shooting. The investigator showed Johnson several photographs of the Fire Alarm Lounge and one photograph of Alex Torrez. Johnson admitted that she was never shown a photograph of defendant and never viewed a lineup.

David Morrison, another defense witness, testified that he arrived at the Fire Alarm Lounge between 4 and 4:30 a.m. on December 21, 1986. Morrison had been working as a bouncer at another tavern from 9 p.m. until 4 a.m. After arriving at the Fire Alarm Lounge, Morrison drank three or four beers and then entered the vestibule to buy cigarettes. There was a commotion at the door, approximately 10 to 15 feet from the cigarette machine where Morrison was standing. Morrison claimed he could see out the front door, even though Scott was standing in the doorway.

Morrison testified that he heard a shot and saw defendant outside the doorway with his hands down by his side and wearing a black coat. Morrison did not see a gun in defendant’s hands. Morrison admitted on cross-examination that he did not see the shooting and did not know who shot Scott.

Finally, Gregory Gunter testified that on December 21, 1986, he was at the Fire Alarm Lounge and drank six beers between midnight and 5 a.m. Gunter claimed he spoke with defendant that night outside the Fire Alarm Lounge, while defendant’s friends, including Torrez, were arguing with Scott. While Gunter was talking to defendant, he heard a shot and then saw people running away. According to Gunter, defendant was wearing a long, black coat at the time of the shooting and did not have a gun. Gunter was a friend of defendant’s and has been convicted of auto theft and robbery.

Defendant was found guilty by the trial court and judgment was entered on October 27, 1987. On November 24, 1987, defendant moved to reopen his case in chief for the purpose of allowing Brian Freeze to testify on defendant’s behalf. Brian Freeze was one of the men who was with Erin Johnson on the night of the shooting. Defendant’s lawyer filed an affidavit stating that he was first able to contact Brian Freeze on November 17, 1987. Defendant’s lawyer stated that he was given Freeze’s telephone number in California after visiting Freeze’s mother in Burbank, Illinois. The affidavit indicates that defendant’s lawyer first learned that Brian Freeze was a potential witness when his name was mentioned during the course of Erin Johnson’s testimony at trial. However, the record reflects that defendant’s lawyer knew Brian Freeze’s name prior to trial.

On December 8, 1987, after reviewing the trial transcript, the trial court denied defendant’s motion. The court noted that defendant knew Brian Freeze’s name before trial, that the- case had been “continued two or three times for testimony,” but that defendant did not ask for a continuance when Erin Johnson testified at trial that she was with Freeze. The court also denied defendant’s request to make an offer of proof, stating that “[y]ou cannot make a record or offer of proof of what would be testified to at trial when he [Freeze] was denied the right to testify because of the lack of due diligence on the part of the defense.” The court then noted that defendant “told the court what [Freeze would] testify to.” Defendant’s lawyer had, in fact, stated that Freeze was prepared to testify that Torrez was the shooter and “knew certain facts about the shooting incident” that would corroborate Torrez’ testimony.

On December 4, 1987, defendant’s lawyer took Freeze’s deposition. At his deposition, Freeze stated that he was “absolutely” sure defendant was not the shooter. Defendant then filed a supplemental motion for a new trial which included as grounds for error the trial court’s refusal to allow Freeze to testify on defendant’s behalf. On January 19, 1988, defendant’s supplemental motion for a new trial was denied. The court specifically refused to grant a new trial based on Freeze’s deposition testimony. The court noted that the deposition testimony was “cumulative, almost verbatim with Mr. Torrez’ alleged confession.” The trial judge also stated that he had looked in the telephone book and found the telephone number of Brian Freeze’s father. The trial court then heard arguments in aggravation and mitigation and sentenced defendant to 20 years in the Illinois Department of Corrections.

I

Defendant maintains that the trial court’s finding of guilty was erroneously based on unreliable identification testimony. Specifically, defendant contends that Scott’s testimony was unreliable because his initial description of his assailant was vague, considering Scott’s proximity to his assailant, and also inconsistent with his testimony at trial. Defendant maintains further that Dzendzeluk’s testimony was unreliable because Dzendzeluk was intoxicated and his vision was obstructed. Defendant claims that Dzendzeluk had had 14 beers before the shooting and admitted at trial that he was intoxicated. Defendant also claims that Dzendzeluk did not testify that he saw the shooting and admitted that his view was obstructed by Scott, who was standing between him and the shooter.

In a bench trial it is the function of the trial judge to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence. (People v. Berland (1978), 74 Ill. 2d 286, 305-06, 385 N.E.2d 649; People v. Mendoza (1978), 62 Ill. App. 3d 609, 615, 378 N.E.2d 1318.) Moreover, the reviewing court will not set aside the trial court’s judgment unless the proof is so unsatisfactory, improbable, or implausible as to justify a reasonable doubt as to the defendant’s guilt. (People v. Johnson (1986), 114 Ill. 2d 170, 190, 499 N.E.2d 1355; People v. Mendoza (1978), 62 Ill. App. 3d 609, 615, 378 N.E.2d 1318.) Finally, “where the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made.” People v. Mendoza (1978), 62 Ill. App. 3d 609, 615, 378 N.E.2d 1318; see also People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317 (“[a] single witness’ identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification”).

Illinois courts have generally followed the Supreme Court’s decision in Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375, and considered five factors in assessing identification testimony. They are: (1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation. People v. Slim (1989), 127 Ill. 2d 302, 308, 537 N.E.2d 317; People v. Dean (1987), 156 Ill. App. 3d 344, 351, 509 N.E.2d 618.

In this case, only the second, third, and fifth factors are at issue. Specifically, defendant does not argue that Scott lacked sufficient opportunity to view his assailant, except for noting that at the time of the actual shooting, Scott saw the shooter only “out of the corner of [his] eye.” Indeed, defendant argues that Scott’s testimony was unreliable because of discrepancies in Scott’s initial description, despite the proximity between Scott and his assailant. Defendant also does not raise any issue with respect to the level of certainty in either Scott’s lineup or in-court identification. Instead, defendant argues that Scott’s testimony was unreliable because Scott lacked sufficient attention due to anxiety, fear, or excitement, because Scott’s initial description of defendant was inaccurate, and because five days had elapsed between the shooting and Scott’s lineup identification.

Each of defendant’s contentions, however, necessarily fails. First, there was no evidence adduced at trial that Scott was anxious, afraid, or excited when defendant was standing either in the vestibule at the Fire Alarm Lounge, or outside underneath the canopy. Scott testified only that he was “scared” after he was shot. Thus, Scott’s degree of attention plainly weighs in favor of upholding a finding that his identification testimony was reliable.

Second, with respect to the accuracy of Scott’s initial description of his assailant, defendant’s reliance on this court’s decision in People v. Slim (1987), 164 Ill. App. 3d 519, 518 N.E.2d 154, is misplaced. That decision was reversed by the Illinois Supreme Court in People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317. In that case, the robbery victim initially described his assailant as 5 feet 3 inches tall and 135 pounds, but stated at trial that he did not notice anything unusual about his assailant’s teeth or mouth, even though the robber stood facing him at a distance of one or two feet. The defendant presented evidence at trial that at the time of the robbery he was 5 feet 9 inches tall, 165 pounds, wore braces and had unusually thick lips. Moreover, the defendant’s father gave alibi evidence, stating that the defendant was home asleep at the time of the robbery. However, the victim positively identified the defendant at a lineup conducted 11 days after the robbery and also identified the defendant in court.

