author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CEDRIC DUFFIE, Defendant-Appellant.
    Second District
    No. 2—88—0408
    Opinion filed February 9,1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Following a jury trial, on February 24, 1988, defendant, Cedric Duffie, was convicted of: (1) armed violence in that, defendant, while armed with a pistol, committed aggravated battery by shooting Steven Anthony in the leg, causing great bodily harm (count IV); (2) armed violence in that, defendant, while armed with a pistol, committed aggravated battery by shooting Steven Anthony in the leg while he was on a public way (count VIII); and (3) armed violence in that, defendant, while armed with a pistol, committed aggravated battery by shooting Terry Walls in the leg while he was on a public way (count X). Defendant was acquitted of attempted murder as alleged in counts V and VI of the information. The other counts were nolprossed. On April 22, 1988, the trial court sentenced defendant on counts IV and X, and imposed concurrent, extended terms of 45 years’ imprisonment for each of the two counts.

Defendant appeals his convictions and sentences, contending that (1) defendant was denied his right to a fair trial because the jury was given inconsistent and contrary instructions regarding the required elements of armed violence; and (2) the trial court improperly considered the infliction of bodily harm as a factor in aggravation in imposing sentence where bodily harm is a factor implicit in the offense of armed violence premised upon aggravated battery. We affirm.

At trial, the evidence established that the Walls family resided at 931 McAlister Street in Waukegan, Illinois. Defendant’s family lived two blocks away at 840 South Utica Street. The two families had a hostile relationship over a substantial period of time. In June 1987, defendant and his brothers, Offiel and Zakee Duffie, approached James Walls. The Duffie brothers were looking for James’ brother, Larry. Defendant claimed that Larry owed defendant’s niece some money. James Walls testified that defendant had told him he was looking for his brother to “mess him up.” An argument ensued which erupted into a fight. James testified that, after the fight, defendant said, “Tell your brother I’m looking for him to kill him. I’m not just gonna hurt him.”

On June 21, 1981, the Walls were having a family barbecue at their home. Terry Walls testified that, at about 2 p.m., a black van drove by the home passing by the car in which Terry was sitting at about five feet away. Terry stated that defendant started firing six to eight shots from a sliding door in the back of the van. One of the shots struck Steven Anthony in the leg. One shot struck the window of the car in which Terry was seated; a piece of lead struck Terry’s arm, and a piece of glass struck his knee.

At trial, Terry and Mark Walls and their cousin, Mildred Smith, identified defendant as the individual who had fired the shots from the van. Officer Martinez stated that the police who responded to the incident found in the rear of the Duffie residence a black van matching the description reported to them; the van was impounded.

Florida Duffie, defendant’s mother, stated that defendant was asleep in the basement bedroom of their home at the time of the incident. Defendant’s brother, Demetrius, testified that, on the same day, Mark Walls had driven by his house in a white car and yelled, “We’re going to get you guys.”

Louis Woods testified that he was the owner of the black van. On the day in question, it was in the possession of Demetrius Duffie, who held it as collateral for a loan to Woods.

Officer Louis Moore testified that he interviewed Mark Walls following the incident. Mark informed him that one of the Duffies had a handgun in his hand and started shooting at the crowd. After their conversation, Mark identified defendant’s photograph from a photographic lineup and stated that defendant was the one who had shot at him.

Defendant was eventually arrested in Dallas, Texas.

Defendant first argues that the trial court erred in giving the jurors non-Illinois Pattern Jury Instruction forms (non-IPI or IPI) which omitted an element of the offense of armed violence and allowed them to find defendant guilty of the offense without specifying the mental state required for that offense. Defendant claims that the verdict forms were inconsistent or contradictory to the issues instructions regarding armed violence and aggravated battery. Defendant concedes that the jury was properly instructed by the appropriate IPI instructions regarding the definitions and elements of armed violence, which stated:

“To sustain the charge of armed violence, the State must prove the following propositions:
First: That the defendant committed the offense of aggravated battery; and
Second: That when he committed the offense of aggravated battery he was armed with a dangerous weapon.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” Illinois Pattern Jury Instructions, Criminal, No. 11.20 (2d ed. 1981) (hereinafter IPI Criminal 2d).

