author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Wright, Defendant-Appellant.
    (No. 73-296;
    Third District
    December 4, 1974.

      James Geis and Stephen Hurley, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Martin Rudman, State’s Attorney, of Joliet (Patrick McNamara, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, Joseph Wright, was convicted of murder and was sentenced by the Circuit Court of Will County to a term of 14 to 20 years in the penitentiary. He appeals contending that certain instructions were erroneous.

Shortly before the occurrence, Felipe Gutierrez was driving north on Chicago Avenue in Joliet. As he approached the intersection of Chicago and Osgood Avenues, he began to make a right turn onto Osgood. He was unable to complete the turn, however, because another car had stopped on Osgood near the intersection and was blocking the street in front of him. Inside of his vehicle were his mother, wife, sister and three small daughters. He was taking his mother and sister home and was then going to a show with the rest of the family.

Joseph Wright was standing outside the passenger side of the stopped automobile by the curb, apparently talking to the driver. Mr. Gutierrez honked his horn a number of times and, shortly thereafter, the vehicle ahead of him began to move. As it pulled away, he too began to move forward, while Joseph Wright, who had been at the curb, began to walk across the. street between the two vehicles.

The testimony of the witnesses, with regard to what occurred next, differed from one another.

Mrs. Jonnie Cuffie was driving a car which was parallel to that of Gutierrez, but facing in the opposite direction. She said that Gutierrez put on the brakes to keep from hitting Wright and that after he did so the defendant put his hand on the hood of the car, walked around to the driver’s side and kicked the car door with his left foot. At that, she stated, Gutierrez jumped out of his car and, while gesturing with his hands, said, “Man you can’t block these streets people have to drive through here.” Next, she said the defendant pulled a gun and stepped closer to Gutierrez while muttering a few obscenities. Gutierrez then picked up his left leg and right hand to hit the gun. Wright took two steps backward and Gutierrez took two steps toward him and with the gun pointed toward Gutierrez, Wright shot. She said she heard three or four shots but only saw two fired — the second bullet going through the window of her car. Mrs. Cuffie saw no physical contact between Gutierrez and Wright and did not see Gutierrez spit at the defendant. When the gun was fired the first time by defendant it was pointed at Gutierrez’s chest and Gutierrez’s hands were both at shoulder height with nothing in them and he was not attempting to hit Wright. Further, that he did not reach toward his pocket.

Otis Common, Mrs. Cuffie’s 15-year-old son, was sitting in the back seat of Mrs. Cuffie’s car. He stated that after Gutierrez braked to avoid hitting Joseph Wright, Wright looked in the windshield said something, walked to the driver’s side, and kicked the door making a dent which popped out as Gutierrez got out of the car. The defendant backed up as Gutierrez, raising his hands, hollered at him. The witness said Wright took two steps back, pulled out a gun and shot Gutierrez in the chest. He stated that Mr. Gutierrez neither put his hands near his pocket, nor spit at, nor punched or kicked the defendant. There was nothing in his hands. The barrel of the gun was never pointed up in the air.

Artena Hernandez, also a passenger in the Cuffie car, said that she did not see the defendant touch or kick the Gutierrez vehicle. Rather, she said, Gutierrez slammed the door to his car and advanced rapidly toward the defendant. She was unsure as to whether the defendant took out the gun as Gutierrez was getting out of the car or as Gutierrez was advancing toward him. She said that she did not see the deceased spit at the defendant nor strike any blow at defendant.

Paul Van Duyne, a lathe operator at Caterpillar, was.headed south. on Chicago and was stopped at the comer of Chicago and Osgood when the occurrence took place. He said his view was unimpaired and that he watched Gutierrez jump out of his car and walk to the rear of it, going after the defendant. Gutierrez, he testified, swung and kicked at the defendant, but failed to make contact. The defendant had his hands up in front of his chest to defend himself, and then reached into his coat and took out a gun. He fired two rapid shots while the gun was pointed at Gutierrez.

Fred Padovich, a steelworker, was a passenger in the Van Duyne car. He wore glasses but did not have them on at the time. He said that he watched Gutierrez get out of the car and move to the rear of it where the defendant was. They appeared to be talking or arguing and it looked as though Gutierrez was going to punch or kick Wright, but he never saw him throw the punch. He said that the defendant then stepped back, took out a gun and shot twice. He did not see the deceased spit at the defendant.

Ampal and Carolyn Gutierrez, the deceased’s sister and wife, respectively, testified that the defendant, after walking in front of the car, walked around to the driver’s side and kicked it. The deceased, who weighed 120 pounds and was 5 feet 8 inches tall, got out of the car and his sister heard him ask the defendant why he was blocking the road and kicking the car. Both men walked to the rear of the car whereupon, the women said, the defendant pulled a gun and shot him. Ampal Gutierrez heard three or four shots whereas Carolyn heard two. Neither saw blows exchanged nor saw the deceased spit or reach for his pockets.

Joseph Wright testified that after the driver to whom he had been talking pulled away he began to walk across the street toward his car. He heard a loud noise, the Gutierrez car engine, and, being startled, he jumped and threw up his hands. He said that as he continued across the street he heard Mr. Gutierrez say something. Gutierrez then jumped out of his car and asked the defendant what he had said. The defendant responded, “Oh man hold your breath.” Gutierrez then stepped toward him and pushed him. Mr. Wright said, “What is this,” and Gutierrez again asked what Wright had said. The defendant replied “I said say man hold your breath.”

Next, he said, Mr. Gutierrez spit on his coat and he, in response, called him a name. Gutierrez then tried to kick him, but was pushed by the defendant as he did so, and therefore only touched the defendant’s groin with his foot. That done, Mr. Wright said, Gutierrez began to fumble at his right coat pocket. Thinking he might, be reaching for a gun, the defendant said he pulled out his own gun. He asked Gutierrez if he was going to leave him alone, but Gutierrez went to push him, so the defendant raised his gun upwards and fired. He said that he was not aiming it at Gutierrez. After the shot, Gutierrez backed off and then came back swinging wildly. The defendant stated that he tried to block him and then fired again, though he did not intend to shoot him.

Danny Knight was the driver of the vehicle which had been blocking the street. He pulled his car over to the side of the road and observed Joe Wright walk around the Gutierrez vehicle. He said that Wright was headed north when Gutierrez got out of the car and started chasing him, trying to hit him and kick at him. He said that Wright kept telling Gutierrez to back off and that Gutierrez reached into his pocket at which time he heard a gun go off twice. It was Joe Wright who had the gun.

All witnesses agree that after the shooting Gutierrez walked back to his car and began to drive, off. A moment later, though, he slumped over and the automobile ran up onto the curb. Joseph Wright began to walk away from the area but then broke into a run.

Scientific examinations were made of the defendant’s coat and shoes. Saliva was found on the front of the Joseph Wright coat, though the saliva could not be positively linked to Gutierrez because of the effect which chemicals in the clothing fibers had had on it. The defendant’s shoes and pants were tested and compared against a soil and paint standard taken from the deceased’s vehicle. No comparable soil or paint was detected on Mr. Wright’s shoes and pants.

Medical testimony established that Gutierrez died as a result of a bullet wound. The path of the bullet was from front to back, slightly to the right and slightly downwards.

Also introduced into evidence were two tape-recorded statements made by the defendant after his arrest. In the first statement, the defendant denied any knowledge of the occurrence. In the second statement, however, he related his involvement in the shooting, describing the events in much the same manner that he did in his testimony.

Defendant on appeal complains of certain instructions that were given without objection in the trial court. Defects in instructions are waived unless objection is made in the trial (People v. Kelley, 105 Ill.App.2d 481, 485). However, Supreme Court Rule 451(c) provides that in criminal cases substantial defects in instructions are not waived by failure to make timely objections thereof if the interests of justice require it. (Í4A I.L.P. Criminal Law § 652 (1968).) One who seeks to avoid waiver of defects in instructions for failure to make specific objection has burden of establishing (a) that the defects in the instruction are substantial, and (b) that the giving of the instruction resulted in denying to the defendant a fair trial and justice. People v. Price, 96 Ill.App.2d 86, 95.

At the conference on instructions it was agreed that the evidence was such as to warrant an instruction on self-defense; on murder; and on voluntary manslaughter.

When the issue involved in self-defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all other elements of the offense. Ill. Rev. Stat. 1971, ch. 38, par. 3 — 2; People v. Adams, 113 Ill.App.2d 205.

In the instant case the jury was instructed that the State must prove beyond a reasonable doubt that the defendant was not justified in using the force which he used. IPI — Criminal, No. 25.05 (issues in defense of justifiable use of force) was given without objection. But they were also instructed in a separate instruction, IPI — Criminal No. 7.02 (issues in murder) that they could find the defendant guilty of murder with no requirement that the State prove beyond a reasonable doubt that the defendant was not justified in using the force which he used.

