author: JUSTICE CERDA PRESIDING JUSTICE TULLY,

text:
      In re ESTATE OF EDMUND G. POLIQUIN, Deceased (John B. Murnighan, Adm’r, Petitioner-Appellant and Cross-Appellee, v. Mary Carden, Respondent-Appellee and Cross-Appellant (First State Bank and Trust Company of Park Ridge, Respondent)).
    First District (3rd Division)
    No. 1—91—4054
    Opinion filed March 31, 1993.
    Rehearing denied May 28, 1993.

      TULLY, P.J., concurring in part and dissenting in part.
    Kovar, Brittain, Sedlz & Morris, of Chicago (John B. Murnighan, of counsel), for appellant.
    Carey, Filter, White & Boland, of Chicago (Edmund P. Boland and James F. White, of counsel), for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Petitioner John Murnighan, administrator with the will annexed of the estate of Edmund G. Poliquin, decedent, appeals from the trial court’s judgment determining that a certificate of deposit (CD) was held by decedent and respondent Mary Carden as tenants in common, awarding one-half of the CD to the estate of Edmund G. Poliquin and one-half to Mary Carden. Petitioner contends that respondent failed to meet her burden proof of a gift of the CD or of any interest therein by clear and convincing evidence and also claims that the trial court erred in determining the procedure to be used during trial. Respondent has cross-appealed maintaining that it was proved that certain of the deposits in question were created in compliance with the Joint Tenancy Act (Ill. Rev. Stat. 1989, ch. 76, par. 2) (Act) and that she presented sufficient evidence of a gift of the CD. We reverse.

Respondent testified at trial that she was decedent’s niece, that they were close as she grew up, and that she maintained these ties after she married. She saw decedent at least once a week over a 17-year period until decedent moved in 1971. She hosted birthday and anniversary parties for decedent and his wife. Decedent repaired items for her and her family and purchased a washing machine for her. After moving from his home, decedent alternated between living with his two daughters in Connecticut and Chicago. For a short time he also lived with his grandson in Chicago. In 1987, decedent, who was age 96, came to live with respondent. He had a falling out with one daughter and was not invited to stay with his grandson. On January 15,1988, decedent moved to the Oak Park Arms Hotel.

On January 3, 1987, while decedent lived with respondent, they opened a demand deposit account in joint tenancy and signed a buff-colored signature card to that effect. Phyllis Haban, who had little training concerning joint tenancy law, was a personal banking representative for the First State Bank and Trust Company of Park Ridge. She testified that a blue card should have been used because decedent wanted an interest-bearing NOW account. She then cut the signature portion from the card for the joint tenancy demand account and pasted it onto a card for an interest-bearing NOW account. The latter blue card did not contain the same joint tenancy language. However, a box on the blue card designated “Joint Survivorship” was marked.

On April 25, 1988, decedent and respondent went to the same bank to open an account with the purchase of a $50,000 CD. They both signed the card, which bore respondent’s address on the back. Neither the CD nor the card contained joint tenancy or survivorship language. Both Haban and Jack Moore, who was a cashier at the bank in 1988, testified that ordinarily a base or reference account was established for future accounts that may be opened under the conditions required for the first account as long as the same parties were involved. Another signature card was not necessary for additional accounts nor was the joint tenancy language repeated; a checking account, money market account, savings account or CD would just be different sections of a single account. Haban testified that once decedent’s checking account with a joint-tenancy-with-right-of-survivorship provision was executed, the CD account also would have contained that condition, since the same parties, decedent and respondent, were signatories to that account. Both Haban and Moore confirmed that only if an account with restrictions different than those of the reference account were to be established would another card with different language be required. No signature card with right-of-survivorship language was available when a CD was purchased.

Respondent testified that while they were at the bank, decedent gave her the CD and said that it was hers. She placed the CD in a filing cabinet in her home until decedent died and then gave it to decedent’s daughter to show the attorney for the estate. According to respondent, this was a gift which decedent gave to her to “bypass his will.”

In December 1988, the administrator brought this action as a citation against respondent, claiming that the estate was the rightful owner of the funds. After a hearing, the trial court held that respondent was entitled to one-half the funds as a tenant in common with decedent.

Petitioner Murnighan first argues that respondent Mary Car-den failed to sustain her burden of proof of a gift by clear and convincing evidence. However, we will consider first respondent’s claim that she proved by a preponderance of the evidence that a joint tenancy in the CD was created in compliance with the Act. (Ill. Rev. Stat. 1989; ch. 76, par. 2(b).) The Act governs the outcome of this issue. Section 2(b) states that in order to create rights of survivorship in personal property, each designated owner must sign an agreement authorizing payment of the entire account to the survivor. (See O’Vodka v. Rend Lake Bank (1990), 203 Ill. App. 3d 1007, 561 N.E.2d 360.) A certificate of deposit is considered to be “other evidence of indebtness” as noted in section 2(b) of the Act. In re Estate of White (1974), 56 Ill. 2d 265, 307 N.E.2d 122.

In the case before us, the trial court found that no joint tenancy was established when a CD account was opened at the bank because no joint tenancy language was included on the card for the CD account and the bank employees did not testify to the trial court’s satisfaction that there was a formal bank policy providing for CD joint tenancy accounts. The trial court also found that the Act required more compliance than was demonstrated by respondent. We agree.

We will next consider whether a gift to respondent of the CD was established. A gift is a voluntary gratuitous transfer of property from donor to donee where the donor manifests an intent to make such a gift and absolutely and irrevocably delivers the property to the donee. (Little City Foundation v. Capsonic Group, Inc. (1992), 231 Ill. App. 3d 122, 596 N.E.2d 146.) In order to prove a valid inter vivos gift, respondent must show donative intent on the part of decedent, delivery, and acceptance. (In re Estate of Stahl (1973), 13 Ill. App. 3d 680, 301 N.E.2d 82.) The trial court found that delivery of the certificate of deposit was made to respondent. Respondent testified that she accepted delivery, took the CD, and placed it in her file cabinet believing it to be a gift to her. No one refuted this testimony. The only question was whether respondent proved decedent’s donative intent.

Donative intent is intention on the part of the donor that there be a present and irrevocable transfer of the subject gift; delivery of the gift is the means whereby the intent is given effect. (Hall v. Country Casualty Insurance Co. (1990), 204 Ill. App. 3d 765, 562 N.E.2d 640.) Since we have found that no joint tenancy rights were established in the CD, there is no presumption of donative intent. (Murjic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 202 N.E.2d 470.) The burden of proving facts to show a gift is on the donee, and the proof must be by clear and convincing evidence. (Frey v. Wubbena (1962), 26 Ill. 2d 62, 185 N.E.2d 850.) Respondent testified that decedent said the CD was hers and gave it to her at the time it was opened. Respondent’s address was on the signature card. After decedent died, decedent’s daughter stated that respondent told her that respondent “had the CD that my dad [decedent] wanted her [respondent] to have.” The trial court stated that this testimony did not rise to the level of clear and convincing evidence of donative intent.

The form of the agreement is not conclusive of the parties’ intentions. (In re Estate of Schneider (1955), 6 Ill. 2d 180, 339 N.E.2d 378.) Each case must be evaluated in light of the circumstances presented. (In re Estate of Hayes (1971), 131 Ill. App. 2d 563, 268 N.E.2d 501.) If the account had been created for mere convenience, it would indicate a lack of donative intent. (In re Estate of Kaplan (1991), 219 Ill. App. 3d 448, 579 N.E.2d 963.) Here, decedent had opened a NOW checking account prior to the time the CD was placed in another account. Respondent did not receive statements for the checking account, nor did she write checks on that account. Although she was also a signator to that account, she did not believe she owned an interest in it and she has not claimed that account as hers. Since respondent did not handle decedent’s personal financial affairs, we do not believe the CD was established for decedent’s mere convenience. (In re Estate of Martin (1990), 201 Ill. App. 3d 1061, 559 N.E.2d 1112.) Respondent enjoyed a close relationship with decedent all her life. Not only did she grow up in the same house where he lived, she stayed close to him and his wife after she reached adulthood. After decedent had a falling out with each of his daughters, he lived with her at the age of 96 years. In our opinion a gift was proved by clear and convincing evidence and was sufficiently corroborated. (In re Estate of Hackenbroch (1962), 35 Ill. App. 2d 155, 182 N.E.2d 375.) Although we have reversed the trial court on this point, we will also consider petitioner’s other claims.

Petitioner first maintains that respondent did not disclose the entire transaction of April 25, 1988, because $5,000 was unaccounted for. Petitioner first brought this to the trial court’s attention in a motion to reopen evidence following the trial. The trial court denied this motion. This is a matter within the trial court’s discretion. Absent a showing of an abuse of that discretion, we will, not consider this question and here petitioner has failed to prove such abuse.

We reject petitioner’s assertion that respondent’s act of giving the CD to decedent’s daughter following decedent’s death transferred the right of payment. The CD in question is not an instrument payable to the bearer, and the Uniform Commercial Code is not applicable to this question. (Ill. Rev. Stat. 1989, ch. 26, par. 3—104(1).) Moreover, we do not follow petitioner’s argument regarding “alternate payees.” Both decedent’s and respondent’s names were listed on the account holding the CD. When the trial court determined that there was insufficient compliance with the requirements under the Act with regard to survivorship and that a gift of the entire CD account was not proved, the only alternative left was to find a tenancy in common under the statute.