The defendant in Slim was convicted following a bench trial and the appellate court reversed. The appellate court stated that the victim’s identification testimony was unreliable because of discrepancies between the defendant’s appearance and the victim’s initial description of his assailant’s body size; because of the victim’s failure to describe other features such as his assailant’s hair, clothes, or the presence of braces or unusually thick lips; and, finally, because the defendant had given an unimpeached alibi.

However, the Illinois Supreme Court reversed, holding that the discrepancies in body size and the victim’s failure to note unusual facial features did not, by themselves, create a reasonable doubt as to the defendant’s guilt. The court stated that “[t]he presence of discrepancies or omissions in a witness’ description of the accused do not in and of themselves generate a reasonable doubt as long as a positive identification has been made”; that such discrepancies or omissions “simply affect the weight to be given the identification testimony”; and that “a witness’ positive identification can be sufficient even though the witness gives only a general description based on the total impression the accused’s appearance made.” (People v. Slim (1989), 127 Ill. 2d 302, 308-09, 537 N.E.2d 317.) The court also noted that the weight to be given to the defendant’s alibi evidence was a question of credibility for the trier of fact.

In this case, Scott initially described the shooter as a male Latino, approximately 5 feet 7 inches to 5 feet 10 inches tall, with a mustache and wearing a dark-colored coat. Scott was only a few feet away from his assailant, yet failed to give a more specific description. In addition, Scott testified at trial, contrary to his initial description, that defendant was wearing a gray coat and that one of the men accompanying defendant was wearing a black coat. However, the discrepancies and omissions in Scott’s description of his assailant were plainly not as great as the discrepancies and omissions in Slim. Moreover, like the witness in Slim, Scott positively identified defendant at a lineup and again in court. Thus, under the Illinois Supreme Court’s decision in Slim, Scott’s general description of the shooter and the discrepancy in his testimony with respect to the color of defendant’s coat plainly did not, by themselves, raise a reasonable doubt as to defendant’s guilt.

Defendant’s argument that Scott’s lineup identification of defendant was unreliable also fails under the Illinois Supreme Court’s decision in Slim. In Slim, 11 days had elapsed before the victim identified the defendant at a lineup. The court did not find that interval significant, “[c]onsidering the nature of the event and other circumstances.” (People v. Slim (1989), 127 Ill. 2d 302, 313, 537 N.E.2d 317.) In this case, although Scott was in the hospital receiving treatment for a gunshot wound at the time the photographic lineup was conducted, he did not testify at trial, contrary to defendant’s assertion, that he ever “lost consciousness.” Moreover, Scott testified at trial that he was “absolutely” sure defendant was the shooter. And Scott’s identification testimony was corroborated by the testimony of Walter Dzendzeluk, who stated that he “clearly saw” defendant in the doorway talking to Scott at the time of the shooting. In short, Scott’s condition at the hospital, or the delay in conducting the lineup, are not sufficient grounds for setting aside the trial court’s judgment.

Since Scott’s identification testimony alone was sufficient to sustain defendant’s conviction, it is not necessary to consider the reliability of Dzendzeluk’s testimony. In any event, we note that Dzendzeluk was looking over Scott’s shoulder and testified that he could clearly see defendant’s face. We also note that Dzendzeluk positively identified defendant at a lineup conducted on the same morning as the shooting.

Finally, in crediting Scott’s testimony, the trial court necessarily discredited the testimony of each defense witness who stated that defendant was not the shooter. The trial court noted that defendant’s most credible witness, Erin Johnson, was not sure if she saw a gun. The record also reflects that David Morrison never saw the shooting and that Gregory Gunter’s testimony contradicted Johnson’s testimony. Gunter was also a friend of defendant’s and a convicted felon. Alex Torrez’ testimony was discredited primarily because he was the only witness who testified that he was physically assaulted by Scott. The trial court also saw Torrez flash a gang signal at defendant and even suggested that Torrez should have been investigated for perjury. Accordingly, the trial court reasonably concluded that the testimony of the defense witnesses was not credible and that defendant was proven guilty beyond a reasonable doubt based on the testimony of the State’s witnesses.

II

Defendant maintains next that the trial court erred in denying his motion to reopen his case in chief to allow Brian Freeze to testify. Specifically, defendant argues that the four-part test set forth in People v. Molstad (1984), 101 Ill. 2d 128, 461 N.E.2d 398, applicable to motions for a new trial based on newly discovered evidence, applies as well to motions to reopen a case. Thus, defendant asserts that a motion to reopen a case should be granted if (1) the evidence was recently discovered since the trial; (2) the evidence was not discoverable before the trial by the exercise of due diligence; (3) the evidence is not cumulative in nature; and (4) the evidence is of such a conclusive nature that it would likely change the result in the trial. Defendant maintains that the proffered testimony of Brian Freeze satisfied this four-part test and, accordingly, should have been allowed. Defendant maintains further that he was denied due process of law when the trial court denied his motion to reopen the case after conducting “its own private investigation” to determine Freeze’s whereabouts. Finally, defendant argues that the trial court erred in precluding him from making a formal offer of proof regarding the substance of Freeze’s proffered testimony.

However, we hold that defendant’s motion to reopen his case in chief was properly denied. The decision to grant a defendant’s motion to reopen his case for further testimony is "within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of that discretion. (People v. Shore (1984), 129 Ill. App. 3d 443, 472 N.E.2d 512.) In People v. Reese (1973), 54 Ill. 2d 51, 59, 294 N.E.2d 288, the Illinois Supreme Court stated that motions for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts. The court stated further: “[I]n order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice, as a last resort, to escape the consequences of an adverse verdict, such [motion] should always be subjected to the closest scrutiny by the court ***.” Finally, the court stated that “the burden is upon the [movant] to rebut the presumption that the verdict is correct and to show there had been no lack of diligence.” (Reese, 54 Ill. 2d at 59.) In People v. Shore (1984), 129 Ill. App. 3d 443, 462, 472 N.E.2d 512, the court explained that the same principles are applicable to a defendant’s post-trial motion to reopen his case.

In this case, the record reflects that defendant did not exercise due diligence in contacting Freeze and that Freeze’s proffered testimony was not credible and would not have changed the outcome of the trial. Specifically, the record reflects that defendant knew Freeze’s name prior to trial and knew that Freeze lived in California, yet never requested a continuance for the purpose of contacting Freeze. It was not until after judgment of guilt was entered that defendant made the effort to contact Freeze’s mother and learn Freeze’s telephone number in California. Indeed, the record reflects that defense counsel was surprised by the outcome of this case and, accordingly, did not expect that it would be necessary to call Freeze as a witness at trial.