The elements or issues of the defense of self-defense should be treated in two ways: first, by definition following the definition of the crime with which defendant is charged (this was done in the instant case) and second, in the same instruction with the issues or elements of the crime and the State’s burden of proof. The jury should receive a single instruction covering all of the issues. (IPI — Criminal, at 436; IPI— No. 25.05.) An example is given at IPI — Criminal, at 460. Also see People v. Joyner, 50 Ill.2d 302, 307.

When the language of an instruction is inaccurate, and, standing alone, might have misled the jury, others in the series may explain it, remove the error or render it harmless. But that can never be so when instructions are in direct conflict with each other, one stating the law correctly and the other incorrectly. (People v. Miller, 403 Ill. 561, 565.) IPI — Criminal No. 7.02 should not have been given. Under the circumstances of this case we believe the defendant’s failure to object to IPI— Criminal No. 7.02 was not as important with reference to the fundamental fairness of the trial as the requirement that the jury be properly instructed.

Defendant also contends that the jury was given a manslaughter instruction which described the wrong theory and which was inapplicable to the facts of the case and that the one given on the issues did not make sense. He is asserting that when murder is the charge and self-defense is claimed that IPI — Criminal No. 7.05 must be given.

Section 9 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 2) defines two different types of voluntary manslaughter. The first type, described in subsection (a) occurs when at the time of the killing the accused was acting under a sudden and intense passion. Instructions 7.03 and 7.04 of IPI correspond to this theory of voluntary manslaughter.

The second type is described in subsection (b) of section 9 — 2 thusly:

“(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.”

IPI — Criminal No. 7.05 (intentional-belief of justification) and 7.06 (issues) correspond to this theory. The difference between a justified killing under self-defense and one not justified, amounting to voluntary manslaughter, is that in the former instance the belief that the use of force is necessary is reasonable under the circumstances, and in the latter, the belief is unreasonable. People v. Joyner, 50 Ill.2d 302, 307.

In giving the instruction on justifiable use of force the trial court here determined, as a matter of law, that there was sufficient evidence on that issue for the consideration of the jury. When the trial court determined that the facts in evidence justify or require the giving of an instruction on the justifiable use of force, there are, in fact, three alternatives for the consideration of the jury, i.e., (1) murder, (2) that the use of force was justified and self-defense was demonstrated, or (3) that while the defendant might have believed that the use of force was necessary under the evidence, such belief was unreasonable. (People v. Johnson, 1 Ill.App.3d 433, 435; People v. Zertuche, 5 Ill.App.3d 303; People v. Dortch, 20 Ill.App.3d 911, 314 N.E.2d 324. But, also see People o. Humble, 18 Ill.App.3d 446.) In the instant case the jury was never given the opportunity to consider the statutory offense which results when force is used unreasonably as defined in section 9 — 2(b) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 2(b)).

The instruction given in the instant case was a modification of IPI— Criminal No. 7.04, the pertinent part of which, as modified, read as follows:

“That where the defendant did so he acted under a sudden and intense passion resulting from serious provocation by Felipe Gutierrez, whom he endeavored to kill, but he negligently or accidentally killed Felipe Gutierrez.”

It is unlikely that one could endeavor to kill A and at the same time negligently or accidentally kill A. The committee note to No. 7.04 suggests that “[bjlanks should be filled in with names of decedent and third person as applicable.” It is a type of situation when a defendant, acting under a sudden and intense passion resulting from serious provocation by A, whom he endeavors to kill, but negligently or accidentally kills B, that this section of the instruction is applicable.

We believe that under the circumstances of this case the defendant’s failure to either object or to tender appropriate instructions was not as important to the fundamental fairness of his trial as the requirement that the jury be fully and properly instructed.

For reasons stated the judgment of conviction is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ALLOY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CRAVEN

license: Public Domain

text:
      In re Adoption of Nicole Leigh Hoffman, a Minor.—(Rose Allen Hoffman et al., Petitioners-Appellees, v. Bernard Allen Hoffman et al., Defendants-Petitioners-Appellants.)
    (No. 12490;
    Fourth District
    December 17, 1974.

      Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (William O. Martin, of counsel), for appellants.
    Thomson, Thomson, Zanoni & Flynn, of Bloomington (Chester Thomson and Mike McElvain, of counsel), for appellees.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Bernard and Susan Hoffman, petitioners (herein parents), filed a motion under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) to vacate the decree of adoption of the circuit court of De Witt County. The decree of adoption in question had been entered in favor of Robert and Rose Hoffman, respondents, the adopted child’s paternal grandparents (herein grandparents). The circuit court denied the motion. The only stated basis for the court’s ruling was that “[p]etitioners have failed to sustain their burden of proof.” This appeal is from the judgment entered. The single issue here is whether the trial court’s ruling was against the manifest weight of the evidence. We find that it was.

The facts giving rise to this appeal are as follows: The parents were married on December 5, 1969. At that time, Bernard was 19 and serving in the United States Navy; Susan was 16 and attending high school. Susan resided with her parents until approximately June 13, 1970, the date their daughter, Nicole Leigh, was born. Thereafter, Susan moved in with her in-laws. Bernard joined Susan and the infant in September of 1970, after he was honorably discharged from the United States Navy.

This period in the lives of Bernard and Susan was one of adjustment and stress. They experienced a great deal of marital discord, and at one time Bernard contemplated a divorce from Susan. Then, sometime in May or June of 1971, the question of adopting Nicole was raised. According to the parents, the question" of adoption was raised by the grandparents, an assertion contested by the latter. In any case, the record reflects that the matter was raised because parents or grandparents felt that some arrangements should be made in order to provide for Nicole in the evént Bernard and Susan should die in a common disaster. Later on, when Bernard contemplated a divorce, Bernard’s mother allegedly suggested that Bernard and Susan execute a consent to adoption in order to assure that if Bernard, and Susan did become divorced, Nicole would remain on the Holfman side of the family. This plan was rejected. However, the grandparents persisted by arguing that such a provision would be in the best interest of Nicole. The parents inquired of grandparents if adoption was the only method by which a guardianship for Nicole could be effected, and the grandparents allegedly stated that it was. The grandparents denied that any such representation was made.

Grandparents retained counsel to accomplish the adoption of their granddaughter. On July 1, 1971, the parents met with the grandparents’ attorney. He discussed the matter with them. Thereafter, they and the attorney went to tire chambers of Judge William C. Calvin. Judge Calvin also briefly discussed the matter with the parents. The judge admonished them of the finality of their consent to adoption; thereafter, they executed the consent to adoption. On July 30, 1971, the adoption decree was entered. The parents continued to reside with grandparents and Nicole as if nothing had occurred that would have affected their parental relationship with their daughter. In late September of 1972, the parents were to move into a trailer they had purchased. When they attempted to take Nicole with them, grandparents refused to permit her to be taken from the residence.

On July 23, 1973, the parents filed a petition, supported by affidavits, requesting that the decree of adoption be set aside. The petition alleged that representations made by respondent, Rose Hoffman, as to why the parents should execute a consent to the adoption of their daughter, Nicole, were false, and that these representations were relied upon by the parents. The petition further contended that the consent to adoption was obtaind in violation of section 11 of the Adoption Act (Ill. Rev. Stat. 1971, ch. 4, par. 9.1 — 11).

On October 2, 1973, a hearing was held on the petition to vacate before Judge Joseph C. Munch. At the hearing, nine witnesses testified. The parents and grandparents testified on their own behalf and under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 60.) The testimony was acrimonious and contradictory.

The parents contended that they sincerely loved their daughter; that they were responsible and dutiful parents; and that they had eagerly accepted the burdens of parenthood. They contended that their love for their daughter and a deep desire to see that she was taken care of in the event of their untimely demise prompted them to give their consent to adoption. They related that they had, in good faith, trusted and relied upon the grandparents for guidance and counseling in this matter. Bernard admitted in his testimony that Judge Calvin had admonished him of the consequences of the consent to adoption. He stated he was aware that the consent was irrevocable. He explained that at the time of the adoption he was confident that his parents would never deprive him and Susan of the care and custody of their daughter. Bernard stated that he felt he could trust his parents that they would never turn on him.

Susan testified that it was Mrs. Hoffman who initially raised the question of adoption, and in so doing stressed that if Bernard and Susan should be killed in an automobile accident, Nicole would be without a guardian, and that the proper way to see that Nicole was provided for was through adoption processes.

Both Susan and Bernard stated that Mrs. Robert Hoffman made arrangements for the adoption with her attorney, Thomas Lamkin, and that they met with Lamkin on one occasion, prior to the execution of their consent to adoption. Bernard and Susan stated that they had not consulted an attorney concerning the adoption, nor were they ever advised that they had a right to counsel relative to the matter.

Mrs. Robert Hoffman stated that the parents took very little interest in the child and that she was required to look after and care for Nicole most of the time. She stated that her son failed as a father, in that he performed no fatherly functions and was gone almost every evening. Mrs. Hoffman stated that on many occasions Susan went with Bernard, thus leaving the infant in grandparents’ home. Furthermore, both grandparents contended that the parents contributed very little for the support of Nicole, and that Bernard was not steadily employed when he resided with them. The grandparents urged that it was parents who initiated all conversations concerning the adoption, and that the parents were informed that if an adoption was effected, it would be final and that Nicole would not be traded back and forth between the families.