Finally, petitioner has waived his right to appeal any decision regarding trial court procedure here. Petitioner argues that the trial court erred in allowing respondent to testify first, but fails to allege any prejudice as a result. The parties agreed that respondent had the burden of proving a joint tenancy with rights of survivor-ship existed because the trial court had previously determined, on a motion for summary judgment, that a genuine issue of fact existed regarding this issue.

Accordingly, because we find that respondent Mary Carden is entitled to the entire $50,000 CD, the judgment of the circuit court is reversed.

Reversed.

RIZZI, J., concurs.

PRESIDING JUSTICE TULLY,

concurring in part and dissenting in part:

Although I concur in the majority’s decision to reverse the judgment of the trial court in this cause, I must respectfully dissent from that portion of the majority’s opinion which finds that respondent did not present sufficient evidence to prove that she held an interest in the CD as a joint tenant pursuant to the Joint Tenancy Act (hereinafter the Act) (Ill. Rev. Stat. 1985, ch. 76, par. 1 et seq.). I believe that there was more than adequate evidence presented to establish that the CD was held in a joint tenancy.

Section 2 of the Act provides, in pertinent part, the following:

“§2. Except as to executors and trustees, and except also where by will or other instrument in writing expressing an intention to create a joint tenancy in personal property with the right of survivorship, the right or incident of survivorship as between joint tenants or owners of personal property is hereby abolished, and all such joint tenancies or ownerships shall, to all intents and purposes, be deemed tenancies in common; provided, that the foregoing shall not be deemed to impair or affect the rights, privileges and immunities, as set forth in the following provisos, (a), (b), (c), (d) and (e):
(a) When a deposit in any bank or trust company transacting business in this State has been made or shall hereafter be made in the names of two or more persons payable to them when the account is opened or thereafter, such deposit or any part thereof or any interest or dividend thereon may be paid to any one of said persons whether the other or others be living or not, and when an agreement permitting such payment is signed by all said persons at the time the account is opened or thereafter the receipt or acquittance of the person so paid shall be valid and sufficient discharge from all parties to the bank for any payments so made.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 76, par. 2.)

Accordingly, the Act has been construed to require a signed agreement stating that the property is held in a joint tenancy subject to rights of survivorship. However, the existence of such an agreement can be demonstrated by evidence other than a signature card. It is appropriate for a court to consider the circumstances surrounding the creation of the account and events occurring afterwards. The factors relevant to such a consideration include the exercise of authority and control over the account and the survivor’s understanding of the account. In re Estate of Regelbrugge (1992), 225 Ill. App. 3d 593, 596-97, 588 N.E.2d 351.

In Regelbrugge, the administrator of the decedent’s estate initiated a citation proceeding on behalf of the estate to recover the proceeds of three bank accounts which passed by survivorship to decedent’s sister and former wife, the respondents. The trial court entered judgment in favor of the estate with regard to one of the accounts. One respondent appealed from the portion of the trial court’s judgment finding the third account to be property of the estate.

The estate contended that because the original signature card bearing the respondent’s signature was not produced, the respondent failed to prove that a joint tenancy came into existence. In rejecting this contention and reversing the trial court, the Regelbrugge court focused on the fact that the respondent, whose signature was missing, testified that she had signed a signature card for the account and that both she and the decedent kept a savings book for the account. The respondent also testified that while she only made deposits to the account during the decedent’s lifetime, she understood that she was also able to make withdrawals. Additionally, the savings books admitted into evidence contained the names of both the decedent and the respondent. Finally, the testimony of both the respondent and a bank employee was corroborated by bank records indicating that the bank had sent the respondent statements for the account.

The uncontroverted facts in the case at hand more clearly demonstrate that decedent and respondent established a joint tenancy with right of survivorship account at the First State Bank and Trust Company of Park Ridge than those of Regelbrugge. Here, unlike in Regelbrugge, there was physical evidence of the fact that decedent and respondent both contemporaneously signed a buff-colored signature card which contained the requisite joint tenancy agreement. The buff-colored cards were used by the bank for no purpose other than to create a joint tenancy. The bank employee servicing decedent and respondent realized that decedent and respondent signed a card for a non-interest-bearing checking account (a buff card) when, in fact, the parties wished to open a NOW or interest-bearing checking account. This employee, instead of having the parties sign a blue card for a NOW account, which contained a box to check off in order to create a joint tenancy, simply cut the signature portion off the buff card and pasted it onto the blue NOW account card and checked off the joint tenancy box. The record indicates that this operation, the cutting and pasting of the signed portions of signature cards, was standard procedure at the bank for those customers who wished to change their accounts’ status from non-interest-bearing to interest bearing.

Pursuant to bank policy, the original account opened by a customer would operate as the reference or base account for all subsequent accounts of the same title, i.e., individual accounts, joint tenancy accounts, etc. Thus, by initially opening a joint tenancy NOW account, any subsequent account, such as the CD, was tied to the base account as files of that account and subject to its terms. This fact is further corroborated by respondent’s testimony, which the trial court found “very credible,” that decedent requested the account be established under the same terms as the checking account. Additionally, both of the witnesses from the bank testified that had an account with terms differing from the original NOW account been requested, decedent and respondent would have both been required to execute a new Internal Revenue Service form W-9. No such new form was ever executed. Moreover, the CD references the base account number on its face. I believe all of this evidence clearly evinces an intent of decedent and respondent to create a joint tenancy with a right of survivorship.

Accordingly, I would reverse the circuit court’s judgment on the basis of the existence of the CD as a joint tenancy.


source: Caselaw Access Project

author: JUSTICE GIANNIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD JETER et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—89—1073, 1—89—1238 cons.
    Opinion filed May 14, 1993.

      Michael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Celeste Stewart Stack, Special Assistant State’s Attorney, and Renee Goldfarb and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GIANNIS

delivered the opinion of the court:

Defendants, Gerald Jeter and Anthony Thomas, were each charged with two counts of murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1—(a)(1), 9—1—(a)(2)) in connection with the killing of James Atkins and with two counts of attempt (murder) (Ill. Rev. Stat. 1987, ch. 38, par. 8—4) in connection with the respective shootings of Raymond Spain and Darryl Davis. After separate but simultaneous jury trials, defendant Jeter was convicted of the murder of James Atkins and the attempt (murder) of Raymond Spain. Defendant Thomas was convicted of the murder of James Atkins and the attempt (murder) of Raymond Spain and Darryl Davis. The trial court subsequently vacated defendant Jeter’s murder conviction and sentenced him to a 30-year penitentiary term on the attempt (murder) conviction. Defendant Thomas was sentenced to consecutive penitentiary terms of 40 years for his murder conviction and 20-year terms for each of his attempt (murder) convictions (a total term of 80 years).

Defendants raise the following issues for review: (1) whether the jury instructions given for attempt (murder) were improper; (2) whether the State proved that defendants had the specific intent required to convict for attempt (murder); (3) whether closing arguments made by the prosecution in defendant Jeter’s trial require reversal; (4) whether the trial court abused its discretion in sentencing defendants by failing to consider rehabilitative potential or by imposing excessive sentences; and (5) whether the trial court abused its discretion in sentencing defendant Thomas to consecutive sentences.

The background of this case involves a gang-related shooting which occurred on April 17, 1987. Evidence indicated that defendants, then members of the Black Gangster Disciples, began shooting into a group of eight people as they exited an elevator in the lobby of a Chicago housing project. Three of the victims’ group were United States military personnel visiting Chicago on a four-day leave. One person in the group, an army soldier, died from his injuries; two others were seriously wounded. At the time of the offense, defendant Jeter was 16 years old; defendant Thomas was 15.

Defendants were tried separately but simultaneously to separate juries. The only evidence not heard by both juries was testimony concerning statements given to police.

As part of the State’s case against defendant Thomas, police detective Szudarski testified as to a statement given by defendant Thomas shortly after he had been taken into custody. In this statement Thomas related that on the night of the shooting he was with other members of the Black Gangster Disciples street gang at the scene of the shooting. He further stated that he owned a .32 caliber revolver which he was carrying in his pocket. At approximately 12:30 a.m. he saw a group of people enter the building. Included in the group was a man known as “Rink” whom Thomas knew to be a Dell Viking street gang member. After watching Rink enter the elevator, Thomas told other members of his group that if Rink came down and started trouble, Thomas would shoot him. Approximately an hour later, when the victims’ group returned to the lobby, Thomas removed his gun from his pocket and, after hearing gunshots, opened fire into the group of people. Detective Szudarski also testified that, after shooting into Rink’s group, Thomas admitted going to a nearby building and dropping his gun down a garbage chute. This testimony was corroborated by youth officer Mohrs.

Defendant Thomas testified on his own behalf. He stated that he was at the scene of the shooting that evening because he wanted to go to a party. He denied having a gun and indicated that he had ended his affiliation with the Black Gangster Disciples in 1986. While he admitted making a statement to police, he denied its truthfulness and indicated that he made the statement only because he was scared the police would beat him up.

As part of the State’s case against defendant Jeter, youth officer Mohrs testified as to a statement given by Jeter while in custody. According to Mohrs, Jeter admitted that he was a member of the Black Gangster Disciples and that he had met six other members at the scene of the shooting on April 17, 1987. Jeter then told Mohrs that one of the group, Anthony Williams, indicated that he had seen a group of people entering the building and that three of these people were Dell Vikings. Williams then gave Jeter a .32 caliber gun and told him to wait for the group to come back down. Jeter also stated that after the victims’ group returned to the first floor and opened fire, he returned two shots, gave the gun back to Williams and ran. Officer Leighton corroborated this testimony. Jeter did not testify on his own behalf. In closing, his attorney admitted that Jeter had been at the scene and had shot twice, but argued self-defense.