Moreover, defense counsel’s affidavit, attached to defendant’s motion to reopen his case, asserts that defense counsel first learned Freeze’s name during the course of Erin Johnson’s testimony at trial. However, on this appeal, defendant admits that Freeze was known to be a potential witness at discovery before trial. Maintaining such contrary positions appears to be the type of “fraud and imposition which defeated parties may be tempted to practice” alluded to by the Illinois Supreme Court in Reese. (People v. Reese (1973), 54 Ill. 2d 51, 59, 294 N.E.2d 288.) Accordingly, we do not find it necessary to decide whether the four-part test set forth in Molstad applies to motions to reopen a case, because we find that defendant failed to show no lack of diligence in contacting Freeze. Under Reese and Shore, it follows that the trial court did not abuse its discretion in denying defendant’s motion.

Defendant’s argument, that he was denied due process because the trial court’s decision to deny his motion was based on a “private investigation” is likewise without merit. The record reflects that the trial court denied defendant’s motion to reopen his case because of defense counsel’s lack of due diligence and because Freeze’s deposition was taken after trial and was “almost verbatim with Mr. Torrez’ alleged confession.” The trial court indicated that he considered the “totality of circumstances” and only noted that it would have been easy for defense counsel to look up Freeze’s name in the telephone book.

With respect to the trial court’s refusal to allow defendant to make an offer of proof, the record reflects that the trial court was apprised of the substance of Freeze’s testimony at defendant’s motion to reopen his case and again at defendant’s motion for a new trial. When defendant first presented his motion to reopen the case, he indicated that Freeze was prepared to identify Alex Torrez as the shooter. Freeze’s deposition testimony was then made part of the record and the trial court considered that testimony in ruling on defendant’s motion for a new trial. On this appeal, defendant indicates only that he “would have provided a detailed account that Mr. Freeze witnessed the argument between Alex Torrez and John Scott.” Significantly, defendant has not offered any such “detailed account” on this appeal except for what is already reflected in the record. Accordingly, there is no merit to defendant’s argument that any error resulted from the trial court’s refusal to allow an offer of proof.

Ill

Defendant contends that the trial court improperly shifted the burden of proof by basing its guilty finding on defendant’s failure to prove that Alex Torrez was the shooter. In support of his argument, defendant notes that the trial court discredited the testimony of Erin Johnson because she was uncertain whether she saw Torrez with a gun; discredited Gregory Gunter’s testimony because it was inconsistent with the testimony of other witnesses; and failed to consider David Morrison’s testimony. Defendant also argues that the trial court lessened the State’s burden by discrediting Torrez’ testimony, despite the lack of any evidence that Torrez would lie.

However, we are not persuaded by defendant’s argument. The record reflects that the trial court based its guilty finding on the testimony of the State’s witnesses. There is no indication in the record that the trial court based its guilty finding on defendant’s failure to prove that Torrez was the shooter. Rather, the trial court simply discredited the testimony of the defense witnesses. In particular, the trial court found that Johnson’s testimony was not credible because she was not sure she saw a gun and, therefore, was not sure who shot Scott. The trial court likewise discredited Gunter’s testimony because he not only was a convicted felon, but also gave a version of the events that was inconsistent with the testimony of the other witnesses at trial. Although the trial court did not comment on Morrison’s testimony, the trial court did note that the only witnesses who testified that they saw the shooting were the State’s witnesses and Alex Torrez. Because Morrison did not see the shooting, the trial court properly discredited his testimony.

Finally, the trial court did not lessen the State’s burden by discrediting Torrez’ testimony. On the contrary, the trial court’s remark, that Alex Torrez should be investigated for perjury, indicates that the trial court simply did not find Torrez to be a credible witness. Indeed, Torrez was the only witness who testified that Scott “came at him” and threw him to the ground, and the record reflects that the trial court saw Torrez flash a gang sign to defendant when he was leaving the witness stand.

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

Affirmed.

BILANDIC, P.J., and SCARIANO, J., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    WENTWORTH NURSING CENTER et al., Plaintiffs-Appellants, v. THE DIRECTOR OF THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.
    First District (3rd Division)
    Nos. 1 — 87—1114 through 1 — 87—1116 cons.
    Opinion filed August 30, 1989.
    Rehearing denied October 4, 1989.

      Janet L. Hermann, of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Valerie Peiler, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, Wentworth Nursing Center, Heather Manor, Inc. and Hoardwood, Inc., d/b/a Ora G. Morrow Nursing Home (the Care Facilities), appeal from an order of the circuit court affirming the administrative decision of defendant, Illinois Department of Revenue (Department), which assessed service occupation taxes, regional transportation authority service occupation taxes, municipal service occupation taxes and use taxes on portions of patient care services paid from private funds on behalf of patients at the above-mentioned long-term care facilities. We affirm.

The Care Facilities are skilled nursing facilities licensed by the State of Illinois. The Care Facilities contracted to provide services under Title XIX of the Social Security Act through the Illinois Department of Public Aid. In 1983, a Department agent audited the records of the Care Facilities. The auditor determined that certain patients in the Care Facilities received funding from both the Department of Public Aid and private sources such as social security or pension funds. The auditor further determined that the Care Facilities had not paid taxes on the food and medicine purchased for those patients from private funds. Because goods purchased with private funds are not tax exempt, the auditor calculated the amount of goods and services paid for with private patient funds and issued notices of tax liability, assessing taxes on those purchases under the service occupation taxes and use taxes for prior years.

The Care Facilities challenged the tax assessment and an administrative hearing was conducted. The hearing officer affirmed the Department’s finding and recommended that the notices of tax liability be finalized. The Care Facilities then sought administrative review in the circuit court. The circuit court affirmed the decision of the Department and this appeal followed.

On appeal, the Care Facilities initially argue that the Department improperly assessed retailers’ occupational taxes on the distribution of food to medicaid patients. Because their contention is based on an inaccurate summary of the evidence, we disagree.

The notices of tax liability prepared by the Department and issued to the Care Facilities clearly indicate that the taxes were assessed under the service occupation tax, municipal service occupation tax, regional transportation authority service occupation tax, and use tax. Therefore, the Care Facilities’ contention that they were improperly assessed retailers’ occupational taxes on the distribution of food is unsupported by the record and without merit.

The Care Facilities next argue that the Department improperly assessed service occupation, municipal service occupation, regional transportation authority service occupation, and use taxes on the purchase of food and medicine for medicaid patients. It is the Care Facilities’ contention that because the patients involved receive payments from the Illinois Department of Public Aid as well as private sources, such as social security, they are exempt from payment of taxes on all purchases in the same manner as patients who receive only Public Aid funds. We disagree.

It is undisputed that the assessment of service occupation, municipal service occupation, regional transportation authority, service occupation and use taxes on privately funded purchases of food and medicine made by patients residing in the Care Facilities is statutorily authorized. (Ill. Rev. Stat. 1985, ch. 120, par. 439.103; Ill. Rev. Stat. 1985, ch. 24, par. 8 — 11—5; Ill. Rev. Stat. 1985, ch. 111⅔, par. 704.03(f); Ill. Rev. Stat. 1985, ch. 120, pars. 439.3, 439.32.) It is also agreed that the purchase of food and medicine on behalf of Care Facilities patients made with Illinois Department of Public Aid funds is tax exempt. These transactions are exempt from taxation because they are considered sales or transfers which are incidental to the rendering of service for or by a governmental body. In sum, the State has made a policy decision not to tax disbursements of State funds. (Ill. Rev. Stat. 1985, ch. 120, par. 439.102; Ill. Rev. Stat. 1985, ch. 24, par. 8 — 11—5; Ill. Rev. Stat. 1985, ch. 111⅔, par. 704.03(f); Ill. Rev. Stat. 1985, ch. 120, pars. 439.3, 439.32.) However, the parties disagree on whether or not the Care Facilities’ patients who receive a portion of their income from the Department of Public Aid and a portion from social security or other private sources can be taxed on the portion of services purchased with social security or other private funds.