Jesse Hammer, a friend of Bernard Hoffman, was called to testify by the parents. His testimony dealt with a conversation between Bernard Hoffman and Rose Hoffman that he had overheard one evening while in the grandparents’ residence. Hammer said that Rose Hoffman told Bernard that he could have Nicole back when he settled down.

Mrs. Nicholas Hoffman, Bernard’s paternal grandmother, testified on behalf of the parents. She related that she had a conversation with Rose Hoffman concerning the latter’s attachment to Nicole. In tire course of the conversation, Rose Hoffman allegedly stated that the parents would never get Nicole from her. On cross-examination, counsel for the grandparents attempted to discredit her testimony by establishing that she disliked her daughter-in-law, Rose Hoffman.

The parents then called Alice Wiekle, the sister of Robert Hoffman, to testify. She related in her testimony that she had observed Susan and Rose Hoffman with Nicole on four or five occasions during a 2-year period, and that on each occasion Mrs. Rose Hoffman clearly dominated when it came to the care and maintenance of Nicole. She stated that Susan was never given an opportunity to care for Nicole because of Mrs. Hoffmans domination.

The grandparents called attorney Thomas Lamkin to testify. He stated that he hád admonished the parents concerning the finality of the adoption proceedings in question. Moreover, he related the sequence of events that occurred in Judge Calvin’s office the day that the parents executed the consent for adoption.

After arguments of counsel for the parents and grandparents and the guardian ad litem, the court took the matter under advisement. On October 11, 1973, the court denied the motion to vacate the decree of adoption in a one-sentence order, and the parents appealed.

Under section 11 of the Adoption Act (Ill. Rev. Stat. 1971, ch. 4, par. 9.1 — 11), a properly executed and acknowledged consent to adoption is irrevocable unless procured by fraud or duress. The petition in question sought to have the consent to adoption executed by the parents set aside on the grounds it had been induced by fraud. Fraud generally includes anything calculated to deceive and is accompanied by a wrongful intent. (Exline v. Weldon, 57 Ill.2d 105, 311 N.E.2d 102.) The burden is on the party asserting the existence of fraud under a section 72 petition. (Lagen v. Lagen, 14 Ill.App.3d 74, 302 N.E.2d 201.) However, the purpose of a section 72 proceeding is to bring before the court facts not appearing of record which, if known by the court at the time the final judgment was entered, would have prevented its rendition. Akers v. Christen, 11 Ill.App.3d 369, 296 N.E.2d 774.

The main thrust of the parents’ argument is that because of the parental relationship that existed between themselves and the grandparents, the circumstances surrounding their marriage, and their relatively young ages, they were dependent upon them for guidance and advice. In short, the grandparents owed the parents a fiduciary duty which precluded them from taking advantage of their vulnerable situation. We accept the parents’ theory and find that such a fiduciary relationship did in fact exist. Also, the existence of this fiduciary relationship was underscored by the scope of the parents’ dependency upon the grandparents, as illustrated by this record. As noted in Curtis v. Fisher, 406 Ill. 102, 113, 92 N.E.2d 327, “The fiduciary relation is considered to exist and relief is granted where influence has been acquired and abused, and in those cases in which confidence has been reposed and betrayed.” (Emphasis added.)

It is apparent from the record that this duty was breached by the grandparents in their efforts to secure custody of their grandchild through adoption channels. The record reveals a biarre set of circumstances that was spawned by the interplay of the personalities and relationships. All parties concerned contributed to the confusion and instability of the situation. However, the course of events was interfaced with the grandparents’ unwillingness to exercise their own fiduciary obligations owed to the parents and their granddaughter. Grandparents compromised their responsibilities and chose to gain custody of their granddaughter through less than candid methods. Even if the grandparents sincerely believed the infant was neglected and the parents were unfit, their method of securing custody was inexcusable and unorthodox. If the grandparents were concerned with the best interest of their granddaughter, they could have resorted to the Juvenile Court Act (Ill. Rev. Stát. 1971, ch. 37, par. 701 — 1 et seq.) and obtained custody via the proceeding therein.

It is apparent from the record that originally the best interest of the infant was a secondary factor, and that all parties involved were more concerned with their own best interest. For example, the testimony of parents and their corroborating witnesses establishes that Mrs. Hoffman became inordinately attached to Nicole and functioned as a surrogate mother in all respects. The record also establishes that the parents were immature and neglected their parental duties. Their immaturity was manifested in their instability and inability to adjust to their new mode of life. Moreover, their lack of insight and experience was apparent from their testimony regarding the fact that they felt the adoption was only a legal formality and that respondents would never turn on them. The grandparents, in violation of their fiduciary responsibility, exploited the parents’ ignorance and used this ignorance to sever Nicole from them. The cumulative effect of the entire course of events and the manner that the grandparents capitalized thereupon amounted to fraud which was perpetrated upon the parents and the infant. The fact that the grandparents might not have initiated the talk concerning adoption, or that they may not have suggested adoption as a means of providing a guardian for Nicole in the event of parents’ untimely demise, is of no consequence.

In so holding, we are mindful of the rationale underlying the public policy found in the Adoption Act which makes a consent to an adoption irrevocable. (See People ex rel. Orway v. Catholic Home Bureau, 34 Ill.2d 84, 213 N.E.2d 507.) Our opinion in no' way undermines that policy, since the element of fraud was present in this case, and the existence of fraud vitiates the voluntariness of the natural parents’ consent to adoption. Moreover, the unique nature of the family relationship that existed between the natural parents, adoptive parents and the adopted child destroyed the elements of confidentiality that the declared public policy sought to preserve. Nicole would eventually be privy to the identity of her natural parents and all the facts involved in this litigation.

The trial court’s judgment which denied the petition to vacate the adoption decree was against the manifest weight of the evidence. Such judgment is reversed, and this cause is remanded with directions to grant the petition to vacate the decree.

Reversed and remanded with directions.

TRAPP, P. J., and SMITH, J., concur.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The Shell Oil Company, Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 74-49;
    Fifth District
    November 26, 1974.

      Schlafly, Godfrey & Fitzgerald, of Alton, and W. D. Maer, of Houston, Texas, for petitioner.
    William J. Scott, Attorney General, of Springfield (Larry R. Eaton, Assistant Attorney General, of counsel), for respondents.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Shell Oil Company petitions for review of an order of the Illinois Pollution Control Board denying petitioner’s motion for reconsideration of an order denying petitioner’s petition for variance.

The issues presented by the petition are (1) whether the opinion and order of the Illinois Pollution Control Board denying petitioner’s motion for reconsideration and the opinion and order of the Board denying the petition for variance are against the manifest weight of the evidence, and (2) whether the Illinois Pollution Control Board denied petitioner due process of law and equal protection of the law.

On March 19, 1973, Shell Oil Company, hereinafter referred to as “Shell,” filed a petition for variance with the Illinois Pollution Control Board, hereinafter referred to as the “Board.” The Illinois Environmental Protection Agency recommended that the variance be granted upon performance of certain conditions not in issue on appeal. On June 29, 1973, a hearing was held, and on October 5, 1973, the Board entered an opinion and order denying Shell’s petition for variance, without prejudice. (Shell Oil Co. v. Environmental Protection Agency, PCB 73-116.) Petitioner filed a motion for reconsideration which was subsequently amended and augmented by an affidavit in support of the amended motion. The motion and affidavit were filed on November 27, 1973. Once again, the Illinois Environmental Protection Agency recommended approval, but the Board in its opinion and order of January 10, 1974, denied the motion for reconsideration. (Shell Oil Co. v. Environmental Protection Agency, PCB 73-116.) We affirm.

Shell operates an oil refinery in Wood River, Illinois. The refinery has a peak crude-oil capacity of 284,000 barrels per day. Waste water from the refinery is treated and discharged into the Mississippi River. Among the constituents of this discharge is cyanide. Rule 408(a), Part IV, Illinois Pollution Control Board Water Quality Regulation requires that effective December 31, 1973, waste-water discharge discharged from a facility such as petitioner’s refinery must not contain more than 0.025 milligrams per liter (mg/1) of cyanide. Although the amount of cyanide in the refinery’s effluent was quite small, it consistently exceeded the limit set by Rule 408(a). At the hearing, the sole witness, an employee of Shell, testified concerning Shell’s previously unsuccessful efforts at compliance, including consultations with experts from other companies. He testified that the technology did not currently exist to reduce cyanide levels to the required level but that Shell had developed “a potentially applicable cyanide-removal process” and that “laboratory investigations are continuing.” The details of the process were not given. The witness also testified that for Shell to presently comply with Rule 408(a) it would have to shut down its catalytic cracking units, drastically cutting the refinery’s production and requiring Shell to lay off many of its employees. Evidence was introduced that the adverse environmental impact of Shell’s discharge was minimal, but the Board commented that the evidence was not persuasive. The Illinois Environmental Protection Agency did not cross-examine the witness or attempt to elicit the details of the process. In its affidavit in support of the motion for reconsideration, Shell gave a brief explanation of the process and additional discharge data compiled since the date of the hearing.