Testimony of witnesses established that initial gunshots were fired at the group from inside the building as they walked away from the building elevator. As the group ran from the building, subsequent shots were fired from outside. Testimony indicated that as many as 30 shots were fired during the attack. Two of the victims were shot from behind, a third in the chest. Defendant Thomas was identified by several witnesses as having fired a gun into the group from inside the building.

Defendants first argue that the trial court erroneously instructed the juries that they could find defendants guilty of attempt (murder) without finding that they had the specific intent to kill Darryl Davis and Raymond Spain. The supreme court has held that a finding of specific intent to kill is required- for conviction of attempt (murder). People v. Jones (1979), 81 Ill. 2d 1; People v. Harris (1978), 72 Ill. 2d 16.

The trial court gave the following instruction for attempt (murder) to the Jeter jury:

“A person commits the offense of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder.
The offense attempted need not have been committed.” (Illinois Pattern Jury Instructions, Criminal, No. 6.05 (2d ed. 1981) (hereinafter IPI Criminal 2d).)

After giving this instruction the trial court also instructed the jury:

“To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant, or one for whose conduct he is legally responsible, performed an act which constituted a substantial step toward the commission of the offense of attempt murder against [Raymond Spain/Darryl Davis]; and
Second: That the defendant, or one for whose conduct he is legally responsible, did so, with intent to commit the offense of murder against [Raymond Spain/Darryl Davis]; and
Third: That the defendant, or one for whose conduct he is legally responsible, was not justified in using the force which he used.”

(See IPI Criminal 2d No. 6.07.) With regard to the charge of murder, the trial court instructed:

“A person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which cause death,
he intends to kill or do great bodily harm to that individual or another; or
he knows that such acts will cause death to that individual or another; or
he knows that such acts create a strong probability of death or great bodily harm to that individual or another;
and the person was not justified in using the force which he used and did not act under an unreasonable belief that circumstances existed which would have justified the killing.”

(See IPI Criminal 2d No. 7.01.) The trial court instructed the Thomas jury in a similar manner, absent the justification language.

It is well settled that these instructions are erroneous because they do not unambiguously reflect the fact that attempt (murder) requires a specific intent to kill. Instead, when the murder and attempt (murder) instructions are used together, they improperly leave open the possibility that a conviction could be based solely upon a showing that the defendants intended only to do great bodily harm or that defendants acted with mere knowledge that their acts would create a strong probability of death or great bodily harm. Despite the large number of reported cases which discuss this problem, these instructions continue to be used by our trial courts. (See, e.g., People v. Jones (1979), 81 Ill. 2d 1; People v. Harris (1978), 72 Ill. 2d 16; People v. Trinkle (1977), 68 Ill. 2d 198; People v. Carvajal (1993), 241 Ill. App. 3d 886; People v. Mendez (1991), 221 Ill. App. 3d 868; People v. Deason (1991), 223 Ill. App. 3d 320; People v. Velasco (1989), 184 Ill. App. 3d 618; People v. Fields (1988), 170 Ill. App. 3d 1; People v. Page (1987), 163 Ill. App. 3d 959; People v. Lincoln (1987), 157 Ill. App. 3d 700; People v. Cloyd (1987), 152 Ill. App. 3d 50; People v. Jaffe (1986), 145 Ill. App. 3d 840; People v. Kraft (1985), 133 Ill. App. 3d 294; People v. Smith (1984), 127 Ill. App. 3d 622; People v. McDaniel (1984), 125 Ill. App. 3d 694.) Where a defendant’s intent to kill is not at issue or is blatantly evident, however, such instructions, though error, have been held to be harmless. See, e.g., Jones, 81 Ill. 2d at 9; Carvajal, 241 Ill. App. 3d at 891; Velasco, 184 Ill. App. 3d at 633-34; Page, 163 Ill. App. 3d at 972; Cloyd, 152 Ill. App. 3d at 54-55; Smith, 127 Ill. App. 3d at 634.

Initially, the State claims that this issue has been waived by the failure of both defendants to tender appropriate instructions to the trial court and by their failure to include this issue in their post-trial motions. (People v. Solis (1991), 216 Ill. App. 3d 11.) Indeed, in defendant Jeter’s case it was Jeter’s own attorney who tendered the instructions which he now seeks to challenge. Defendants respond by arguing plain error (134 Ill. 2d R. 615(a)). As the State contends, however, the waiver question need not be addressed as the error was harmless.

An instructional error may be found to be harmless when it is clear beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. (People v. Olinger (1986), 112 Ill. 2d 324.) The evidence in this case overwhelmingly indicated that both defendants associated with the Black Gangster Disciples street gang and that they participated in an ambush shooting of a group of people whom they believed to be connected with an opposing gang. Defendant Thomas fired from inside the building’s lobby; defendant Jeter fired from outside of the building as the victims attempted to run to safety.

The evidence was uncontroverted that defendant Jeter accepted a gun from an acquaintance at the scene of the crime which he used to shoot twice toward the victims’ group. While Jeter claimed self-defense, his decision to remain in the project building and wait for the victims’ group is inconsistent with such a claim. In addition, none of the evidence presented at trial substantiated his claim that the victims’ group was armed. Indeed, two of the victims were shot in the back. Similarly, defendant Thomas first admitted threatening to shoot Rink, a member of the victims’ group, as well as participating in the attack. While Thomas denied at trial the truth of his in-custody confession, he was identified by several witnesses as one of the group who fired into the crowd.

One who fires a gun toward another with malice or with total disregard of human life may be convicted of attempt (murder). (People v. Carvajal (1993), 241 Ill. App. 3d 886; People v. Mendez (1991), 221 Ill. App. 3d 868; People v. Smith (1984), 127 Ill. App. 3d 622.) Here, the required specific intent to kill may be inferred from the evidence which showed defendants believed members of a rival gang were in the building, that they and several others armed themselves with deadly weapons, waited for the victims to emerge from the elevator, fired into the victims’ group and then fled. Defendants’ attempt to characterize this slaughter as a “random shooting incident” lacks candor. While the instructions read to the jury in this case should have indicated to the jury that it may not convict of attempt (murder) absent proof of a specific intent to kill, the lack of such an instruction under such facts amounts to harmless error. People v. Carvajal (1993), 241 Ill. App. 3d 886; People v. Mendez (1991), 221 Ill. App. 3d 868; People v. Smith (1984), 127 Ill. App. 3d 622.

Defendants also argue that the State failed to offer evidence sufficient for the jury to conclude beyond a reasonable doubt that they acted with the requisite specific intent. (See People v. Koshiol (1970), 45 Ill. 2d 562.) In considering such claims, however, all evidence is considered in the light most favorable to the prosecution. (People v. Schorle (1990), 206 Ill. App. 3d 748.) As is evident from the above discussion, the jury in this case had more than sufficient evidence to conclude that defendants had the specific intent to kill their victims. Defendants’ arguments are therefore without merit.

Defendant Jeter next contends that he was denied a fair trial when the State argued facts not in evidence. Specifically, he contends that comments made concerning where he was positioned during the shooting were not based on the evidence and unfairly undermined his claim of self-defense.

It is uncontested that Jeter was waiting for the victims when they exited the elevator as this evidence was in Jeter’s statement which he adopted at trial in support of his claim of self-defense. Also evidenced by his own statement, Jeter was positioned near a “hallway” into which the victims ran in an attempt to escape gunfire. Witnesses from the victims’ group testified that their assailants were positioned in the hallway and outside the building. One described the area as a breezeway and another related that when a person leaves the building he or she remains underneath the building as it hangs over a sidewalk area. Significantly, one of the witnesses stated that an unidentified member of Jeter’s group shot at him from behind some poles.

This evidence prompted the prosecutor to make the following comments during closing:

“MR. SABATINI [Assistant State’s Attorney]: And ladies and gentlemen, I submit to you that it was at this point that Anthony Williams, a leader of the Disciples, planned this assassination.
You can see this in defendant’s statement. You could see this because at this point Anthony Williams, the leader of the Disciples, took a .32 caliber revolver and handed it to this guy right here, the defendant Gerald Jeter. And then he positioned the defendant. Now, though the defendant does not specifically say where he was positioned. Well, we could reasonably infer he was one of the persons—
MR. THOMAS [Defendant’s counsel]: I’ll object to that he was positioned anywhere.
THE COURT: Overruled.
MR. SABATINI: He was one of the persons that was positioned outside the door behind the pillars.
After all, you heard the testimony of the surviving witnesses from that elevator and they told you who was shooting from behind them, that being Anthony Thomas and Lavanco Parsons.
So the defendant was among these [sic] group of people who were behind the pillars.
MR. THOMAS: Object to that, Judge. There is no evidence he was behind a pillar.
THE COURT: Overruled.
MR. SABATINI: Immediately outside the door and he was one of these persons that was firing back at the people after they came out of the building.
* * *
MR. SABATINI: Now, ladies and gentlemen, just because this guy says that [he fired in self-defense] doesn’t make it so. You are to look at that portion of his statement in light of all the evidence. In light of what the surviving witnesses told you from the witness stand.
Where is the self-defense? Who could have been shooting at this guy? He was secreted out there behind a pillar.
As a matter of fact—
MR. THOMAS: Objection judge, that’s not the evidence.
THE COURT: Overruled.
MR. SABATINI: As a matter of fact, the surviving witnesses told you the persons firing upon them from behind the pillar, they couldn’t even see who they were.” (Emphasis added.)