The Care Facilities incorrectly claim that because patients receive some Public Aid funds, all of their purchases, including those made with private funds, are tax exempt. There is no legal support for this assertion. To the extent that the Care Facilities’ patients are paying for the cost of their care from private funds, that portion of their care cannot be interpreted as a rendering of service for or by a governmental body. Thus, the purchases made by the Care Facilities’ residents with private funds do not fall within the parameters of an allowable tax exemption. The Care Facilities also contend that social security retirement funds like Public Aid funds are government funds and thus are tax exempt. This contention is likewise unsupported. Although social security retirement funds, along with all State, municipal and military pension payments, are funds paid by a governmental agency, they are accumulated as a result of employee/employer contributions. Moreover, the Care Facilities’ contention must fail because there is no demonstrated legislative intent to exempt from taxation every sale of service involving the transfer of personal property to all retired government workers, retired veterans or social security pensioners.

In sum, because one claiming exemption from taxation has the burden of proof and tax exemptions are strictly construed in favor of taxation, we find that the Care Facilities have failed to overcome the presumption against the tax exemption. (United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 455-56, 419 N.E.2d 899, 904.) We therefore conclude that the trial court did not err in affirming the decision of the Department which assessed service occupation, regional transportation authority service occupation, municipal service occupation and use taxes on food and medicine purchased by the Care Facilities’ patients with private funds.

Finally, the Care Facilities argue that the Department improperly computed the formula used to determine the assessed taxes. Specifically, the Care Facilities assert that the Department erred in failing to deduct from patient paid funds the $25 per month which each patient retains for personal use. We disagree.

The Department auditor testified that she computed the tax assessment by using the Care Facilities’ records to determine which portions of the patient’s costs were paid by Public Aid and which were paid from the patient’s own funds. Once she obtained this information, the auditor calculated the percentage of costs paid with private funds. The auditor then subtracted the daily cost of patient food from the total daily costs and applied the percentage to reach the total amount of services on which taxes were assessed.

The Care Facilities argue that because the Department failed to subtract the $25 per month that each patient retained to make miscellaneous personal expenditures, the entire computation is flawed. However, the record in this matter is insufficient to support the Care Facilities’ contention. While the Department auditor testified that patients receiving social security funds each retain $25 per month for personal use, she also testified that the social security funds were mailed to the patients in care of the Care Facilities and issued to the patients before being transferred to the Care Facilities to pay for services. Because there was no evidence that the patients paid over their entire social security or pension check to the Care Facilities and later received a refund of funds not expended, there is no reason to believe that the failure to deduct the $25 personal allowance would in any way affect the formula used by the Department to calculate the tax assessment. Therefore, we find that the trial court did not err in affirming the Department’s computation of the Care Facilities’ tax liability.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

FREEMAN, P.J., and WHITE, J., concur.


author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LEONARD GAINES, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 86—1555
    Opinion filed September 1, 1989.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Thomas V. Gainer, Jr., Kathleen A. Bom, and Diane N. Walsh, Assistant State’s Attorneys, of counsel), for the People.
    Law Offices of Samuel V.P. Banks, of Chicago (Terrence P. LeFevour, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant, Leonard Gaines, was charged by three separate indictments with conspiracy, theft, unlawful possession of a stolen motor vehicle, misrepresentation of the identity of a motor vehicle, and perjury. Defendant moved to dismiss the indictments, contending that prosecution was barred by virtue of a grant of immunity entered in the United States District Court for the Northern District of Illinois, and the trial court sustained defendant’s motion. On appeal, the State contends that the trial court erred in dismissing the indictments against defendant.

The record reveals that the indictments against defendant were returned by a Cook County grand jury on July 18, 1984. While these indictments were pending, defendant was called to testify as a witness in the case of United States of America v. James Basile, et. al., No. 84 — Cr—727, in the United States District Court for the Northern District of Illinois, Eastern Division. Defendant refused to testify, asserting his right to remain silent under the fifth amendment to the United States Constitution. (U.S. Const., amend. V.) On February 20, 1985, the district court judge presiding over the Basile trial granted defendant immunity pursuant to section 6002 of Title 18 of the United States Code (18 U.S.C. §6002 (1970)) and compelled defendant to testify. Much of defendant’s immunized testimony concerned facts and circumstances surrounding the crimes charged in the indictments then pending in the circuit court of Cook County. Defendant denied his guilt of these charges.

On May 9, 1985, defendant filed a motion in the State court to I dismiss the indictments against him, alleging that the subject matter of the case against James Basile in Federal court was relevant to j these indictments and that by that court’s grant of immunity he is immune from further prosecution relating to those charges in the State indictments. The prosecution objected to the dismissal of the indictments, asserting that the Federal court had accorded defendant only use and derivative use immunity rather than transactional immunity as provided by the Illinois immunity provision. (Ill. Rev. Stat. 1985, ch. 38, pars. 106 — 1, 106 — 2.) The prosecutor also indicated that he did not intend to utilize any evidence resulting from defendant’s testimony before the Federal court because the State’s evidence had been developed from sources and leads other than the defendant’s immunized testimony in the Federal court and because defendant had been indicted before he was called as a witness in the case against James Basile.

The trial court found that the language in the Federal court’s order granting immunity was similar to the language employed by the Illinois immunity provision and made a finding of fact that transactional immunity had been granted as opposed to use immunity. The court did not, however, dismiss the indictments at that time, and the case was continued for trial. The prosecution brought a motion to reconsider the court’s finding of transactional immunity, which was denied. The defendant requested that the case be set for trial, and the prosecution sought a ruling on defendant’s original motion to dismiss. The trial court then granted the defendant’s original motion and ordered the indictments against him dismissed. The State has appealed the entry of this order.

The State asserts that the trial court’s dismissal of the indictments against defendant was erroneous because the immunity granted under the Federal court’s order afforded defendant use and derivative use immunity rather than transactional immunity. The Federal witness immunity statute provides in pertinent part:

“[N]o testimony or other information compelled under the [court’s] order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” (18 U.S.C. §6002 (1970).)

This provision has been construed to afford the witness use and derivative use immunity. Kastigar v. United States (1972), 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653.

The statutes authorizing witness immunity in Illinois provide as follows:

“In any investigation before a Grand Jury, or trial in any court, the court on motion of the State may order that any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce.” Ill. Rev. Stat. 1985, ch. 38, par. 106-1.
“Such order of immunity shall forever be a bar to prosecution against the witness for any offense shown in whole or in part by such testimony or other evidence except for perjury committed in the giving of such testimony.” (Ill. Rev. Stat. 1985, ch. 38, par. 106-2.)

These provisions have been held to confer transactional immunity upon a witness compelled to testify in an Illinois court. People ex rel. Cruz v. Fitzgerald (1977), 66 Ill. 2d 546, 363 N.E.2d 835.