The petitioner first contends that the Board failed to base its decision on the manifest weight of the evidence in the record before it and therefore denied petitioner due procss of law. We believe that the issues in this case may be more clearly considered by discussing how petitioner’s objection separately relates to the Board’s orders. The Board’s earlier order will be considered first.

Section 2(b) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111%, par. 1002(b)) states the purposes of the Act:

“# * * to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them.”

Section 26 (Ill. Rev. Stat. 1973, ch. 111%, par. 1026) gives the Board the power to adopt “such procedural rules as may be necessary to accomplish the purposes of this Act.” Section 35 provides in part:

“* * * the Board may grant individual variances beyond the limitations prescribed in this Act, whenever it is found, upon presentation of adequate proof, that compliance with any rule or regulation, requirement or order of the Board would impose an arbitrary or unreasonable hardship.”

Pursuant to these provisions, the Board formulated Rule 405(b), Rules and Regulations of the Illinois Pollution Control Board, Chapter 1: Procedural Rules, Rule 405, which states in part:

“No variance shall be granted, with or without hearing, without adequate proof by the petitioner that compliance would impose an arbitrary or unreasonable hardship.”

The burden of proof is thus on the petitioner seeking a variance to prove that compliance with an applicable Board regulation would create an arbitrary or unreasonable hardship for the petitioner. Section 36(a) adds:

“In granting a variance the Board may impose such conditions as the policies of this Act may require. If the hardship complained of consists solely of the need for a reasonable delay in which to correct a violation of this Act or of the Board regulations, the Board shall condition the grant of such variance upon the posting of sufficient performance bond or other security to assure the completion of the work covered by the variance.” (Ill. Rev. Stat. 1973, ch. IIP/2, par. 1036(a).)

The section requires that when the arbitrary or unreasonable hardship alleged in the petition consists of reasonable delay in complying with the Board regulations, the Board shall require “security” as a condition to granting a variance.

Shell presented uncontroverted evidence that an effective removal process for cyanide does not yet exist mid that, for Shell to comply, it would have to close its catalytic cracking units, which would disastrously reduce employment and production at the Wood River refinery. Shell met its burden of showing that compliance with Rule 408(a) would at this time result in an unreasonable hardship for the corporation and its employees. The Board, however, determined that Shell failed to comply with the requirements of Section 36(a):

“The Board finds this petition to be similar to that filed by Texaco, PCB 73-6, decided July 19, 1973. There, as in the present case, Petitioner was seeking a variance from Rule 408. In Texaco (PCB 73-6), we denied the variance from Rule 408 because the Petitioner had not come forth with a program to achieve cyanide reduction. No date was given for ultimate compliance. The Board was not given any commitment as to the type of cyanide control program.
Shell has not presented any time table to the Board showing ultimate compliance nor has it set forth what type of program it is going to undertake to control the problem. Mere reference to “laboratory investigations are continuing’ is not sufficient to identify the pig in a poke’. (Texaco, 73-6).”

Shell’s efforts were insufficient because the Board could and did impose a “condition” pursuant to section 36(a) in addition to that of showing an arbitrary or unreasonable hardship. The Board required the condition suggested in the second sentence of section 36(a), that “other security” be shown in the form of a firm completion date or explanation of the petitioner’s research and development plans, before the variance would be granted. Surely the Board could reasonably conclude that some kind of firm assurance of compliance or attempted compliance was required by the policies of the Act. (See section 2(b), supra.) Based on the undisputed facts that no compliance date was given and that Shell’s plans were not explained at the hearing, the Board’s decision was not against the manifest weight of the evidence.

Petitioner further argues that the Board’s decisions were against the manifest weight of the evidence because the evidence Shell presented in its affidavit in support of its motion to reconsider allegedly cured the defects the Board found in the evidence Shell presented at the hearing. Shell’s contention is without merit. Shell in effect argues that we should vacate the first order of the Board as being against the manifest weight of the evidence because the Board failed to consider evidence not offered until after the Board had returned its first decision. Not only is this illogical, but it also violates the rule that the Board cannot base its decisions upon information not contained in the record of the cause before it. (North Shore Sanitary District v. Pollution Control Board, 2 Ill.App.3d 797, 277 N.E.2d 754.) In regard to the Board’s second order, Shell’s attempt to introduce additional evidence was untimely and improper. Rule 334, Rules and Regulations of the Illinois Pollution Control Board, Chapter 1: Procedural Rules, provides:

“Rule 334. Motion Subsequent to Entry of Final Order. Within 35 days after the entry of a final order and within such further time as the Board may allow, any party may file a motion for rehearing or modification of the order, or to vacate the order or for other relief * * *. A motion that in substance requests a variance shall not be brought under this rule.”

Petitioner’s introduction of new and additional evidence concerning emissions, testing techniques and proposed research and development plans really constituted a new proceeding, a request for a variance.

Petitioner also argues that it was denied equal protection of the law because it was treated differently from other petitioners who were granted variances. Shell cites Morey v. Doud, 354 U.S. 457, 1 L.Ed.2d 1485, 77 S.Ct. 1344, for the proposition that distinctions between business entities engaged in the same business must be reasonably based on differences between the businesses. Petitioner contends that in two subsequent cases, Clark Oil & Refining Corp. v. Environmental Protection Agency, PCB 73-238, and Union Oil Co. v. Environmental Protection Agency, PCB 72-447, the Board granted variances to the other refineries when the description of their operations and the cause of their cyanide problems indicated no real difference with the instant case. There were significant differences. In the Clark Oil case the Board found that the petitioner .violated the cyanide standard only 10% of the time, that it was developing a firm program to correct excessive cyanide discharges and that its discharge had a minimal adverse impact on the Mississippi River. In the Union Oil case the petitioner presented extensive evidence showing that numerous methods of control had been attempted or were being seriously considered and that despite the fact that petitioner’s emissions constantly exceeded the limit, it had instituted a good-faith program of continuing research and development. These factors combined with the finding that the ultimate environmental impact of granting the variance would be minimal.

For the foregoing reasons, the order of the Illinois PoHution Control Board denying without prejudice Shell’s petition for variance and denying SheU’s motion for reconsideration are affirmed.

Affirmed.

EBERSPACHER and CARTER, JJ., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert J. Legel, Defendant-Appellant.
    (No. 73-270;
    Second District
    December 18, 1974.

      Franz & Franz, of Crystal Lake, for appellant.
    William J. Cowlin, State’s Attorney, of Woodstock, (James Boback, Assistant States Attorney, and James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant was charged, by complaint, with the offense of public indecency in violation of section 11 — 9(a)(3) of the Criminal Code. (Ill. Rev, Stat. 1971, ch. 38, § 11 — 9(a)(3).) After a bench trial, he was foúnd...'' guilty-and fined $100. He appeals claiming that he was not proven guilty beyond a reasonable doubt, that his actions did- not occur- in a public place, and that in reaching the decision the trial court erroneously considered a videotape of the defendant.

After an April 9 conversation with a neighbor of the defendant, -a Crystal Lake police officer came to the neighbor’s home at 4:30 P.M. on April 12, 1973. The neighbor had two minor daughters, approximately 13 and 14 years of age. The officer set up an observation post at the picture window of the neighbor’s living room. The vantage, because of the grade of the lots, offered the officer a view of the neighbor’s back yard, defendant’s back yard, residence, and the interior of defendant’s dining room which was visible through sliding glass, doors. The two homes were approximateely 70' apart) on back-to-back lots which were separated by a row of bushes.

At about 8:30 P.M., the officer (with his naked eye) observed the defendant, with a fight overhead, stand up from the dining room table and, without any attempt to veil the glass doors, throw his bathrobe back behind his hips, expose his nude thigh and crotch area, take his penis into his hand and move his hand about. Defendant repeated these actions at different times during the course of approximately 30 minutes.

The- officer had arrived equipped with a 35-mm. tripod-mounted still camera and a mounted videotape camera with a zoom lense. After observing the first incident, he started the videotape camera and manually operated the still camera. A 22-minute videotaping óf the defendant and eight still photographs resulted. The still photographs, admitted into.evidence over defendant’s objections, corroborated the testimony of the officer concerning defendant’s actions.