A prosecutor’s comments cannot be labelled improper if those comments are based upon facts in the record or are reasonable inferences drawn from those facts. (People v. Bryant (1983), 94 Ill. 2d 514.) Conversely, it is improper for a prosecutor to argue facts which are not based on the evidence. (People v. Monroe (1977), 66 Ill. 2d 317; People v. Johnson (1987), 119 Ill. 2d 119.) As the emphasized portion of the above argument makes clear, the prosecutor in this case did not mischaracterize the evidence, but rather, argued that Jeter’s location during the assault could be reasonably inferred from the evidence presented. Indeed, the prosecution specifically reminded the jury that Jeter’s statement to the police did not indicate where he was standing during the attack and that no one had specifically identified Jeter as standing behind a pillar as he shot. While defendant now argues that it is not a reasonable inference to conclude that defendant stood behind pillars as he shot, it is clear that there was sufficient evidence on this point for the State to make such an argument, particularly in the frank manner in which the prosecution presented its theory. The cases cited by defendant Jeter in which the prosecution was found to have deliberately inflamed the jury are inapposite. Cf People v. Nightengale (1988), 168 Ill. App. 3d 968; People v. Fletcher (1987), 156 Ill. App. 3d 405; People v. Young (1975), 33 Ill. App. 3d 443.

Defendants next argue that the trial court abused its discretion in sentencing defendants. Defendant Thomas was convicted of one count of murder and two counts of attempt (murder). Defendant Jeter was convicted of one count of attempt (murder) after the trial court refused to enter judgment on the jury’s murder conviction. A sentencing hearing was held prior to which the State supplemented defendant Thomas’ presentence report to reflect a juvenile conviction for unlawful use of a weapon in September of 1986, for which Thomas received probation. The report was also supplemented with Thomas’ juvenile felony conviction for burglary. The State then argued the facts of the case against defendant Thomas.

As to defendant Jeter, the State called a Chicago police officer to testify that on October 1, 1988, while Jeter was on bond for murder, Jeter was arrested for possessing a handgun after the officer had heard gunshots and had seen Jeter walking with a group of teenagers. The officer recovered a .357-revolver near where Jeter was standing as well as empty casings. The gun had been stolen. Also in Jeter’s sentencing hearing it was brought out that he had two juvenile convictions, one for battery in 1987 and one for unlawful use of weapons in 1986.

Defendant Thomas called Reverend Gordon McLean, who testified that Thomas was a positive influence on other young men who were in Reverend McLean’s counseling group for incarcerated youths. He testified that he felt Thomas had rehabilitative potential and that Thomas had expressed a desire to “move his life in a positive direction, to take advantage of what time he has to serve to get his education, to support his family and hopefully come out and be a good citizen.” Defendant Thomas’ attorney pointed out that Thomas was aware that he must be punished and spoke about the possibility of rehabilitation.

Defendant Jeter’s attorney stressed his client’s young age and the fact that Jeter turned himself in to police on the night of the shooting.

Just prior to sentencing defendants, the trial judge stated:

“First, I think it ought to be noted for the record that there has been references made by the attorneys, both the prosecution and for the defense, concerning punishment re-fleeting the possibility of rehabilitation. And I think it ought to be clear in everyone’s mind that it is the Court’s judgment that a penal institution is not a place where rehabilitation takes place.
A penal institution is a place where people who have been convicted of crimes are sent in execution of their sentence.
Early on it was considered that rehabilitative programs would take place during the incarceration period. But the Court is not aware of any American penal institution that lives up to the responsibility of having programs that cause people in their custody to change their ways, and come in convicted felons and go out as people who are not going to commit any further crimes.
Any rehabilitation that takes place under the circumstances in the American institutions comes about only as a result of the individual inmates affirming that after execution of that sentence that inmate is not going to be involved in any other anti-social or illegal activity. There is no rehabilitation *** program that exists that is worthy of being named such in any of our penal institutions in the Court’s judgment.
Accordingly], I sentence these gentlemen today and it is not just them, but that has been my posture since I adopted this attitude, I will be sentencing purely on the basis of punishment. The sentence that I will impose will be punishment for the crimes that these men have been convicted of. And if rehabilitation takes place, fine.
Sit down.
It will be for punishment only.”

In considering the propriety of punishment, a reviewing court must give great weight to the judgment of the trial court. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93; People v. Perruquet (1977), 68 Ill. 2d 149, 154; People v. Bergman (1984), 121 Ill. App. 3d 100, 110.) The imposition of a sentence is a matter of judicial discretion and, absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. (Perruquet, 68 Ill. 2d at 153.) Additionally, it is obvious that the trial judge is in a better position to determine proper punishment than is a court of review. Perruquet, 68 Ill. 2d at 154; People v. Butler (1976), 64 Ill. 2d 485, 490.

It is settled law, however, that a reasoned judgment as to a proper sentence must be based upon the particular facts and circumstances of each individual case. (Perruquet, 68 Ill. 2d at 154; People v. Bolyard (1975), 61 Ill. 2d 583, 589.) Such a judgment depends upon many factors, including the gravity of the offense and the circumstances of commission, the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, age, and criminal history. (Perruquet, 68 Ill. 2d at 154; People v. Duncan (1981), 97 Ill. App. 3d 896, 899.) The sentencing judge is charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender. (People v. Cox (1980), 82 Ill. 2d 268, 280; Bergman, 121 Ill. App. 3d at 109.) Thus, trial judges are compelled to consider each defendant’s individual rehabilitative potential. Indeed, our own constitution requires that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) While this is not to say that the objective of restoring the offender to useful citizenship is to be accorded greater consideration than that which establishes the seriousness of the offense (People v. Waud (1977), 69 Ill. 2d 588, 596; Bergman, 121 Ill. App. 3d at 109), such concerns must be considered on a case-by-case basis.

Section 5 — 4 — 1 of the Unified Code of Corrections provides that in sentencing a defendant the court consider the evidence received at trial; consider any presentence reports; consider evidence in and information offered by the parties in aggravation and mitigation; hear argument as to sentencing alternatives; and afford the defendant the opportunity to make a statement in his own behalf. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—4—1(a).) In addition, this section directs the trial court to specify on the record the particular evidence, information, factors in mitigation and aggravation or other reason that led to his sentencing determination. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—4—

Our review of the record indicates that the trial court did not carefully weigh the evidence presented at defendants’ sentencing hearing, but instead, sentenced defendants “for punishment only” based upon personal beliefs about the state of our prison system. The fact that the trial court failed to articulate the fact that it had considered the statutory factors before sentencing defendants supports this conclusion. We therefore vacate defendants’ sentences and remand their cause for a new sentencing hearing in which the appropriate factors may be carefully considered.

Finally, because we vacate defendants’ sentences, the questions of whether they are excessive or whether the consecutive sentences imposed upon defendant Thomas should run concurrently are moot. We note for the trial court on remand, however, that the supreme court has held that consecutive sentences should be imposed sparingly. (People v. O’Neal (1988), 125 Ill. 2d 291.) We also point out that section 5 — 8 — 4(b) of the Unified Code of Corrections, as in effect at the time of defendants’ offense, stated:

“The court shall not impose a consecutive sentence *** unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-4(b).)

While the supreme court has held that the above provision does not require the trial court to recite the language of the statute before imposing consecutive sentences (O’Neal, 125 Ill. 2d 291; People v. Pittman (1982), 93 Ill. 2d 169), the better practice is for the trial court to expressly find that consecutive sentences are necessary for the protection of the public. O’Neal, 125 Ill. 2d at 299; Pittman, 93 Ill. 2d at 178.

Accordingly, for the reasons expressed above, defendants’ convictions are affirmed. However, because we find the trial court abused its discretion in the manner in which it sentenced defendants, we remand for a new sentencing hearing consistent with this opinion.

Affirmed in part; vacated in part and remanded.

McNAMARA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON GRAY, Defendant-Appellant.
    First District (6th Division)
    Nos. 1—88—3606, 1—89—0889 cons.
    Opinion filed May 14, 1993.

      Randolph N. Stone, Public Defender, of Chicago (Mark Floyd Pasterski, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall Roberts, and Howard D. Weisman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Jason Gray, and Manuel Bobe were indicted for the first degree murder of three persons. The cases of Bobe and the defendant were severed. The defendant was convicted of first degree murder and sentenced to life imprisonment without parole on each murder, each term to run concurrently. Bobe was subsequently convicted of first degree murder and sentenced to three concurrent terms of natural life imprisonment. We affirmed Bobe’s conviction and sentence. People v. Bobe (1992), 227 Ill. App. 3d 681, 592 N.E.2d 301.

After the judge denied the defendant’s motion for a new trial, the defendant filed a supplemental motion for a new trial based on newly discovered evidence. The judge first granted the motion but later granted the State’s motion to reconsider and denied the supplemental motion for a new trial.

After his conviction and sentence, the defendant filed a petition for post-judgment relief pursuant to section 2 — 1401 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401.) The trial judge denied the petition. In his direct appeal, the defendant contends that he was denied effective assistance of counsel. In his post-judgment petition, the defendant contends that the State obtained his conviction by the use of perjured testimony. The direct appeal and the appeal of the denial of the post-judgment petition have been consolidated by this court. The defendant does not challenge the sufficiency of the evidence, the denial of his motions to suppress his statement or his identification or the denial of his supplemental motion for a new trial.