The difference between transactional immunity and use and derivative use immunity was discussed in People ex rel. Cruz v. Fitzgerald:

“Under use immunity, a witness’ compelled testimony or leads derived therefrom [derivative use] may not be used in his prosecution. Under transactional immunity, however, the witness is fully immunized from prosecution for any offenses to which his compelled testimony may relate. See Kastigar v. United States (1972), 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653.” (Emphasis added.) People ex rel. Cruz v. Fitzgerald (1977), 66 Ill. 2d 546, 549, 363 N.E.2d 835, 836-37.

A grant of immunity seeks an accommodation between the right of the government to compel testimony and the constitutional privilege against self-incrimination. Use and derivative use immunity leaves the witness and the prosecution in substantially the same position as if the witness had claimed the fifth amendment privilege. Thus, it is coextensive with the scope of the privilege against self-incrimination and is sufficient to compel testimony over a claim of the privilege. The Federal immunity statute and the fifth amendment grant neither pardon nor amnesty. Both the statute and the fifth amendment allow the government to prosecute using evidence from legitimate, independent sources. Kastigar, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653.

Although a grant of immunity must afford protection commensurate with that afforded by the fifth amendment privilege against self-incrimination, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the fifth amendment privilege. Kastigar, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653.

A grant of immunity by. either State or Federal authority shall be recognized by the nonimmunizing sovereign. (Murphy v. Waterfront Comm’n (1964), 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594.) The question posed in the instant case concerns the scope of the immunity that defendant was entitled to claim in the case against him in the circuit court of Cook County. The Federal court granted immunity to the witness from prosecution based on the use of the compelled testimony or evidence derived or developed from the testimony. This differs from transactional immunity, which fully immunizes the witness from prosecution for any offense related to his compelled testimony. (Kastigar, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653.) The State has asserted that defendant was entitled only to use and derivative use immunity because that was the type of immunity granted by the Federal court prior to compelling defendant’s testimony in the prosecution of James Basile.

The defendant contends that the circuit court properly dismissed the indictments against him, affording him transactional immunity as authorized by sections 106 — 1 and 106 — 2 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1985, ch. 38, pars. 106 — 1, 106 — 2.) Relying on People ex rel. Cruz v. Fitzgerald (1977), 66 Ill. 2d 546, 363 N.E.2d 835, and on In re R.L.W. (1979), 78 Ill. App. 3d 521, 397 N.E.2d 530, defendant asserts that the language of these statutes does not provide in any manner for the transmutation of transactional immunity into use immunity. In both of these cases, the witness’ transactional immunity was granted under sections 106 — 1 and 106 — 2 of the State statute, and the courts were required to determine the effect of that immunity upon other State prosecutions. Thus, although these two cases support the defendant’s assertion, they are factually distinguishable from the case at bar and are not controlling.

Defendant contends that the circuit court was required to afford him transactional immunity because the Illinois statute does not provide for a grant of use and derivative use immunity. This argument is without merit. Although the trial judge in the instant case was obligated to honor the Federal court’s grant of immunity, he was not required to again grant defendant immunity under the Illinois statute. The case was before the court on defendant’s motion to dismiss the indictments based solely on the immunity order entered in the Federal prosecution of a different defendant. The motion to dismiss the indictments sought a finding by the trial court that the language of sections 106 — 1 and 106 — 2 must be substituted for the restrictive language of the Federal court’s order and with the effect of expanding the immunity actually granted into the broader language of the State statute. This defendant’s motion sought dismissal of the indictments. It did not request a new grant of immunity under the State statute and, therefore, the court’s reliance on sections 106 — 1 and 106 — 2 was unnecessary and inappropriate.

The facts in the case at bar can be compared to those of In re Bianchi (1st Cir. 1976), 542 F.2d 98. There, the witness invoked his fifth amendment privilege when called to testify in a Federal proceeding and was granted use and derivative use immunity. (18 U.S.C. §§6002, 6003 (1970).) The witness persisted in his refusal to testify and was subsequently found in contempt. On appeal, he asserted, inter alia, that the immunity afforded him was inadequate when compared to the transactional immunity guaranteed by State law. The United States Court of Appeals rejected this argument, finding that the Federal government was not required to grant the same type of immunity that the State would grant if it were seeking the compelled testimony. (Bianchi, 542 F.2d at 101.) Thus, the immunity granted under the Federal provision need not confer transactional immunity merely because a similar State provision would do so. See also United States v. Kuehn (7th Cir. 1977), 562 F.2d 427.

Defendant’s claim must also be rejected because he was indicted in State court prior to being called as a witness and receiving immunity in the Federal proceeding. The State indicated that the evidence to be presented against defendant had been acquired through an investigation prior to defendant’s indictment on July 18, 1984, and was entirely independent of the testimony before the Federal court after the grant of immunity on February 20, 1985. The prosecutor assured the trial court that he did not intend to utilize any evidence resulting from or derived from defendant’s testimony before the Federal court. The Federal grant of immunity served to compel defendant’s testimony without compromising his fifth amendment privilege. Consequently, the defendant was immune from prosecution only insofar as the prosecution was based on evidence elicited after the grant of immunity was ordered and he was compelled to testify. See United States v. Romano (1st Cir. 1978), 583 F.2d 1.

Finally, we note that when defendant testified before the district court in the case against Basile, he denied his guilt of each of the crimes charged in the State indictments. Thus, his fifth amendment privilege would not be compromised if he were afforded only use and derivative use immunity in the State’s case against him.

For the foregoing reasons, the order of the circuit court of Cook County is reversed.

Order reversed.

McNAMARA and QUINLAN, JJ., concur.


author: JUSTICE QUINLAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROOSEVELT CARR, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 87—0417
    Opinion filed September 1, 1989.
    Rehearing denied October 6, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Sari L. Slivnick, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE QUINLAN

delivered the opinion of the court:

The defendant, Roosevelt Carr, was found guilty in a bench trial before the circuit court of Cook County on charges of murder, robbery, and armed violence in connection with the shooting of a Chicago police officer. The trial court sentenced defendant to imprisonment for life. Defendant now appeals his convictions and his sentence.

The following evidence was adduced at defendant’s trial. During the summer of 1985, Chicago police officer Cheriff Morgan and the victim, Detective Wayne King, were partners. Both worked in the Office of Municipal Investigations (OMI), where they investigated allegations of criminal and administrative misconduct against city employees. In July 1985, Officer Morgan and Detective King were involved in an ongoing investigation of the defendant, who was suspected of impersonating a police officer and a city inspector. In connection with their investigation, a warrant for defendant’s arrest had been issued.

On July 12, 1985, Officer Morgan and Detective King were on duty together, dressed in plain clothes. Detective King was carrying a .38 caliber revolver which he had tucked into the waistband of his pants. That afternoon, at about 2 p.m., they met with two other officers, Jackson and Alexander, to formulate a plan to find the defendant.

Later that day, Officer Morgan and Detective King were in their police car when they got a call that the defendant was in a light blue Ford Tempo near the intersection of 45th and State. Officer Morgan and Detective King proceeded to that location, and when they arrived at the intersection of 51st and Michigan, at about 4 p.m., they saw a light blue Ford Tempo. They pulled alongside the Tempo, but they did not see the defendant in the car. The officers began to question the occupants of the Tempo when Detective King saw the defendant walk around the corner. When the defendant looked towards Officer Morgan and Detective King, he turned and ran away from them.