After first asking whether defense counsel had any objections, and having received a negative response, the trial court viewed the videotape. The State failed to formally introduce the videotape into evidence, and it is not part of the record before this court. The officer was the only witness to testify. • •

• Defendant claims that he was not proven guilty beyond a reasonable doubt in that the evidence failed to show that it was his intent to arouse or to satisfy his own sexual desire. For a conviction under section 11 — 9(a)(3), it must be proved that a defendant has committed “a lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person.” Committee Comments state:

“Subsection (a) (3) would replace the former statute aimed specifically at exhibitions (Ill. Rev. Stat. 1961, ch. 38, § 159a). The ..prevailing opinion is .that the exhibitionist is much more offensive than he is dangerous * * ”. It should be noted that the ex- . posure necessary is .an exposure of the “body’ and not of a pariticular part. This does not imply an intent to regulate, swim fashions or proscribe by state law the wearing of ‘short shorts’ on public streets. The sexual intent qualification of the provision as ... drafted is deemed adequate to prevent such a stretch of this subsection. However, certain exposures of the body could occur which • would justly deserve attention as shocking and disgusting public affronts.” (S.H.A. ch. 38, § 11 — 9, 433. (1972).)
“v * s (Exhibitionists are said to gain sexual gratification from • their acts by the shock and consternation caused in those to whom the exposure is made. * * • *)” (S.H.A. ch. 38, § 11 — 9, 431-32 ■ (.1972).)

To sustain a conviction for this type of crime the evidence must be clear and conyincing or substantially corroborated. (People v. Great, 42 Ill.2d 578, 580 (1969).) The credibility and weight to be given the testimony of the witnesses is left to the trier of fact and his decision will be reversed only if. the evidence is' not sufficient to remove all reasonable doubt of defendant’s guilt. (People v. Neidhofer, 126 Ill.App.2d 65, 68 (1970).) Intent is typically proved by circumstantial evidence and, in the absence of circumstances inconsistent with the requisite intent, intent is inferred from the evidence establishing the other essential elements of the crime. People v. Mikota, 1 Ill.App.3d 114, 118 (1971).

In the present cause, the- officer testified that he observed the defendant at- different times on the same evening stand up from his rfining room table, throw his bathrobe back behind his hips, expose his nude crotch area, take his penis in his hand and move his hand about. The defendant performed these acts before unveiled glass doors, with a light overhead, in plain view of the casual observer in the neighbor’s living room. The defendant made no attempt to conceal his activities. To the contrary, the evidence reveals that he did everything possible in order to expose his lewd acts to others. The still photographs substantially corroborate the officer’s testimony. This evidence is clear, convincing and uncontradicted. It leaves no doubt that the defendant’s intent was to gain sexual gratification by causing shock and consternation in those who observed his exhibition.

Defendant next contends that the interior of his dining room, which opens onto a private backyard bordered by a row of shrubbery, is not a “public place” within the meaning of the statute. Within the section charging the defendant, “public "place”, is specifically defined as “any place where the conduct may reasonably be expected to be viewed by others.” (Ill. Rev. Stat. 1971, ch. 38, 11 — 9(b).) In discussing what constitutes a public place, the Committee Comments state:-

“Section 11 — 9(b) was added to forestall unnecessary ambiguities arising over the phrase public place’ absent statutory definition. It was considered by the Illinois Supreme Court in People v. Simcox, 379 Ill. 347, 40 N.E.2d 525 (1942). In reviewing a conviction under the ‘class libel’ act (Ill. Rev. Stat. 1961, ch. 38, § 471), tire court noted the variety of fine gradations of meaning that have been attached to the term and ruled that for purposes of that act, exhibition and sale of allegedy criminal matter in private homes by door to door solicitation was not distribution in a public place.’ The holding is a narrow one; one that can hardly be said to preempt further discussion of the meaning of the phrase in Illinois. The meaning which has been written into this section is one that is tailored specifically for the purposes of this section-protection of the public from shocking and embarrassing displays of sexual activities.
Generally speaking, the ‘reasonable expectation of public view’ test adopted, is but a minute refinement of the publicity test employed in the 1953 exhibitionist statute. It is the probability of public view that is crucial rather than the ownership or use of the particular real estate upon which the act occurs. For example, a person standing nude before a lighted window of his private apartment at night, adjacent to a well traveled public sidewalk would be, for purposes of this statute, in a public place. Gontrawise, a couple in a parked car on a public right-of-way but in a lonely country lane might not be in a public place, depending upon the likelihood of others traversing this particular area at such hours.” (S.H.A. ch. 38, § 11 — 9, at 434 (1972).)

The example in the Committee Comments clearly denotes that a room in one’s own home may be a public place under certain circumstances. The distinction between the example ánd the case at bar is that defendant’s acts were not viewed from a vantage point on a public street but from a private vantage point in the neighbor’s living room. The distinction does not, however, automatically render the defendant’s conduct private. The vantage point of the observer is relevant only insofar as it sheds light on the controlling inquiry of whether there was a reasonable expectation that the actor’s conduct would be viewed by others. The purpose of this section is to protect the public from shocking and embarrassing displays of sexual activities. A person need not be in a public place to be a member of the public. The ambit of protection afforded by this statute clearly extends to members of the public in their own homes.

The duty lies with the deviate to keep his activities private. Where the evidence shows that it was reasonably foreseeable that the lewd conduct would be viewed by the casual public observer, there is a reasonable expectation of public view, and the acts can be held to have occurred in a “public place” by reason of the statutory definition.

Defendant maintains that' his home is his castle and that therefore activities within the confines of his walls are private. This is a nonsequitur. It is true that a person’s home is protected by law from intrusion by trespassers, but activities within the confines of one’s home are protected only to the extent that the individual seeks to preserve his activities as private.. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” (Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 582, 88 S.Ct. 507 (1967).) Such is the present case. The facts, as related, clearly show that defendant made no attempt to preserve his activities as private. A reasonable man in the position of the defendant would expect his conduct to be viewed by others (and here, “others” included the minor girls of the neighboring family). We find that, under the instant circumstances, defendant’s dining room qualifies as a public place within the meaning of the statute. See People v. Baus, 16 Ill.App.3d 136, 138 (1973).

It is finally claimed that by considering the videotape of the defendant in reaching its decision, the trial court committed reversible error. Prior to viewing the videotape, the State laid a foundation for its admission into evidence. The defense counsel, on inquiry from the trial court, stated that he had no objection to the court viewing the videotape. After the viewing, however, the State failed to formally introduce the videotape into evidence.

Courts of review will not reverse for harmless, technical or formal errors where substantial justice has been done. (People v. Jones, 125 Ill.App.2d 30, 39 (1970).) “The question upon review is not whether the record is perfect but whether the defendant has had a fair trial under the law and whether his conviction is based on evidence establishing his guilt beyond a reasonable doubt. Where the error complained of could not reasonably have affected the result the judgment will be affirmed.” People v. Touhy, 361 Ill. 332, 355 (1935).

In the present cause, it is clear that the, defendant had no óbjection to the trial court viewing the videotape. When the trial court viewed the videotape it became part of the evidence. The failure of the-State to formally introduce the videotape was no more than a technical error. The defendant attempts to elevate the State’s oversight 'to reversible error. We cannot agree. Defendant makes no claim that the videotape in any way mitigates the other evidence presented against him. A’rfeview of the evidence before us, which does not include the videotape, supports the finding of guilty beyond a reasonable doubt.

Judgment affirmed.

RECHENMACHER and GUILD,’JJ., concur.

       Although the officer, while standing on the sidewalk in front of the neighbor’s home, did not witness any of the defendant’s acts, still he testified that he could see through the “upper two-thirds” of the glass doors leading into defendant’s dining room.


author: ’ Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sammie Strickland, Defendant-Appellant.
    (No. 12373;
    Fourth District
    November 27, 1974.

      John F.' McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    C. Joseph Cayanagh, State’s Attorney, of Springfield (J. William Roberts, Assistant.State’s Attorney, of counsel), for the People.
   ’ Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Sammie. Strickland, appeals from a sentence imposed upon him of 6 to 18. years after revocation of his probation. The only issue presented to this court is whether the trial court abused its discretion in imposing such a sentence upon probation revocation.

On May 26, 1972, defendant pleaded guilty to the offense of robbery in violation of section 18 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 1). Pursuant to plea negotiations with the State defendant was sentenced to,. 3 years’ probation conditioned upon 6 months’ imprisonment. Defendant was 17 years of age at the time of the offense, and the charge arose from a purse-snatching incident in Springfield, Illinois. On April 27, 1973, a six-count petition to revoke probation was filed alleging that defendant had committed the offense of burglary, various thefts, and,had obtained control over a stolen vehicle (in addition to failing to report to his probation officer). The revocation petition set forth the particulars of the various acts alleged. A hearing was held on.May 29 and 30,, 1973, and defendant was found guilty of violating his probation on all counts. A sentencing hearing was held on July 2, 1973, at which time, the State presented no evidence in aggravation but did-request a 6- to;.18-year sentence stating “a e * Rut, in light of the fact that the.defendant was convicted of charges, and a total, I believe, Your Honor, of six different charges, all constituting felony offenses involving three entirely separate and distinct incidents, I believe, your Honor, that the appropriate penalty is in fact incarceration ° (Emphasis added.) The presentence report of the probation officer recommended incarceration. Defense counsel presented no evidence in mitigation .hut did state that defendant was now 18 years of age and would like to continue on probation in , order to secure a job and get married. .The court then stated;

“The Court: I can’t do that [set aside the order revoking proba- ■ tion], I think with all of the violations. that, the defendant has committed, that he is guilty of — uh—a conduct that justified my revoking his probation and I don’t think I should set it aside.' ’

Defendant was then sentenced to 6 to 18 years’ imprisonment with credit for over a year spent on probation.