On the night of November 7, 1986, a group of teenagers were gathered for a party in a basement at 6318 South Washtenaw in Chicago. Shortly after midnight, there was a knock at the basement door. When Jessie Villagomez partially opened the door, an intruder pushed on the door and fired several shots into the party and fled. The shots struck four teenagers, killing three of them: Michael Villasenor, Joe Torres, and Mario Martinez. Jose Mendez was shot in the chest but survived. The evidence later established that Michael Villasenor and Joe Torres were members of the Two-Two Boys street gang. The defendant and Bobe were members of the Two-Six gang. The gangs were rivals.

Joanne (Holly) McGuire, who was 13 years old at the time of the shooting, testified that she attended the party at 6318 South Washtenaw. McGuire lived next door. At around 12:15 a.m., McGuire came back into the basement, which she described as being brightly lighted. She heard a knock on the back door which caused her to turn and look at the back door. She was standing approximately eight feet from the back door when she saw Jessie Villagomez partially open the back door. The door was pushed from behind and was flung open. As the door rebounded, she saw “flashes of guns” and heard shots. In the doorway, she saw the defendant’s face. Her view of the defendant was unobstructed. She had known the defendant, a 15 year old at the time, from Marquette elementary school. She had known him for two years and knew he was a member of the Two-Six gang. She saw a silver-colored gun being held by the defendant with both hands. She saw him shoot Mike Villasenor, who then staggered and fell. She heard a total of six shots. After Villasenor was shot, she crouched on the floor. About 15 seconds later, she got up and saw three bodies lying on the floor.

When interviewed that night by the police, because she was “scared” of the defendant, McGuire initially told the police that she did not see anything happen. After speaking with a friend that same night, she told the police that she saw Jason “Ace” Gray shoot into the party. She later identified the defendant in a lineup composed of nine Hispanics and one white boy. The defendant was the white boy; he had blond hair. She denied having anything alcoholic to drink that night.

Sam Rahder testified that he was a member of the Two-Two Boys street gang. On November 7, 1986, Rahder picked up three fellow Two-Two gang members, Jessie Alvarez, Joe Torres and Michael Villasenor. After stopping at a party at 63rd and Rockwell, Rahder and the others went to the party at 63rd and Washtenaw. After about an hour, Rahder and Alvarez left the party to pick up Alvarez’s friends in Cicero. On their way, they stopped at a 7-11 store to buy cigarettes. When they pulled into the parking lot, they saw a blond white boy and a Mexican boy beating up two other boys. As Rahder and Alvarez got out of the car, the blond boy, identified by Rahder as the defendant, and the Mexican boy got into a green Eldorado. After buying cigarettes, Rahder and Alvarez left the 7-11, drove a short distance and then noticed the green Eldorado pull alongside them. The defendant was seated in the back seat behind the driver. The defendant and the other boy were displaying the Two-Six gang signal to Rahder. The defendant and the Mexican boy also threw bottles at Rahder’s car. Alvarez and Rahder responded with Two-Two hand signals and then sped past the defendant, heading toward Cicero.

After picking up their two friends in Cicero, Alvarez and Rahder returned to the party at 63rd and Washtenaw. While they were stopped at a stop sign, the green Eldorado again pulled up beside them. The Mexican boy and the defendant jumped out of the Eldorado. Rahder and his three passengers jumped out of their car. The defendant and the Mexican boy retreated to the green Eldorado and sped away. Rahder and his fellow Two-Two gang members followed the Eldorado but turned around after Rahder realized they were in the heart of Two-Six territory.

Upon arriving at the party, Rahder and the others entered the basement through the back door. Rahder recognized fellow Two-Two gang members and Ambrose gang members at the party. At the time the Two-Two gang and Ambrose gang were allied. Rahder was at the party when the shots were fired, but he did not see who had fired the shots.

Sylvia Onoroto testified that her mother dropped her off at the party about 7:15 p.m. Once inside the house, she went to the front window to see if her mother had gone. She saw a green Eldorado driving very slowly as it passed the house. The Eldorado circled the block four times, passing slowly by the house each time. When she noticed her mother had gone, she joined the party in the basement. Before the shooting occurred, two girls whom Onoroto did not know came through the back basement door into the party. Both girls were wearing identical black and beige jackets; black and beige represented the colors of the Two-Six gang. The girls walked around the party but did not speak to anyone. After walking around the party, the two girls left.

Detective Michael Kill, a member of the Area 3 Violent Crimes Unit, testified that he spoke to the defendant at 12:10 a.m. on November 9, 1986. After Kill read the defendant his rights, Kill asked the defendant whether he had a nine-millimeter automatic. The defendant told Kill that he did not have a nine-millimeter automatic but had a .380 automatic. The defendant said that he had gotten the .380 automatic earlier in the day, but he did not know where it was at the time. Kill also asked the defendant who was at the party where the shooting occurred. The defendant said that he was at the party but that he did not have anything to do with the shooting. The conversation lasted 15 minutes, during which the defendant was responsive, alert and giving “a perfect reaction.” Kill did not write the statement down or make a summary of the conversation in any police report. He was not assigned to the investigation at the time he spoke to the defendant.

Sergeant Vincent Lomoro, an evidence technician with the Chicago police crime detection laboratory, testified that five bullets were recovered from the victims’ bodies and five cartridges were recovered at the scene of the shooting. The bullets and cartridges were the type designated for a .380 automatic. All bullets and cartridges were from the same gun.

Jose Mendez, a Two-Two gang member, testified for the defense that he was at the party and left to go to a restaurant. When he came back to the party, he saw four male teenage Latinos, whom he did not know, walking away from the party. When the shooting began, Mendez saw that the basement door was open; he also saw flashes. Mendez was standing near the three victims, his friends, when the shots were fired; he was shot in the chest. He could not identify who was in the doorway because he was not looking at the door when the shots were fired.

Jessie Villagomez, an Ambrose gang member, testified for the defense that immediately before the shooting two girls knocked at the door. Those at the party did not want to let the girls in because they were from another street gang. He did not let them in. After these two girls left, Villagomez answered another knock and opened the door. He opened the door about six inches and saw only a gun and a hand in the doorway. He did not see who did the shooting. On cross-examination, without objection, he explained the meaning of the Two-Six gang tattoo: the three dots symbolized rape, robbery and murder. He also said that he “met or ran into” the defendant outside the party and then he went back to the party. (Villagomez’s testimony about meeting the defendant is the focal point of the post-judgment motion.)

Detective John Koclanis testified that he supervised a lineup of nine Hispanics and the defendant, the only white boy. The lineup was viewed by Joanne McGuire, Jessie Alvarez and Noel Gonzalez. Only McGuire identified the defendant from the lineup. Koclanis made out a report that did not refer to Detective Kill’s interview with the defendant, although Kill did speak to Koclanis in the early hours of November 9 about Kill’s conversation with the defendant. Kill was named on the report as a participating officer.

The defendant testified that he did not shoot anyone, did not possess a gun and was not at the party on November 8. He was at Yvonne Burgos’ house at 5454 South Albany at 12:30 a.m., babysitting a one-year-old child of Darlene Subasik, his friend. At 12:30 a.m., he was alone in the house with the baby. Between 11 p.m. and 11:30 p.m., the defendant left the house to drop off two friends that were with him at Yvonne’s apartment. On the way back to Yvonne’s apartment, he drove by the party at 63rd and Washtenaw but did not stop there. He denied that the incident to which Sam Rahder had testified ever occurred; he did not know Sam Rahder. He did know Jesse Villagomez, whose cousin had two children with the defendant’s sister. He denied meeting Villagomez on the night of the shooting.

He testified that during his interview with Kill, he was" handcuffed to a chair when he told Kill that he was babysitting “at Yvonne’s house.” Kill used both hands to grab the defendant by the collar of his shirt and to throw him to the ground. Kill came in a second time during which the defendant told him that he had driven by 63rd and Washtenaw in the evening but before the murders occurred. Kill was the first officer to whom he told this. He said, “Officer Kill scared me, so I decided to tell the truth.” He testified that in his initial interview he told the police that from 4 p.m. through the entire evening of the shooting, he was at 5454 South Albany and had never left that address. He admitted that statement was a lie. He also initially told the police that he had watched movies with Darlene and Miquel that evening. He admitted that statement was also a lie. He denied that he told Kill he had a .380 automatic. He also denied that the tattoo dots stood for anything.

The defendant also said that he had told the police he had seen a bunch of people at a party and that he recognized them as being members of the Ambrose street gang. He admitted that he signed the statement he made to Assistant State’s Attorney Bilyk in which he said that he had been treated well by the police and had not been threatened or made any promises. He did not complain to Bilyk about being mistreated by anybody. He was a member of the Two-Six gang on the day of the shooting. He did not find out about the three deaths until 10:30 a.m. on November 8, when Edwin Cabrero came to his house and told him that the police were looking for him.

Darlene Subasik testified that she left her son and the defendant at her home at about midnight while the defendant watched television. She returned about 30 to 45 minutes later, and the defendant spent the night. The defendant lived with his mother on 18th Street.

Officer Kill testified in rebuttal that he had not mistreated the defendant.

The defendant’s entire direct appeal is based on several instances of alleged ineffective assistance of counsel. He first alleges that his attorney was ineffective for failing to call Jesse Alvarez as a witness.