Detective King chased the defendant on foot while Officer Morgan called for assistance on the police radio. While Detective King was still in pursuit of the defendant, Officer Morgan got into their police car to follow. When Officer Morgan drove around the corner onto Michigan Avenue, she saw Detective King, who was facedown on the sidewalk.

Meanwhile, two other police officers, Bone and Ware, were on duty and driving near the intersection of 51st and Michigan. At about 4:10 p.m. they heard two shots and saw people running across Michigan Avenue. They immediately pulled over and got out of their car. They saw one man bent over at the waist, and his chest was covered with blood. He was walking toward them when he fell to his knees and then collapsed down to the ground. They also saw another man, identified as the defendant, running north on Michigan Avenue, about a half a block away. Officer Ware pursued the defendant on foot, while Officer Bone called for assistance. At this point, Officer Morgan drove up to where Officer Bone was stopped. Officer Ware continued to chase the defendant to the intersection of 50th and Michigan, where the defendant turned the corner to head east on 50th.

While Officer Ware "was in pursuit of the defendant, two other officers from the tactical unit, Officers Rider and Stewart, were responding to the calls for assistance. When Officers Rider and Stewart arrived at the location given on the radio, they saw the defendant. Officer Stewart got out of the car with his gun drawn, identified himself as a police officer, and ordered the defendant to stop. Defendant took his hands out of his pocket and placed the gun he had in his pocket on the ground. That gun contained four live rounds and two expended rounds. Officers Rider and Stewart then arrested the defendant.

Other eyewitness testimony was presented at trial. Katherine Holt testified that she was buying gas at a station on the northwest corner of the intersection of 51st and Michigan, when she saw an older man following a younger man, identified as the defendant. Both were heading north on the east side of Michigan Avenue. When the older man reached the defendant, she saw the older man grab defendant’s hand, pull it behind defendant’s back, and push him against the wall. A struggle ensued as the defendant attempted to turn towards the older man. Both men fell to the ground, and the older man was on top of the defendant when she heard a shot. She stated that she saw the two men roll over again, so that the defendant was on top, when she heard a second shot. As the second shot was fired, she saw the defendant jump up and run north on Michigan Avenue. At that time, she said she saw the older man get up on his knees, only to fall face down on the ground.

Three other witnesses, Lessie Simmons, Tawyana Dugger, and Carl Murphy, saw the shooting also. Their testimony was substantially the same as Ms. Holt’s testimony, but they also noticed that when defendant ran away, he had a gun in his hand.

Later that day, at about 10 p.m., Detective John Markham held a lineup at the police station. The defendant was identified in the lineup by Officer Morgan, Katherine Holt, Lessie Simmons, Tawyana Dugger, and Carl Murphy.

In addition to this evidence, the State also introduced the testimony of Richard Fournier, a firearms expert with the Chicago police department. He examined the gun that was in defendant’s possession at the time he was arrested, as well as the bullets that were taken from the victim’s body. Fournier testified that the gun was a .38 caliber revolver and stated that he performed certain tests on the weapon. Fournier stated that, in his opinion, the bullets from the victim’s body were fired from the same weapon he had examined. Concerning the tests he performed on the gun, he stated that for the gun to fire two shots, or for “double action” use, the trigger would have to be completely depressed, released and then completely depressed again. He stated also that he had performed “pull tests” on the gun, and said that for “single action” use, the trigger required three pounds of pressure to fire, and for “double action” use, the trigger required 9x/2 pounds of pull to fire. Fournier testified that these figures were within the factory specifications for this type of weapon.

During Fournier’s testimony at trial, defense counsel objected and moved to strike his testimony concerning all tests on the gun, except the ballistics and bullet comparison tests, on the basis that the State never revealed any of the other test results prior to trial. The State argued that there was only one final report prepared by Fournier, namely the ballistics and bullet comparison report, and that these other test results and findings were merely a result of Fournier’s examination of the weapon in order to perform the ballistics tests. The trial court denied defendant’s motion. Defendant then asked for a continuance in order to have the weapon independently test-firéd, and the State objected, claiming that the defendant had had more than a year prior to trial to do so. The trial court denied the defendant’s request for a continuance, noting as it did so that the matter had been pending for a year, that defendant had been represented by the public defender’s office the entire time, and that when the matter was called for trial, both sides answered that they were ready for trial.

After Richard Fournier testified, the State attempted to call Sergeant John Capesius and Officer Charles Jackson to testify. Before these two witnesses began to testify, however, the defense objected because their names were not on any discovery lists tendered by the State. The State claimed it was unaware of this allegedly inadvertent error and offered the defense the opportunity to interview the witnesses before they testified. Further discussion of this objection revealed that the defendant had subpoenaed the police reports of defendant’s prior arrests and that the names of these officers were listed on these reports. The trial court then overruled the defense objection, allowed the State to amend its list of witnesses, and gave defense counsel the opportunity to interview the witnesses. Defense counsel then made a second objection to Sergeant Capesius’ testimony on the basis that it was immaterial since the State had indicated in discovery that it would not rely on defendant’s prior arrests. The State, however, claimed that this testimony was material because it was necessary to show that defendant knew the victim was a police officer. The court then ruled that it would allow the testimony with the admonition that if the State could not show the materiality of the evidence, it would be stricken. Defense counsel then proceeded to interview Sergeant Capesius.

Thereafter, Sergeant Capesius took the stand and testified that in November 1983, he worked in the OMI. He stated that he and the victim were partners in the OMI at that time. He said that he and the victim had been involved in an investigation of the defendant for impersonating a building inspector and that a warrant had been issued for defendant’s arrest. On November 8, 1983, he and the victim arrested the defendant. Sergeant Capesius said that in connection with that arrest, the victim read the defendant his rights and interviewed the defendant for about 15 minutes and, further, that the victim was the designated court officer in that case.

Chicago police officer Charles Jackson also testified for the State. He stated that he had been the victim’s partner in the OMI on April 5, 1984, and that both he and the victim had received a warrant for defendant’s arrest and, pursuant to that warrant, they arrested the defendant. When they arrested the defendant, Jackson testified that the victim read defendant his rights and they both accompanied the defendant to the police station.

At the end of Officer Jackson’s testimony, defense counsel renewed his objection that this testimony was not properly admitted because the State had violated the discovery rules. The court again overruled defendant’s objection, noting as it did so that even though Jackson was not on the State’s list of witnesses, he was listed on the police reports of defendant’s prior arrests and defendant had access to these reports.

The State also presented the testimony of Dr. Robert Steiner, the chief medical examiner of Cook County, who testified that he performed an autopsy on the victim and found two bullets and two bullet ■ holes in the victim’s chest. After the presentation of this evidence, the State rested.

The defense presented, as its only evidence, a stipulation concerning the testimony of one witness, David Rhines. The stipulation said that, if called to testify, Rhines would state that he was repairing a concrete sidewalk at 205 East 50th Street on July 12, 1985, at about 4 p.m. when a man ran by, through the wet concrete. Rhines yelled at the man, and the man answered “I’m sorry,” and continued running. Rhines then saw a plainclothes police officer run by who told Rhines that the man who had just run by had shot someone. The defense then rested. The trial court found defendant guilty of murder, robbery, and armed violence. On January 12, 1987, the court held a hearing to determine whether the death penalty should be imposed.