Defendant contends that the trial judge abused his discretion in imposing sentence. On the basis of the record before us, we agree. In People v. White, 93 Ill.App.2d 283, 288, 235 N.E.2d 393, 396 ( 4th Dist.), this court stated:

“It is clear that upon revocation of probation, sentence may be imposed for the original offense upon the conviction of which defendant was granted probation. If the act aHeged to be a violation of probation constitutes another crime and sentence is to be imposed for the subsequent act, the defendant should be tried for such crime and sentence imposed under the orderly criminal processes. This does not preclude sentence on the original offense and the distinction is drawn so as to obviate any question of double jeopardy. [Citation.]

This court went on to state that an appellate court is compelled to scrutinize the sentence imposed by the trial court where an examination of the record reveals that in the sentencing process “there was a commingling of matters relating to the original offense with the conduct allegedly constituting the violation of probation * *

On the basis of.the record before us in the instant case, we feel compelled to closely scrutinize the sentence imposed because of the possibility of such commingling. Defendant was 17 years of age when the offense was committed, no physical injury resulted to the victim of the crime, and it was defendant’s first offense. At the sentencing hearing the State presented no evidence in aggravation but did call to the court’s attention the fact that probation had been revoked because defendant was “convicted” of six different charges. Nevertheless, the record does not disclose any disposition of the six counts giving rise to the probation revocation. The court made no finding in imposing sentence except to state that defendant was not justified in returning to probation because óf his probation violations.

The offense of robbery is a Class 2 felony for which “the minimum teim shall. be' 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of defendant, sets a higher minimum term * # (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3).) In imposing sentence, either initially or upon revocatioú of probation, the penalty provisions for the offense in question and the statutory reasons for increasing the minimum sentence should be the guiding light. However, a trial judge may consider a defendant’s conduct while on probation in order to reflect the court’s reassessment of defendant’s “rehabilitation potential.” (People v. Ford, 4 Ill.App.3d,291, 280 N.E.2d 728.) Nevertheless, the sentence imposed here cannot be explained under any of these relevant factors, and the possibility of an improper commingling of the initial offense and the conduct giving rise to the probation revocation is clearly present. Therefore, a new sentencing hearing is required.

Accordingly, the sentence is vacated, and the cause is remanded for a new sentencing hearing in conformity with the views expressed herein.

Reversed and remanded.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE RECHENMACBER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Pritchett, Defendant-Appellant.
    (No. 73-253;
    Second District
    December 26, 1974.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Phüip G. Reinhard, State’s Attorney, of Rockford, and James W. Jerz, of Model District State’s Attorneys Office, of Elgin, for the People.
   Opinion by

Mr. JUSTICE RECHENMACBER.


author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Perry Gillery, Defendant-Appellant.
    (No. 73-104;
    Second District (1st Division)
    December 26, 1974.

      . Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.,
    Jack Hoogasian, State’s. Attorney, of Waukegan, James W. Jerz and Charles E. Sheehy, of Illinois State’s Attorneys Association, of Elgin, for the People.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant, Perry Gillery, pleaded guilty on January 6, 1972, to a violation of the Illinois Securities Law (Ill. Rev. Stat. 1971, ch. 121%, par. 137.12F), and was sentenced to a term of 2%-3 years in prison. No direct appeal was taken from the conviction. However, on September 29, 1972, defendant filed a pro se “Petition for Reduction of Sentence" which the court treated as a post-conviction petition and appointed counsel with directions to file any necessary amended pleadings.

■ Counsel who had represented defendant both at the guilty plea hearing and the sentencing hearing, thereupon filed a petition for post-conviction relief alleging that the sentence was unlawful and unconstitutional. Defendant asked that the sentence be vacated and that he be resentenced under the Unified Code of Corrctions which classified the charged offense as a Class 4 felony with a minimum of 1 year and a maximum of 3 years. (Ill. Rev.-Stat. 1973, ch. 38, pars. 1005 — 8—1(b)(5), and (c)(5).)

The trial court denied the post-conviction petition on the ground •that excessiveness of sentence, the sole issue raised, was not of constitutional dimensions and could not therefore be reviewed under the Post-Conviction Act. We agree. The mere excessiveness of a sentence for a single crime which was within statutory limits when imposed does not create a constitutional issue which may be basis for post-conviction relief. See People v. Ballinger (1973), 53 Ill.2d 388, 389-90; People v. Arbuckle (1974), 17 Ill.App.3d 932.

The defendant has also claimed in this court that he was denied effective assistance of counsel, because trial counsel failed to review the report of proceedings at his sentencing hearing in connection with the hearing under the Post-Conviction Act.

In the course of the post-conviction hearing, the judge asked defendant’s counsel for a certificate or statement in the record that he had examined all of the proceedings and had conferred with defendant so that he was in a position to raise all possible constitutional issues. Counsel responded that he had corresponded with defendant and had examined the transcript of proceedings. The defendant urges, however, that the statement of counsel is incredible since no transcript of the sentencing hearing was found in the record. Defendant argues that this demonstrates incompetence of counsel because of a failure to comply with Supreme Court Rule 651(c) (Ill. Rev. Stat. 1971, ch. 110A, par. 651(c)), and that the cause must therefore be remanded for a new post-conviction hearing with new counsel who has before him and can review the transcript of the sentencing hearing.

The record before us, however, does include the transcript of the sentencing hearing, and, while the State concedes that defense counsel could not have examined the transcript of the sentencing hearing at the time of his representation of defendant at the hearing on the post-conviction petition, no prejudice has resulted. Appellate counsel for defendant with the benefit of the transcript of the sentencing hearing has not "raised any issue except the excessiveness of the sentence which, as we have concluded, is not of constitutional dimensions.

The purpose underlying Supreme Court Rule 651(c) is to insure that all indigente are provided proper representation upon presenting claims of constitutional deprivations under the Post-Conviction Act (People v. Brown (1972), 52 Ill.2d 227, 230). The fact that the transcript of the sentencing hearing is before the reviewing court on the appeal from the denial of the post-conviction petition taken alone would not ordinarily satisfy the requirements of Supreme Court Rule 651(c). See People v. Gonzales (1973), 15 Ill.App.3d 265, 267-8; People v. Luechtefeld (1973), 11 Ill.App.3d 407, 408; People v. Rooney (1972), 6 Ill.App.3d 527, 528; see also People v. Slaughter (1968), 39 Ill.2d.278.

However, in Gonzales, ■ the issue .raised in the post-conviction petition was an unfulfilled sentencing promise. In Luechtefeld, a coerced plea was alleged. And in Rooney, the “trial récord” was not examined: In .Slaughter;, which was a prelude to the present Supreme Court Rule .651 (c), the amended post-conviction petition- sought to raise the issue of defendant’s competency to stand trial and deprivation of counsel at: a time when an incriminatory statement was made which was used agáinst defendant at trial. There are no comparable issues on this record.

Under the circumstances before us we find no violation of the underlying purposes of Supreme Court Rule 651(c). Defendant was clearly provided proper representation adequate to present any claim of constitutional deprivation which he might have. The same defénse counsel at the sentencing hearing had also filed an amended post-conviction petition foHowing defendant’s pro se petition. He was, of course, familiar with the sentencing hearing in which he participated, presented and questioned defendant as a witness in his own behalf, and vigorously argued in mitigation and for probation. New appeHate counsel for defendant has pointed out no constitutional errors.

The court below, therefore, did not err in dismissing the petition, and the judgment is affirmed.

Affirmed.

GUILD and HALLETT, JJ., concur.


author: Mr. JUSTICE LITTLE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Philip E. Gillespie, Defendant-Appellant.
    (No. 73-237;
    Second District
    December 26, 1974.

      Van R. Richards, of Elgin, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Jr.; Assistant State’s Attorney, of counsel),-for the People.
   Mr. JUSTICE LITTLE

delivered the opinion of the court:

Defendant was indicted and tried by a jury in Kane County for burglary .¡'Following a verdict of guilty, his motion for new trial and application for probation were denied. He was sentenced to a term of from 2Vi to 7 years. Defendant appeals his conviction on two grounds. The first is that the trial judge erred in overruling his objection to expert testimony relating to blood grouping tests and statistics. The second is. that' defendant was not proven guilty beyond a reasonable doubt. The. real ¡contested element in the case is whether the defendant was properly. identified beyond a reasonable doubt as one who committed a burglary. The evidence directed toward that issue is solely circumstantial, and a detailed summary of the facts is appropriate.

At about 7 o’clock at night on November 25, 1972, the owner of a television and appliance store in Elgin had occasion to return there after closing hours. As he looked through the glass front door, he saw on the floor" a ring of keys usually kept in the cash register. After entering, he noticed that certain merchandise had been disturbed and he felt a strong wind- coming from the rear of the building. Closer inspection disclosed that wooden paneling forming a false wall in front of a back window had been - pushed in and the glass window pane had been broken. A television set too large to fit through the opening was near the window. He called the police who investigated. In addition to the foregoing, jimmy marks were observed on the inside of the rear door, and it was determined- that several television sets were missing. Following the investigation, the paneling in front of the broken window pane was nailed back in place. The police and owner then left the store.