In the opening statement, the defendant’s attorney told the jury that Alvarez was in the basement at the time of the shooting, that Alvarez saw four Latinos in the doorway and that Alvarez did not see the defendant in the doorway. Alvarez was subpoenaed by the defendant’s attorneys but refused to speak to them. The defendant’s attorneys wanted to establish only that Alvarez refused to speak to them, but the judge would not permit them to restrict the examination of Alvarez to that single point. One of the defendant’s attorneys said that she would call Alvarez as a witness anyway. The assistant State’s Attorney then told the judge and the defendant’s attorneys that there was “a chance that [Alvarez] might identify the defendant as being at the party or around the party at the time of the shooting or subsequent to it.” The defendant’s attorney said that, under the circumstances, she would not call Alvarez but asked that the State also be prevented from calling him. The assistant State’s Attorney agreed that the State would not call Alvarez either. The defendant now maintains that his counsel was ineffective for failure to call Alvarez. We disagree.

Whether to call a particular witness generally is a matter of trial strategy. (People v. Ashford (1988), 121 Ill. 2d 55, 520 N.E.2d 332.) Before a conviction may be reversed for ineffective assistance of counsel, a defendant must meet his burden of showing that his counsel’s performance was so deficient that it fell below an objective standard of reasonableness and that his counsel’s performance so prejudiced his defense as to deny him a fair trial. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) A defendant must overcome the strong presumption that the challenged actions of his attorney might be considered sound trial strategy. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Therefore, the burden on the defendant in this court is to show that Alvarez would have testified in a way favorable to the defendant. He has not done so. Based on the record before us, we are unable to determine what Alvarez’s testimony would have been. We note that when he testified later in Bobe, he identified the defendant as the person who fired the shots, and he also corroborated the testimony of Rahder as to the previous encounters with the defendant. See Bobe, 227 Ill. App. 3d at 686.

It is true that, if Alvarez testified in the same manner he testified against Bobe later, he would have been impeached, as he was in Bobe, by showing that he named four Latinos as persons he saw in the doorway, that he did not tell the police he saw a blond white boy in the doorway and that he did not tell the police of his earlier encounters with the defendant that evening. (Bobe, 227 Ill. App. 3d at 686.) In addition, Alvarez would have been impeached by the testimony of the police officers that he failed to identify the defendant in a lineup. Nonetheless, a reasonable argument could be made that, if Alvarez’s testimony against the defendant would have been the same as it was in Bobe, Alvarez’s testimony would have been highly damaging to the defendant. Consequently, it cannot be said that the defendant’s attorneys were ineffective by failing to call Alvarez. Certainly it can be said that the defendant has failed to maintain his burden of overcoming the strong presumption that the challenged actions of his attorney might be considered sound trial strategy.

Before leaving this point, we will answer the defendant’s attorney’s claim in oral argument, not in his brief, that the State in closing argument unfairly asked why the defense had not called Alvarez. We have read both sides’ closing arguments. The State’s argument was invited by the defendant’s attorney, who told the jury that the State should have called several other witnesses, including Alvarez, and asked the State to explain why they were not called.

The defendant next contends his attorneys were ineffective by failing to “prevent” the testimony of Detective Kill. The defendant made a motion to suppress all statements on the ground that juvenile standards were not followed and, therefore, the statement was a product of coercion. The judge denied the motion to suppress. Later, the State filed a supplemental discovery answer in which it informed the defendant of the statement made to Kill. The defendant filed a motion in limine to exclude Kill’s testimony. The judge denied the motion. We construe the defendant’s argument to be that the ineffective assistance of counsel lay in the fact that his attorneys waited until August 1988 to make the motion to exclude Kill’s testimony even though they learned on November 5, 1987, that Kill was prepared to testify that the defendant had made a statement to him. Once again, we must invoke the rule of Albanese and Strickland and hold that the defendant has failed to establish that, but for the lapse in time in making the motion to exclude Kill’s testimony, it was reasonably probable that the result of the proceedings would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Albanese, 104 Ill. 2d at 525.

The defendant next contends that an instance of ineffective assistance of counsel occurred during the. cross-examination of Villagomez. The prosecutor asked Villagomez about the meaning of the three dots tattooed on his hand which represented the sign of the Two-Sixers. Villagomez said they represented murder, robbery and rape. No objection was made to Villagomez’s answer. (The forewoman of the jury had been the victim of a rape.) We agree that an objection should have been made, but we do not agree that a new trial should be granted for failure of the defendant’s attorney to object. Under Albanese and Strickland, a defendant must establish “ ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (Albanese, 104 Ill. 2d at 525, quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) We judge that the jury verdict would have been the same even if the defendant’s attorney had objected. Indeed, we judge that the jury verdict would have been the same even if Villagomez had not testified to the meaning of the tattoo marks. We note that the defendant testified that the tattoo marks did not symbolize anything.

In our judgment, the case against the defendant, while not overwhelming, was a strong one. The identification of McGuire, who was not a stranger to the defendant, was corroborated in large measure by Rahder, to some degree by the cross-examination of Villagomez and, most important, by the defendant’s own testimony that he was in the vicinity of 6318 Washtenaw that night. (The defendant did not deny that he knew McGuire.) The defendant admitted lying to the police, which may be considered a reflection of a consciousness of guilt. Officer Kill’s testimony that the defendant told him he owned a .380 automatic and was at the party, if believed, was also damaging to the defendant’s case. In addition, the defendant’s own testimony contradicted his alibi witness, Darlene Subasik, who testified that the defendant did not leave her house. We conclude, therefore, that the failure to object did not constitute ineffective assistance of counsel.

We have considerable difficulty in determining precisely what other conduct on the part of the defendant’s attorneys the defendant now contends is ineffective assistance. We gather that he maintains that his counsel either misunderstood the judge’s ruling about a discovery cut-off date or his counsel motioned for the wrong cut-off date in the first place. He also maintains that his counsel were ineffective because they did not go to trial immediately after the judge ordered a new trial, because the delay in the trial gave the judge a chance to change his mind. Neither contention merits any further discussion other than to say that they do not support a finding of ineffective assistance of counsel.

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

We turn now to the defendant’s appeal of the order denying his petition brought under section 2 — 1401 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401.) The purpose of a section 2—1401 petition is to bring before the court facts which, had they been known at trial, would have prevented the entry of the contested judgment. (People v. Sanchez (1989), 131 Ill. 2d 417, 546 N.E.2d 574.) Although the petition is usually characterized as a civil remedy, its remedial powers extend to criminal cases. Sanchez, 131 Ill. 2d at 420.

The petition must establish adequate grounds for such relief and must show that the petitioner was not negligent in failing to raise the ground at trial. (People v. Jennings (1971), 48 Ill. 2d 295, 269 N.E.2d 474.) The appropriate standard of review is whether the trial judge abused his discretion. Sanchez, 131 Ill. 2d at 420.

In this case, the trial judge dismissed the petition without an evidentiary hearing on the basis that: (1) the trial court did not have jurisdiction and (2) if the trial court had jurisdiction, the allegations in the petition did not sufficiently allege facts which would have entitled the defendant to relief.

On December 6, 1988, the defendant filed a notice of appeal from the judgment of conviction. On January 24, 1989, he filed his section 2 — 1401 petition. The trial judge held that he lacked jurisdiction because of the pendency of the direct appeal. A trial court may hear a section 2 — 1401 petition, despite the pendency of a direct appeal because the petition constitutes a new action. (People v. Alfano (1981), 95 Ill. App. 3d 1026, 420 N.E.2d 1114.) Therefore, a dismissal of this petition on the ground of lack of jurisdiction was not proper.

We will now address the sufficiency of the petition. Where perjury is the basis of a section 2 — 1401 petition, facts must be alleged and proved by clear and convincing evidence which show that false testimony was willfully and purposely given, that it was material and not merely cumulative and that it probably controlled the determination. (People v. Jennings (1971), 48 Ill. 2d 295, 269 N.E.2d 474.) The petition, in substance, alleges that Villagomez committed perjury at the trial. Although, at this stage, there is no dispute between the parties over whether Villagomez committed perjury, our discussion must begin with the specific testimony of which the defendant now complains. Villagomez testified for the defendant that he could not see who did the shooting. He could see only a gun and a hand; he never identified the defendant as the shooter. In response to a question by the defense, Villagomez testified that he had been interviewed by the prosecution two days before he testified. He also testified that he was on probation.

The following examination by the State is the crucial testimony:

“Q. You were not at the party the entire evening, were you?
A. No, I wasn’t.
Q. Isn’t it a fact that you left the party just before or a time before the shots were fired?
A. Yes.
Q. Isn’t it a fact that you met or ran into the defendant, Jason Gray?
A. Yes, I did.
Q. And that was just before it, right?
A. Right.” (Emphasis added.)

On redirect examination the defendant’s attorney established only that Villagomez had been subpoenaed by the defense, that his gang was an enemy of the Two-Six street gang and that he was not a friend of the defendant. On re-cross-examination the prosecutor asked whether he had spoken to the defendant on the evening of the shooting. The defendant’s attorney objected on the ground that the question was beyond the scope of the redirect examination. The prosecutor withdrew the question.

The defendant’s attorney made a motion for a mistrial. She said that she had an understanding with the prosecution that if anyone was going to identify the defendant “as having been at the party, you know, being there, *** so that [the defense] would not have what [they] have just had, which is trial by ambush.” She said that Villagomez’s testimony was known to the prosecution but it had taken the defense by surprise. She then accused the State of “underhanded methods” and “reprehensible and irresponsible prosecutorial misconduct.” She also said that the prosecutors had lain “in the weeds” and had violated the judge’s discovery order. Without asking the prosecutors to respond, the judge said the following:

“I would note the testimony of Mr. Villagomez simply said he left the party for awhile, saw the defendant, did not say where and what relationship to time or place to the incident where the shooting took place. It was not verified either on direct or cross-examination. I would, therefore, find and respectfully deny your motion for a mistrial. I would preclude the State from argument that the witness had put Mr. Gray at the scene.”