Defendant executed a jury waiver for the sentencing phase, and evidence was presented by both sides. The court determined that defendant was eligible for the death penalty based on the State’s unrefuted evidence which showed that the defendant knew that he had killed a police officer. The court then reviewed the evidence in aggravation, and the evidence in mitigation, which included the testimony of defendant’s pastor, his ex-wife, and his daughter. The court then ruled that the death penalty would not be imposed, due to the mitigating factors in the case, and sentenced defendant to natural life imprisonment for murder, seven years for robbery, and 30 years for armed violence, all to run concurrently. As noted above, defendant now appeals his convictions and his sentence.

Defendant raises five issues on appeal: (1) whether the trial court erred when it admitted evidence of defendant’s other crimes; (2) whether the trial court erred when it allowed the testimony of Officers Capesius and Jackson in violation of the discovery rules; (3) whether the trial court erred when it allowed the testimony of Richard Fournier, the State’s ballistics expert, in violation of discovery rules; (4) whether the trial court properly found the defendant guilty beyond a reasonable doubt; and (5) whether the defendant’s sentence of natural life imprisonment was excessive.

The defendant first claims that the trial court erred when it admitted evidence of defendant’s other crimes at trial. He claims that evidence of other crimes is only admissible if it is relevant to motive, intent, knowledge, identity, absence of mistake, or accident, but that here the evidence was not relevant to any of these legitimate purposes. The evidence of other crimes was admitted, he claims, only to show that he allegedly knew that the victim was a police officer when he shot him and, therefore, he contends, was only relevant to the death penalty phase of the trial. Defendant concludes that because the evidence in this case was closely balanced, the admission of this improper evidence was tantamount to reversible error.

The State, on the contrary, claims that admission of this evidence was proper, because it was admitted to show the defendant’s motive to kill the victim. Thus, this evidence went directly to the issue of whether defendant was guilty beyond a reasonable doubt, as well as to whether the defendant, if found guilty, was eligible for the death penalty. It is within the province of the trial judge to weigh the relevance of this type of evidence, and here, the State contends, the trial judge properly determined that this evidence was relevant to defendant’s guilt. In addition, the State maintains that even if this evidence was erroneously admitted, any such error was harmless because the remaining evidence established defendant’s guilt beyond a reasonable doubt.

Evidence of other crimes is generally not admissible to show propensity to commit crime; however, it may be admissible if it is relevant to establish any material question or to show motive or intent. (People v. Stewart (1984), 105 Ill. 2d 22, 56, 61-62, 473 N.E.2d 840, 857-60; see also People v. Richardson (1988), 123 Ill. 2d 322, 339, 528 N.E.2d 612, 617.) As a general rule, admissible evidence must be both relevant and competent. Any evidence which tends to show that the defendant had a motive for killing the deceased is generally relevant, and to be competent, the evidence must, at least to a slight degree, tend to establish the existence of the motive asserted. (Stewart, 105 Ill. 2d at 56, 473 N.E.2d at 857.) However, where such evidence is deemed to have been improperly admitted, a defendant’s conviction will not be reversed if it does not appear that justice has been denied or that a finding of guilt resulted from the error. Richardson, 123 Ill. 2d at 344, 528 N.E.2d at 619.

Here, the evidence of other crimes could easily have been the basis for showing defendant’s motive to shoot the victim. The evidence established that the victim had taken part in defendant’s past arrests and, thus, there was a great likelihood that defendant knew the victim was a police officer. This evidence supported a possible motive for defendant’s shooting of the victim. Even if we were to find, however, that this evidence was improperly admitted and was irrelevant in the guilt phase of the trial, it appears that any error was harmless, because there was, in our opinion, overwhelming evidence of defendant’s guilt in this case.

Defendant next claims that the trial court erred when it allowed Officers Capesius and Jackson to testify, because their names were not included, as required, in the list of witnesses tendered to defendant during the discovery process. (See 107 Ill. 2d R. 412; Ill. Rev. Stat. 1987, ch. 38, par. 114 — 9(a).) When the State called these two witnesses, the defendant argues, he was taken by surprise and did not have adequate time to prepare. He was prejudiced, he claims, because had he known of this testimony, he could have investigated the facts on his own to determine how likely it was that he had seen or that he knew the victim from his prior arrests. The defendant claims that the short recess granted by the trial court was insufficient to alleviate this prejudice. Finally, he contends that he could not have anticipated that these witnesses would be called in the guilt phase of the trial.

The State, however, claims that although Officers Capesius and Jackson were not included in their list of witnesses, this omission does not require a reversal here, because the defendant was not prejudiced by their omission. There was no prejudice, the State contends, because the officers’ names were contained in the police reports of his prior arrests, which defendant had subpoenaed prior to trial. Moreover, the State continues, defense counsel was given time, before the officers’ testimony, to interview the witnesses. Defendant here has not shown how the court abused its discretion, the State concludes, because he has not shown how he was prejudiced or surprised, nor has he shown that the State acted in bad faith.

Supreme Court Rule 412(a)(i) creates an affirmative duty on the State to disclose intended witnesses to the accused. (107 Ill. 2d R. 412; People v. Curtis (1986), 141 Ill. App. 3d 827, 832, 491 N.E.2d 134, 137-38.) If the defendant can show that the State violated a discovery rule, the next line of inquiry then becomes whether the defendant was surprised or prejudiced by the violation, and the burden is on the defendant to show how he was prejudiced. (Curtis, 141 Ill. App. 3d at 832, 491 N.E.2d at 138.) If the defendant cannot show how he was prejudiced, the resulting error will generally be harmless. (People v. Padilla (1988), 173 Ill. App. 3d 357, 360, 527 N.E.2d 700, 703.) When a trial court is confronted with a discovery violation by a party, it is within the court’s discretion to order a continuance, mandate a disclosure, or permit use of the evidence at trial. People v. Taylor (1982), 107 Ill. App. 3d 1019, 1022, 438 N.E.2d 565, 567.

Here, there is no doubt that there was a discovery violation by the State because Officers Capesius and Jackson were not on the State’s list of witnesses tendered to the defendant. Although there was a violation, the resulting prejudice to the defendant when the court ultimately allowed these witnesses to testify, after defense counsel had the opportunity to interview them, is unclear. Moreover, it is not clear how the defendant was surprised by the officers’ testimony, since he had the prior arrest reports listing these officers and the victim. He knew that this was a potential death penalty case, and that the State would therefore present evidence to show he knew the victim was a police officer pursuant to the death penalty issue. Finally, we note that any investigation by the defense concerning the level of the victim’s involvement in the defendant’s prior arrests would have begun with information the defendant himself could have provided. Thus, we find no abuse of discretion here by the trial court, and further find that any error as a result of the discovery violation was harmless.