Later that night, between 10 and 11 o’clock, a part-time employee of a nearby VFW Hall observed a Mustang automobile backed up to the store. He saw tWo occupants in the automobile, but was unable to identify either, except as to race, which he characterized as black. A while later, he noticed that the hood and trunk of the Mustang were open, but saw no one near the car. Then, as he entered his own automobile parked nearby, he heard the sound of glass breaking. He immediately wrote down the license number of the Mustang and telephoned, the police from across the street. When he returned, the Mustang was not there.

In response to his telephone call, the police and owner returned to the store. The glass front door was shattered. Most of the broken glass was on . the outside of the door, .indicating to them that it had been broken out from inside the building. There was a television console too large to fit through the glass opening immediately inside the door. Blood stains were on top of. the set and were . also, discovered near the ..broken window ,and at. other, locations in the store. The wooden: paneling which recently had. been replaced was once again pushed in. The owner found that since they had previously left the store, other television sets were missing. A glazier was called to replace the glass, in the front door, and the rear window was boarded.

. In the meantime, detectives had ascertained the name of the owner of the Mustang to be Robert Powell. They proceeded to his address where they saw it parked and observed blood stains bn the floor of the car and also on the sleeve of a jacket, inside it. The detectives then went to . Powell’s apartment. There were blood stains outside the door. They knocked, identified themselves, and were admitted by Powell. Inside were Powell, his wife and baby, the defendant and Isaac Gist. Defendant’s aim was wrapped with a blood-soaked bandage secured with black electrical tape. Gist also had a small cut on his hand. They told police that they had been fighting. Several television sets, later identified - as those missing from the store, were found in the apartment. The police also discovered a blood-soaked rag and blood stained television tags in the kitchen wastebasket. Other television sets were found under a stairway jn the building. Powell, Gist and the defendant were taken into custody and charged with burglary. In the course of examining and administering first aid to the defendant, it was observed that, the cuts on :his arm were fresh and bleeding. Later, defendant was taken to a hospital, and, with his consent, two blood samples were drawn. The police also obtained scrapings of the dried blood stains from various locations within the store. The blood samples and scrapings were then submitted . to the State crime laboratory for tests. .......

Powell testified that he and the defendant spent the afternoon drinking. Around 6:30 P.M. they drove in Powell’s Mustang .to a tavern across the street from the television store. As they entered the tavern, the defendant asked Powell for his car keys; He gave them to the.'defendant who then left. Powell had a drink and in a while defendant returned. When they returned to the Mustang, it'had been moved from its previous parking space. They stopped by another tavern for a few drinks and then defendant drove Powell to his apartment and let him out. Later that night defendant and Gist came to Powell’s apartment bearing television sets. Shortly thereafter the police arrived. Although Powell was . charged with burglary, he had not been indicted: at trial time.- Gist was indicted, but his whereabouts at the time of -trial was not known.' '- ''

. „ . The contested evidence matters arose during the testimony- of Robert Gonsqwski, the State’s witness on blood grouping tests. He testified about his professional education, training and experience as a certified serologist and his employment as a criminalist for the State Crime Laboratory at Joliet. His acceptance by the trial court as an expert in the scientific study of the properties and action of serum of the blood was unchallenged by defendant. He testified about the history of the ABO blood grouping system and the classifications into A, B, O and AB blood types. He described other characteristics of blood, including the RH factor and a “rheumatoid arthritis factor,” which he said are unrelated. With respect to the latter, he testified that the blood of all persons known to have that disease contains an identifiable characteristic known as a positive rheumatoid arthritis factor. He testified further that a finding of a positive rheaumatoid arthritis factor in one’s blood did not necessarily mean that such person suffered from the disease.

With respect to the blood samples and scrapings submitted for examination, he described the tests he conducted and the results found. He stated that the dried blood, identified as that found at the scene of the burglary, was determined to be human blood, type A, with' a positive rheumatoid arthritis factor. The whole blood samples, identified as those taken from the defendant, were found to be human blood, type A, RH positive, with a positive rheumatoid arthritis factor. He then stated that he did not form any conclusions as to identity, but merely reported his findings. He further testified, over objection, that approximately 41 per cent of the Caucasian population and 27 per cent of the Negro population have type A blood. He also stated that from 5 to 10 per cent of the population as a whole have a positive rheumatoid arthritis factor in their blood regardless of the blood group in which they are classified. By combining such statistics, he said that 4.1 per cent of the Caucasian population and 2.7 per cent of the Negro population could have Type A blood, with a positive rheumatoid arthritis factor. He testified that the foregoing statistics were based upon journals published by two named pharmaceutical firms. On cross-examination, he testified that those firms sell chemical reagents to hospitals and laboratories for use in conducting tests and they compile the blood grouping statistics based upon data supplied by blood banks throughout the country. Concerning the RH factor, he stated that his laboratory was not equipped to conduct such tests on dried blood and he had no knowledge whether another laboratory had conducted such tests. He testified that approximately 85 percent of the population at large has a positive RH factor in their blood but he had no statistics at hand concerning the frequency of the RH factor in the Negro population.

In defendant’s behalf, his sister testified that the defendant had participated in athletics and had served in the Navy for 4 years. Neither he nor any member of their family had a history of or suffered from rheumatoid arthritis.

Defendant’s first ground for reversal on appeal is that the trial court erred in admitting the results of the blood tests conducted in this case and in allowing the State’s expert witness to testify as to statistics of blood types in the population at large. As to the first point, defendant urges that the court should adopt an exclusionary rule restricting admission of blood tests to instances excluding suspects as the ones committing the crime. As to the second, he asserts that the similarity of blood types found at the scene of the burglary with his own merely places him in a huge numerical group of persons and does not satisfy the requirement of proof beyond a reasonable doubt. Defendant failed to raise any objection to the admission of the results of blood tests during the course of trial, thereby precluding him from asserting such as error on appeal. However, the revelancy of blood grouping tests to establish identity in criminal cases is a matter of first impression in the reviewing courts of Illinois and, for that reason, the court will consider the points raised initially on the appeal.

The reviewing courts of this State have not heretofore considered the admissibility of blood grouping tests generally, as distinguished from chemical tests of blood to determine intoxication or disease. However, the admissibility of blood grouping tests in civil and criminal cases has been before other courts in the United States for over forty years. The pioneering work in grouping or typing blood was done about the year 1900 and is reviewed in the Annotation, “Blood Grouping Tests,” 163 A.L.R. 939, 941-42, as follows:

“Dr. Landsteiner discovered the presence of two genes (also known as antigens or agglutinogens) called ‘A’ and ‘B’ in the human blood. Thus the blood of every individual falls in one of the following groups:
Group A (red blood cells containing only gene A).
Group B (red blood cells containing only gene B).
Group AB (red blood cells containing both genes A and B).
Group O (red blood cells containing neither gene A nor B).
* #
It is possible to determine in which group the blood of a particular person belongs by mixing a sample of his blood with solutions containing the antibodies and observing whether or not the blood clots (or agglutinates). Blood belonging to groups A, B, and AB will clot when in contact with antibodies a, b, and a or b, respectively, but blood in group O will not agglutinate in the presence of either antibody.”

A supplemental annotation in 46 A.L.R.2d 1000, at page 1025, states:

“There seems to be substantial agreement among the courts that the results of blood grouping tests are admissible in evidence (notably in criminal prosecutions) on the question whether particular blood (or bloodstains) was (or was made by) the blood of a specified individual.”

It is common knowledge that the medical profession relies on the ability of technicians to determine blood types with accuracy in order to administer blood transfusions. In a similar context, the supreme court said in People v. Adams, 25 Ill.2d 568, 573-74:

“While this court has not previously passed upon the admissibility of tests designed to establish the amount of alcoholic content in an individual’s blood stream, such tests are generally accepted by the medical profession, courts and legislative bodies as reliable, with a direct analysis of the blood, as was here present, being considered the most dependable method.”

Accordingly, it is appropriate that the court take judicial notice of the scientific reliability of the ABO system of blood grouping, if predicated upon a sufficient foundation in conducting the tests.

In the case at bar, defendant consented to giving samples of his blood and there has been no objection raised to the chain of custody of the samples and scrapings or to the accuracy of the tests conducted. However, the defendant argues that the Legislature has recognized the danger of admitting results of blood tests in paternity cases by allowing them only if definite exclusion of paternity is established. “An Act in relation to the use of blood tests to determine paternity” (Ill. Rev. Stat. 1973, ch. 106%, par-. 1 et seq.) applies only in a civil action, in which paternity is a relevant fact and provides, in part, “The results of the tests shall be receivable in evidence only if definite exclusion is established.” By analogy, defendant claims that the rule should be the same in criminal cases, where proof beyond a reasonable doubt is required. The reasons the legislature enacted the exclusionary rule in paternity cases may be based on social policies which override the scientific reliability of the evidence. Suffice it to say that the legislature did not extend the exclusionary rule to criminal cases. The court finds no other expression of public policy, by statute or otherwise, to exclude the results of properly performed blood grouping tests based upon the ABO system of classifying blood types.