Further colloquy ensued between the judge and counsel. The defendant’s attorney also told the judge that Villagomez had “lied” to them in their interview with him. The defendant’s attorney asked the judge to order the State to disclose to the defense if they had “some other impeachment that they are not telling us.” The prosecutor pointed out that the defendant’s discovery answer did not inform the State who the defense witnesses would be. Consequently, he said, the State had no way of knowing who the defense witnesses would be.

The defendant’s petition for relief pursuant to section 2 — 1401 included the affidavit of Villagomez in which he alleged as follows:

“(1) On Friday, August 5, 1988, I appeared in Judge Suria’s court pursuant to a defense subpoena. There in open court and in front of the State’s Attorneys, Judge Suria ordered me to return the following Wednesday, August 10,1988.

(2) Over the weekend I received a subpoena from the State’s Attorneys to go to their office on Monday, August 8, 1988.1 went there.

(3) While there I was interviewed by three State’s Attorneys, including the one who cross-examined me, Anthony Calabrese. I don’t know who the other two were.

(4) At that interview I told them I had seen Jason Gray earlier in the day of the shooting, not moments before the shooting as the prosecutor made it appear at trial.

(5) I felt I was in trouble with the State and had better cooperate with them. So when they told me not to tell the defense that I had been subpoenaed by them or what I told the State, I obeyed their instructions. I also felt that the prosecutors were putting words in my mouth.

(6) I am no friend to Jason Gray, in fact, we are enemies.

(7) It was and is my impression that the State’s Attorneys were threatening to charge me with some crime, and it is for this reason I hired an attorney, Mr. Novelle, although I am innocent of any wrongdoing.

(8) I did not see Jason Gray at the party, near the party or near in time to the shooting.” (Emphasis in original.)

The judge heard oral argument on the petition on February 22, 1989. We conclude from the remarks of the judge and counsel that the hearing on the petition had been continued to give the parties an opportunity to brief the question of whether the judge had jurisdiction. The judge asked the defendant’s attorneys what the “thrust” of the petition was. The defendant’s attorney told the judge that Villagomez had come to them after the trial had been completed and told them that his testimony was peijury. The prosecutor pointed out that Villagomez was the defendant’s own witness. After hearing the statements of the prosecutor and the defense attorney, the judge said that there was no basis for his holding a hearing and denied the request for a hearing. He concluded that there was no allegation of wrongdoing on the part of any parties, only the witness, and that the affidavit did not explain why the witness committed perjury

The State did not file a response to the petition and in argument did not attempt to refute any of the allegations of Villagomez’s affidavit. Consequently, we must, at this point, accept the allegations of the affidavit as true. (Withers v. People (1961), 23 Ill. 2d 131, 177 N.E.2d 203.) Accepting the allegations as true, we find that the State knew that Villagomez had been subpoenaed by the defense. The State then subpoenaed Villagomez, and the subpoena apparently ordered him to appear in its office, a procedure which is arguably an abuse of process. (Cf. People v. Hart (1990), 194 Ill. App. 3d 997, 552 N.E.2d 1 (improper for subpoena duces tecum to provide for delivery of documents to the State’s Attorney’s office rather than to the court).) According to other allegations of the petition, Villagomez had been interviewed by the police, and several summaries of his conversations with the police appeared in the police reports. In none of the police reports was there any indication that Villagomez had told any police officer or anyone else that he saw the defendant at or near the scene of the shooting or at any time during the day of the shooting. According to Villagomez’s affidavit, he told the prosecutors in their office that he had seen the defendant earlier in the day of the shooting and not moments before the shooting. Moreover, the prosecutors told Villagomez not to tell the defense that he had been subpoenaed by the State or that he had told the prosecutors that he had seen the defendant earlier on the day of the shooting and not moments before the shooting. If that last statement is true, it lends support to the defendant’s attomey’s argument on the motion for mistrial that the State engaged in “trial by ambush.”

We turn now to the cross-examination of Villagomez. We disagree with the trial judge’s conclusion that Villagomez’s testimony did not express a time between his meeting with the defendant and the shooting. Villagomez’s testimony on cross-examination was that he saw the defendant just before the shooting. And if Villagomez saw the defendant just before the shooting, the defendant must have been near the shooting. That testimony by a defense witness was strong corroboration of McGuire’s testimony. It was material and not merely cumulative.

The prosecution used Villagomez’s testimony in closing argument. In the defendant’s attorney’s closing argument he said that Villagomez was lying and that he “had set [the defense] up.” He also asked why the State had not called all the witnesses. In response the prosecutor explained why he had not called certain witnesses. He said that he would have liked to have called Villagomez and that he would like to have Villagomez sitting next to the defendant because “that’s where he belongs.” He said he was not going to call someone “who was an accomplice to this offense.” He added:

“And I may have not had enough evidence to prove him guilty, but we have enough to prove him. The man who went out and got Jason Gray or met Jason Gray, the one who opened the door? Villagomez? The one who first opens the door for the Two-Two ladies or, Two-Six ladies, and then gets behind the door and everyone else gets hit and hurt but him? That’s who they want me to call as a witness?” (Emphasis added.)

We note, although the defense did not object at trial or make an issue of this argument in this court, that the prosecutor’s argument violated the direction of the trial judge, when he denied the motion for a mistrial, that the prosecutors were not to argue that Villagomez had put Jason Gray “at the scene.”

The remaining question before us, therefore, is whether Villagomez’s willfully false and material testimony “controlled the determination” of the case. (Jennings, 48 Ill. 2d at 299.) The trial judge apparently concluded that Villagomez’s testimony did not “control the determination” of the case because the judge felt that Villagomez’s testimony did not place the defendant near the shooting at the time of the shooting. Because we conclude that the trial judge misinterpreted Villagomez’s presumptively false and material testimony, we also hold that the judge abused his discretion in denying the motion without a hearing. For this reason, we must remand the case for a hearing on the defendant’s section 2 — 1401 petition.

Since this case is being remanded, another more serious aspect of the case should be considered. It is an aspect that was raised briefly by the trial judge but was not raised by the defense in either the trial court or in this court. We raise it now sua sponte. That aspect involves the obligations of the prosecution under Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173, and Brady v. Maryland (1963), 373 U.S. 83,10 L. Ed. 2d 215, 83 S. Ct. 1194.

The general rule provides that points not argued in the trial court are waived as are, needless to say, points not raised in the reviewing court. But an exception to the general rule exists if the intervention of the reviewing court is necessary to achieve a just result. Reviewing courts, we are instructed, are more than umpires. (Wozniak v. Segal (1974), 56 Ill. 2d 457, 308 N.E.2d 611.) We may not avert our eyes from what is clearly before us.

In this case, the defendant’s attorneys argued that the defendant was entitled to relief under section 2 — 1401 because Villagomez had committed perjury. They have so argued in this court. They have not claimed in the trial court, or in this court, that the defendant’s constitutional rights were violated because the prosecutors knew that Villagomez’s testimony on cross-examination was false (Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173) or that the prosecutor suppressed evidence favorable to the defendant. (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) We make these observations because our analysis of Villagomez’s affidavit arguably supports one or both of those claims.

Villagomez said in his affidavit that he told the prosecutors that he had seen Gray some time earlier in the day and not “shortly before” the shooting. If that is true, then he testified falsely before the jury and the prosecutors knew it was false. If his statement in his affidavit is true, the prosecutor should not have even asked the question in the form that he did. And when the prosecutor got the answer that he did, if he knew that Villagomez had told him something different in his office, the prosecutor was under an obligation under Napue and Brady to bring to the attention of the judge and jury the previous inconsistent statement made by Villagomez.

When we said that the judge briefly touched on this aspect of the case, we were referring to the judge’s statement, which he made after the parties had completed their argument, that there was no allegation of “wrongdoing on the part of *** any party to this litigation except the witness himself.” The judge also said that he was denying the motion without a hearing because the allegations made in the petition gave no reasons for Villagomez’s recantation. No one made any effort to disabuse the judge of his observations. We must, however, disagree with the judge. Villagomez’s affidavit does contain allegations of fact which might support a finding of wrongdoing on the part of the prosecutors and that Villagomez did give reasons for his false testimony.

We wish to make our position clear that we have not made any prejudgments of the facts. We simply say that the allegations of the petition are such that, taken as true, they could establish violations of the defendant’s constitutional rights. From a very technical aspect, a post-conviction petition would be the more proper vehicle to explore this claim, but judicial economy dictates that the defendant be permitted to argue this claim now under the section 2 — 1401 petition rather than have it raised later in a post-conviction petition or a petition for a writ of habeas corpus in the Federal district court.

For these reasons, the judgment of conviction in appeal No. 1—88—3606 is affirmed. The judgment in appeal No. 1—89—0889 is reversed and the cause remanded for further proceedings consistent with this opinion.

No. 1—88—3606, affirmed.

No. 1—89—0889, reversed and remanded.

McNAMARA, P.J., and GIANNIS, J., concur.

       Villagomez testified later for Bobe, who was represented by other counsel. The State was represented by the same assistant State’s Attorneys who prosecuted in this case. Villagomez’s direct testimony in Bobe was the same as it was in this case. The prosecutors, however, did not ask Villagomez anything about seeing Gray before the shooting.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICARDO MALDONADO, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—1605
    Opinion filed May 17, 1993.
    Rita A. Fry, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Montel M. Gayles, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a bench trial, defendant Ricardo Maldonado was convicted of intimidation (Ill. Rev. Stat. 1989, ch. 38, par. 12—6(a)) and sentenced to two years’ imprisonment. The sole issue on appeal is whether he was proven guilty beyond a reasonable doubt. We affirm.