Defendant claims, as his third issue on appeal, that the trial court erred when it failed to strike the testimony of Richard Fournier, the firearms expert, concerning the “pull tests” he performed. Defendant claims that this testimony violated the discovery rules because the State never tendered any documentation to him regarding this type of test. The testimony surprised and prejudiced him, he asserts, because it was crucial to his defense to establish that the victim was shot accidentally. To refute Fournier’s testimony and show that the gun had a “hair trigger,” or that the gun was not within the factory safety specifications, he would have had to do his own independent testing on the gun, and the court should have given him a continuance to do such testing.

The State, however, claims that the testimony did not violate the discovery rules inasmuch as it had tendered Fournier’s only written report to the defense, as required by Rule 412. (107 Ill. 2d R. 412.) Moreover, the State argues, even if this was determined to be a violation of the discovery rules, reversal would not be warranted unless the defendant could show that he was surprised or prejudiced, and the defendant has made no such showing here. Furthermore, the State notes, during the trial, defense counsel actually stated that this evidence was not damaging to their case.

Supreme Court Rule 412(a)(iv) requires that the State disclose any reports or statements of experts made in connection with the particular case, including results of scientific tests, experiments or comparisons. Again, a violation of a discovery rule does not mandate a reversal unless the defendant can show surprise or prejudice. (107 Ill. 2d R. 412; People v. Jackson (1985), 131 Ill. App. 3d 128, 137, 474 N.E.2d 466, 473.) A similar situation to that presented here arose in People v. Taylor (1982), 107 Ill. App. 3d 1019, 438 N.E.2d 565. There, the defendant claimed he was prejudiced by the State’s failure to disclose the existence of a ballistics test and the report made by a firearms expert prior to trial. Before the expert testified, defense counsel was given a copy of the report, and was allowed to interview the expert in chambers. (Taylor, 107 Ill. App. 3d at 1022, 438 N.E.2d at 568.) The report was not admitted at trial, but the firearms expert in Taylor testified to the matters in the report. The Taylor court noted that the report was neutral or noncommittal and, thus, could not have affected the verdict. The court then concluded that under the circumstances there, the defendant was not surprised or prejudiced by the State’s discovery violation. Taylor, 107 Ill. App. 3d at 1022-23, 438 N.E.2d at 568.

In the case at bar, it is unclear whether there was any discovery violation by the State at all. Although Fournier testified at trial and stated that his report did not specifically indicate that he had performed any “pull tests,” an examination of his report clearly shows that the results of such tests were set forth in the report, which was only one page in length. In Fournier’s report, under the heading “Single Action,” Fournier listed “Z^lz-Z,” and under the heading “Double Action,” Fournier listed “Z-Z^tz." This data is consistent with Fournier’s testimony at trial, in which he explained that the trigger held at two and one-half pounds, and released at three pounds, for “single action,” and that the trigger held at nine pounds and released at nine and one-half pounds for “double action.” Fournier also testified that the minimum factory requirements for this type of gun were, for “single action,” two and one-half pounds and for “double action,” nine pounds. Based on this information, we do not believe that there was any discovery violation by the State. Fournier prepared a one-page report, the report was tendered to the defense, and Fournier testified concerning the data on the report.

Even if we did find that there had been a discovery violation here, again, we do not see how defendant was surprised or prejudiced by the admission of Fournier’s testimony. As the trial court noted, the defendant had access to the gun for the entire year the case was pending. Further, when the court inquired how long it would take defense counsel to test the gun, defense counsel had no idea. Moreover, if the defendant had wanted to pursue an affirmative defense that the gun had a “hair trigger,” he should have sought to have the gun examined before the trial. In any event, Fournier’s findings only showed that the gun was within the normal factory specifications and, thus, the report itself would seem to be relatively neutral in nature. Furthermore, defense counsel, at trial, stated, “I’m not arguing that [Fournier’s] testimony was that damaging, however, the State felt it was relevant enough to put it in, but my [problem] is that there are rules to be followed ***.” We find that there was no abuse of discretion here when the trial court allowed the evidence.

Defendant claims next that he was not proven guilty beyond a reasonable doubt. He argues that it was reasonable to assume that the victim pulled the gun on him while in the process of arresting him, and that the gun, which had, he asserts, almost a “hair trigger,” went off accidentally.

The State, however, contends that the evidence showed the defendant’s guilt beyond a reasonable doubt. There were four eyewitnesses who saw the attempted arrest, and the ensuing struggle, heard the shots, and then saw defendant immediately jump up and run away with a gun in his hand. The eyewitness testimony was, in addition, corroborated by the testimony of the police officers, and the firearms expert, Richard Fournier. Fournier’s testimony, in particular, established that it would have been unlikely that the trigger could have been accidentally compressed, released, and then accidentally compressed again.

It is the function of the trier of fact to assess the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from all of the evidence. (People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 461, 473.) It is also within the province of the trier of fact to resolve any conflicts in the evidence. (Young, 128 Ill. 2d at 51, 538 N.E.2d at 474.) Because of these basic principles, a reviewing court will not substitute its judgment for that of the jury on questions involving the weight of the evidence or the credibility of the witnesses, and will not reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. Young, 128 Ill. 2d at 51, 538 N.E.2d at 474.

There is no question here that the evidence proved defendant guilty beyond a reasonable doubt. There were four eyewitnesses to the actual shooting, and their stories were entirely consistent. The witnesses all agreed that the defendant and the victim struggled while the victim was attempting to arrest defendant, and they both fell to the ground fighting. A first shot went off, and, within seconds, they said a second shot went off. The defendant immediately jumped up and ran away, carrying a gun in his hand. Moreover, additional evidence was presented to infer that the defendant knew the victim was a police officer when he shot him since the victim had arrested the defendant twice before. Thus, the evidence against the defendant overwhelmingly established his guilt.

Finally, defendant claims that his natural life sentence was excessive because the mitigating factors such as his age, which was 38, the lack of violence in his criminal record, and his good family relations all showed his potential for rehabilitation. Any sentence above the minimum, defendant contends, would be excessive.

The State argues that defendant’s sentence was not excessive because the evidence of guilt was overwhelming, and, moreover, there was a strong aggravating factor here in that defendant shot a police officer, and knew that he shot a police officer. Thus, the State contends that the trial judge properly considered and weighed all factors in aggravation and mitigation and sentenced defendant to natural life imprisonment.

The standard of review to be applied in sentencing issues was discussed by our supreme court in People v. Ward:

“ ‘We have frequently stated that the trial judge is normally in a better position to determine the punishment to be imposed than the courts of review. [Citations.] A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case. [Citation.] Such a judgment depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. [Citation.] *** [T]he trial judge’s decisions in regard to sentencing are entitled to great deference and weight. We therefore reaffirm our long-standing rule that absent an abuse of discretion by the trial court a sentence may not be altered upon review.’ ” People v. Ward (1986), 113 Ill. 2d 516, 525-26, 499 N.E.2d 422, 425, quoting People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.

See also People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348-49.

Here, in the sentencing hearing, the trial judge heard all of the evidence, including all of the factors in aggravation and mitigation. He then concluded that the defendant was eligible for the death penalty because he found that defendant knew at the time of the shooting that he had killed a police officer. The court then, however, decided that because of the mitigating factors here, the death penalty would not be imposed, but instead determined that the imposition of a natural life sentence was proper. We find that the court acted properly and did not abuse its discretion in this determination.

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

Judgment affirmed.

EGAN, P.J., and McNAMARA, J., concur.