Next, the defendant assert that the results of blood tests merely indicate that the blood found at the scene of the burglary could be that of the defendant and not that it was, in fact, his blood. He concludes that such evidence is inadmissible because it does not satisfy the requirement of proof beyond a reasonable doubt. He argues that the blood left at the scene of the burglary could be that of any one of a large group of other-person, and cites People v. Zammuto, 280 Ill. 225, to support his theory that such evidence is inadmissible. There, the State sought to prove identity by similarity of the defendant’s shoe with shoeprints left in the snow at the scene of a murder. The court observed that evidence concerning footprints may tend to prove identity, where there is a particular characteristic present, but such evidence has no effect in the absence of any peculiarity. It said that any two persons wearing shoes of the same size, if in the neighborhood, would have been liable to the charge with the same evidence, but it held there was no prejudicial error in receiving it. The instant case is distinguishable from Zammuto in several important aspects. First, the blood here contained particular characteristics differentiating it from blood generally. Second, the scientific reliability of the two types of evidence differ markedly. Finally, conceding that there may be a large group of persons having type A blood, with a positive rheumatoid arthritis factor, that group is narrowed considerably when confined to those in the neighborhood of the crime who have fresh bleeding cuts on their arms.

The evidentiary issue involved in proof of identity by circumstantial evidence is one of relevancy. “Relevancy is a tendency to render a proposition in issue more or less probable, in the light of logic, experience, and accepted assumptions concerning human behavior.” (Cleary, Handbook of Illinois Evidence § 12.1, at 206 ( 2d ed. 1963).) The matching of the bood types is only one link in the chain of evidence introduced by the State to prove the defendant’s participation in the commission of the crime. In addition, there is evidence that the defendant was in the proximate area of the store during the time it was initially broken into and that he had Powell’s Mustang tiren and at the subsequent break-in. A witness characterized both occupants of the Mustang at the latter time, when it was backed up to tire building, as being black. There is no evidence in the record to indicate defendant and Gist were not of that race. Fresh blood stains were found in the store at the broken window and on television sets, on the floor of the Mustang, on the sleeve of a coat in the car, on the walls outside .the door of the apartment at which defendant and Gist had recently arrived and on television tags in the kitchen wastebasket. Defendant had a blood-soaked bandage on his arm when apprehended shortly after the second break-in. Defendant and Gist brought recently stolen television sets from the burglarized store with them into the apartment. None of the foregoing items of evidence, standing alone, proves the defendant’s guilt beyond a reasonable doubt. Yet, each is of some weight, more or less, tending to prove that issue. “The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt.” (People v. Bernette, 30 Ill.2d 359, 367.) The results of the blood grouping tests performed here were properly admitted.

Defendant also urges that the trial court erred in allowing the State’s expert witness to testify that approximately 41 per cent of the Caucasian population and 27 per cent of the Negro population have type A blood and that from 5 to 10 per cent of the population as a whole have a positive rheumatoid arthritis factor in their blood. The only objection to such testimony during the trial was that there was no showing of “authoritativeness” of the figures. On appeal, defendant shifts his grounds to lack of “authentication” and that such testimony has no probative value. “A specific objection to evidence, based solely on a particular point, is a waiver of objections on all other points not specified or relied on. [Citations.] A party who seeks to exclude a piece of evidence should be explicit, and disclose to the trial court all defects in the proposed proof which he expects to urge upon this court in the event of an appeal * * * An objection to testimony, to be availed of in this court, must be raised in apt time, when the evidence is introduced.” (Forest Preserve District v. Lehman Estate, Inc., 388 Ill. 416, 429-30.) The objection directed to lack of authentication is inappropriate, in any event, because it applies only to documentary evidence. We infer that counsel meant to state as a ground of appeal his objection to the authoritativeness of the statistics, which will be considered. We shall also consider the relevancy objection for reasons heretofore stated.

Mr. Gonsowski was offered by the State as an expert witness in the field of serology and was accepted by the trial court as such. Although he was cross-examined as to his experience and qualifications, no challenge was made to his status as an expert. Accordingly, once he crosses the threshold as an expert witness, he may testify as to facts within the area of his expertise which are not common to the world as an aid to the jmy in determining the question at issue. (See People v. Jennings, 252 Ill. 534, 550.) Obviously, the frequency of certain blood types among segments of the population is not a matter of common knowledge, but is within the peculiar knowledge of an expert. Whether the blood left at the scene of the burglary is found to be in a relatively smaller or larger segment of the population is germane to the issue of identification. Thus, the statistics testified to are relevant to prove the guilt of the defendant, and may be considered along with the other circumstances of the case.

The particular facts or special knowledge testified to by an expert, on the one hand, must be distinguished from the basis of such facts or knowledge, on the other. The initial determinations are matters of law for the court to decide, whereas the latter affect the credibility of the witness and the weight to be given his testimony and, thus, are within the province of the jury. (See Siebert v. People, 143 Ill. 571, 579-581.) In the instant case, the State’s expert witness testified on direct examination that the blood-grouping statistics, which he was about to give, were based on journals published nationwide by a named pharmaceutical company. Defendant’s counsel objected to further testimony stating: “I don’t know how the pharmaceutical company comes up with the statistics, or * * The objection was overruled by the trial judge who observed: “It goes to the weight of the evidence.” After the statistics were stated, counsel renewed his objection on the ground that there had been no showing, of the authoritativeness of the company’s figures. The judge again overruled the objection advising counsel that he could cross-examine the witness on the subject, which he did. We find no error was committed in these rulings.

It should be noted that the statistical information based upon reports published by the pharmaceutical firm is hearsay, at least to the second or third degree. Nevertheless, such information is admissible as an exception to the hearsay rule. At 29 Am Jur 2d Evidence § 892, at 999 (1967), the author states:

“In almost every organized trade or occupation there are handbooks and other publications, containing information of everyday professional and business needs, which are intended to be circulated publicly and to be consulted by persons interested, which are tested by their use, and which are found by their experience to be trustworthy and to be actually relied upon by the persons engaged in the particular trade or occupation concerned. Such publications are generally held or assumed to be admissible under an exception to the hearsay rule that has never been precisely formulated.”

Wigmore analyzes this exception under the topic “Learned Treatises” finding that the exception is based upon principles of necessity and trustworthiness. (See 6 Wigmore, Evidence §1690 et seq. (3rd ed. 1940).) Necessity obviates the calling of scores of witnesses with first-hand knowledge of the underlying data collected. Trustworthiness is based upon the publisher’s lack of motive to misrepresent, its knowledge that every statement will be subjected to close scrutiny by professional colleagues and that its reputation depends upon the correctness of the material published. Standard mortality tables are accepted on a similar basis. (See Henderson v. Harness, 184 Ill. 520, 529.) The published statistics relating to frequencies of blood types fall within the foregoing exception to the hearsay rule.

The journals containing the information might have been admitted in evidence, subject to tire usual rules relating to admission of documents, or, as in this case, an expert in the particular field may testify as to the relevant material.

The safeguards for the truth of the facts or validity of the information supplied by an expert witness rest upon opposing counsel under our adversary system of trial advocacy. Supreme Court Rule 412 offers virtually complete discovery of the State’s expert witness, his reports and scientific tests. In the case at bar, defendant’s counsel received a copy of the witness’s written report containing his findings and the statistics of blood groupings to which he testified, in advance of trial. During the course of trial, counsel may avail of extensive cross-examination as to source material, which opportunity was afforded defendant here. The rule was delineated by the supreme court in Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 336, as follows:

“In our opinion expert testimony will be a more effective tool in the attainment of justice if cross-examination is permitted as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues. (Cf. Model Code of Evidence, Rule 529.) The author’s competence is established if the judge takes judicial notice of it, or if it is established by a witness expert in the subject.”

In accordance with the foregoing, the statistical information relating to percentages of blood types in the Caucasian and Negro populations and population as a whole was properly admitted for consideration by the jury.

The remaining ground urged on appeal is that the defendant was not proven guilty beyond a reasonable doubt. Counsel argues that the evidence did not exclude every reasonable theory of innocence. He also attacks the credibility of Powell, who had been drinking with defendant on the day of the burglary. The jury was properly instructed as to the applicable law in that regard in accordance with IPI — Criminal, nos. 3.02 and 3.17. The jury observed the witnesses and heard the evidence. “We may not substitute our judgment for that of a jury on questions involving the weight of the evidence or the credibility of the witnesses [Citations], and we will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt.” (People v. Mills, 40 Ill.2d 4, 19.) The evidence is more than sufficient to withstand such test. Having found no error, the verdict of guilty and judgment of the trial court thereon is affirmed.

G. MORAN and CARTER, JJ., concur.