The returned indictment against defendant charged as follows:

“[0]n or about March 27, 1989 at and within the County of Cook
RICARDO MALDONADO MARIO PALOMINO
committed the offense of
INTIMIDATION
in that THEY, WITH THE INTENT TO CAUSE SHERRY CRUZ TO OMIT THE PERFORMANCE OF AN ACT, TO WIT: CALLING POLICE TO REPORT THEIR ACTIVITIES, DID COMMUNICATE TO SHERRY CRUZ A THREAT WITHOUT LAWFUL AUTHORITY [TO] INFLICT PHYSICAL HARM TO HER IN VIOLATION OF CHAPTER 38, SECTION 12 — 6 — A(l) ***.”

Defendant was tried with codefendants Mario Palomino and Anthony Frigo.

Sherry Cruz, 26 years old, testified that she lived in a row house in the projects with her three children, ages four through seven. On March 27, 1989, at 9:30 p.m., she was watching television while her children were upstairs sleeping. She heard a lot of noise on her back porch and went to the back door. She opened the back door and saw a group of about 15 people including the defendant, Frigo and Palomino, whom she identified in court. Defendant and Frigo were right up against the screen door and Palomino was to the side. Cruz asked the group if they would move because her children were sleeping. None of the defendants said anything, and Cruz went inside her house.

At 10:15 p.m. the same evening, the group was still making noise, so Cruz went to the back door a second time. She again asked them to move because her children were trying to sleep. No one said anything to Cruz.

Cruz then testified as follows:

“Q. [Assistant State’s Attorney] Did anything unusual happen that evening?
A. Yes.
Q. What happened?
A. At 11:15 I was watching TV and I heard this big bang, like bang glass, big noise.
Q. I’m sorry. Go ahead.
A. So I went to the door again. I open up the front door. I didn’t open the screen door, just the inner part of the door.
Q. This would be your rear door, correct?
A. Yes, the back door.
Q. Did you look outside?
A. Yes, I did.
Q. What did you see when you looked outside?
A. I seen [sic] Mr. Palomino, Mr. Frigo, and Mr. Maldonado.
* * *
Q. Okay, in addition to these three defendants, did you see anyone else out there at that time?
A. Yes, I did.
Q. And who was that?
A. Same group, about 15 people were still there.
Q. When you went to the door, did you say[ ] anything to these boys at that time?
A. Yes, I did.
Q. What did you say to them?
A. I told them I didn’t ask them not once, twice, but three times if they can please move off my porch because my kids [were] trying to sleep. And since they didn’t want to leave, they leave me no other choice but to call the police.
Q. And after you told them that you were going to call the police, did any of them say anything to you?
A. Yes, they did.
Q. Who is the first one to say something to you?
A. Mr. Frigo.
Q. What did Mr. Frigo say to you at that time?
A. He told me that if I was to call the police, he was going to put a bullet through my head and he was going to bomb my house. He would take care of my kids.
Q. Where was he when he said that to you?
A. He was facing all the way to the screen.
Q. Where were your children at that time?
A. Right behind me.
Q. While Mr. Frigo was saying that, what was Mr. Maldonado doing there?
A. He was staying there representing, saying shut the F-up, get in the F-ing house. Why don’t you stay there, mind your own business. This is Disciple Nation turf. Shut up. At that point I closed the door.
Q. While Mr. Maldonado was saying that, did Mr. Palomino say anything?
A. He was yelling. He was saying Disciple love, shut up, go in the house. The rest of them were throwing objects at that time. I didn’t know what it was until later.
* * *
Q. Now after that, what did you do?
A. I went in the house and I dialed 911.
* * *
Q. After you heard this, these noises by the back door, what did you do?
A. I went back to the door.
Q. Okay. And what did you do when you went back to the door?
A. I told them that the police was [sic] coming.
Q. Did you open the back door?
A. Yes, I did.
Q. Who was there when you opened the back door?
A. The same people.
Q. Okay. And what did you say to them at that time, if anything?
A. I told them that I called the police and that they were going to be coming. That they were on their way.
Q. Did either of these three defendants say anything to you at that time?
A. Yes.
Q. Which one said something first?
A. Mr. Maldonado.
Q. What did he say to you at that time?
A. He said didn’t you hear what Peter said. Whjich [sic] is Anthony. He said if you call the police, I am going to put a bullet right the [sic] through the middle of your head. He explained to me how he was going to make a cocktail bomb. He was gone go to [sic] put gasoline in a bottle, put a rag on it, light it and throw it in my house. And if that didn’t take care of my kids, he then would take care of my kids.
* * *
Q. Did Mr. Palomino say anything to you?
A. Yes, he did.
Q. What did he say to you?
A. He said Disciple Nation, MAG killers.
Q. When you say MAG, what are you referring to?
A. Mothers Against Gangs.
Q. Are you a member of that group?
A. Yes, I am.
* * *
Q. *** [D]id he say anything besides that?
A. He said this is the — He said Disciple love, MAG killer, Disciple Nation. ***
* * *
Q. Now, did Mr. Frigo say anything to you at that time?
A. He was saying Disciple Nation. This is their turf. They do what they want. Shut up, go in the house. And I just kept telling them that the police were going to come. Why don’t they just leave.”

Cruz’s mother, Sherry Guzman, then came to her house. Defendant went “nose to nose” with her “and told her she was dead.” Cruz’s mother called the police and Chicago Housing Authority (CHA) security. Guzman returned outside. Defendant told her that “[w]e already threatened your daughter once. Put a bullet in her head. And Anthony, Frigo said, he would throw a cocktail bomb in her house.” The CHA security arrived at about 12:30 p.m. and the group fled the scene. The Chicago police later arrived at about 1:30 a.m.

Defendant and Frigo testified at trial. Both denied making any threats. Defendant admitted arguing with Cruz and swearing at her. Frigo offered the testimony of five other witnesses who testified that he was not on Cruz’s porch during the argument which involved Cruz.

Following the evidence, the court found defendant and Palomino guilty of intimidation, but Frigo not guilty. Defendant appeals, alleging that he was not proven guilty of intimidation beyond a reasonable doubt.

The Criminal Code of 1961 defines the offense of intimidation as follows:

“A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another *** a threat to perform without lawful authority any of the following acts:
(1) Inflict physical harm on the person threatened or any other person or on property.” Ill. Rev. Stat. 1989, ch. 38, par. 12—6(a)(1).

The purpose of the intimidation statute is to prohibit the making of specified threats intended to compel a person to act against the person’s will, and the gravamen of the offense of intimidation is the exercise of improper influence, the making of a threat with the intent to coerce another. (People v. Tennin (1987), 162 Ill. App. 3d 520, 525, 515 N.E.2d 1056; People v. Hubble (1980), 81 Ill. App. 3d 560, 563-64, 401 N.E.2d 1282.) Implicit in the word “threat” as it is used in the intimidation statute is the requirement “ ‘that the expression in its context have a reasonable tendency to create apprehension that its originator will act according to its tenor.’ ” (People v. Gallo (1973), 54 Ill. 2d 343, 352, 297 N.E.2d 569, quoting Landry v. Daley (N.D. Ill. 1968), 280 E Supp. 938, 962.) Intimidation is a specific intent crime. People v. Haybron (1987), 153 Ill. App. 3d 906, 506 N.E.2d 369.

Defendant in this case raises two arguments to support his claim that he was not proven guilty beyond a reasonable doubt. First, Cruz’s testimony before she called the police reflects that defendant communicated no threat whatsoever. Second, after Cruz called the police, although defendant then made a threat, the threat was of no moment since Cruz had already called the police.

We affirm defendant’s conviction and sentence. Defendant’s statements to Cruz must be viewed within their context. A large group of individuals were located on Cruz’s back porch refusing to leave. The group was noisy, and Cruz’s children were trying to sleep. Twice before Cruz had requested the group to move from her porch. On the third time, Cruz informed them she was going to call the police. Frigo then interjected that he would shoot Cruz and injure her children if she called the police. At about the same time, defendant told Cruz the following:

“He was staying there representing, saying shut the F-up, get in the F-ing house. Why don’t you stay there, mind your own business. This is Disciple Nation turf. Shut up.”

Cruz at that point closed the door.

Cruz then testified that, after she called the police, she returned to the porch. She told the group that she had called the police. Defendant then stated to her:

“He said didn’t you hear what Peter said. Whjich [sic] • is Anthony. He said if you call the police, I am going to put a bullet right the [sic] through the middle of your head. He explained to me how he was going to make a cocktail bomb. He was gone go to [sic] put gasoline in a bottle, put a rag on it, light it and throw it in my house. And if that didn’t take care of my kids, he then would take care of my kids.”

Defendant also told Cruz’s mother that “[w]e already threatened your daughter once. Put a bullet in her head.”

We believe that the trier of fact could conclude beyond a reasonable doubt that defendant committed the offense of intimidation. Defendant’s conduct after Cruz telephoned the police demonstrates that defendant was personally renewing the previous threat. Whether Cruz had in fact called the police as she said she had is not a relevant inquiry. It is sufficient under the intimidation statute that defendant specifically intended his threat to coerce Cruz to omit calling the police. Again, whether she already had is irrelevant.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.