The jury was also given the appropriate IPI instructions regarding the definitions and elements of aggravated battery. For instance, the definitional instructions stated:

“A person commits the offense of aggravated battery when he, in committing a battery, knowingly causes great bodily harm to the person harmed.” (IPI Criminal 2d No. 11.07.)
“A person commits the offense of aggravated battery when he, in committing a battery, commits the battery upon a person who is on or about a public way, public property, or public place of accommodation or amusement.” (IPI Criminal 2d No. 11.09(10).)
“A person commits the offense of battery when he, knowingly without legal justification and by any means causes bodily harm to another person.” (IPI Criminal 2d No. 11.05.)

Pursuant to the foregoing instructions, the jury could find the defendant guilty of armed violence only if the prosecution proved beyond a reasonable doubt that he acted knowingly.

However, the jury was also given the following non-IPI verdict forms:

“We, the jury, find the defendant, Cedric Duffie, guilty of the offense of Armed Violence for causing great bodily harm to Steven Anthony with a dangerous weapon.
We, the jury, find the defendant, Cedric Duffie, Guilty of the offense of Armed Violence for causing great bodily harm to Terry Walls while Terry Walls was on the public way with a dangerous weapon.”

The foregoing verdict forms differ somewhat from the Illinois Pattern Jury Instructions, which would have simply normally stated the title of the offense:

“We, the jury, find the defendant guilty of the offense of [armed violence].” IPI Criminal 2d No. 26.05.

Supreme Court Rule 451(a) mandates that whenever there is an applicable IPI instruction, that instruction shall be used “unless the court determines that it does not accurately state the law.” (107 Ill. 2d R. 451(a).) Defendant asserts that the failure to give an IPI verdict form in this case served to confuse the jury; furthermore, the rule in Illinois is that, when conflicting instructions are given, one of which is a correct statement of the law and the other is an incorrect statement of the law, the error is not harmless (People v. Haywood (1980), 82 Ill. 2d 540, 545). Defendant notes that the giving of contrary instructions constitutes plain error under Rule 451(c) (107 Ill. 2d R. 451(c)) and concludes, therefore, that his failure to object to the instruction in the trial count does not result in a waiver of this issue on review and the error thus requires reversal. We disagree.

Not all errors in the giving of instructions require reversal under the plain-error exception to the waiver rule. The general rule is that the failure to object at trial to an asserted error in jury instructions waives the question, and no party may raise the failure to give an instruction unless he tendered it at trial. (People v. Huckstead (1982), 91 Ill. 2d 536, 543.) Similarly, the failure to raise the issue in a post-trial motion also effectively waives the issue for appellate review purposes. People v. Tannenbaum (1980), 82 Ill. 2d 177,181.

In this case, defendant neither objected to the instructions at trial nor tendered any alternate instructions. Additionally, defendant failed to raise the issue in his post-trial motion. Thus, the issue is waived. Even under Rule 451(c) (107 Ill. 2d R. 451(c)), the plain-error exception to the waiver rule is narrowly restricted to the correction of “grave errors” or to situations where the case is close factually, and fundamental fairness requires that the jury be properly instructed. Huckstead, 91 Ill. 2d at 547.

The plain-error exception has no application here since no grave error was committed. The error complained of consists of a very slight deviation from the format found in the IPI jury verdict forms and is not “contrary” to the correctly stated issues instructions so amply supplied to the jury. It is obvious that the jury verdict forms merely require that the name or title of the offense be inserted into a generic form. In the present case, the named offenses were amplified only sufficiently to enable the jury to identify which offenses had been passed on, that is, the circumstances of the offense committed upon Steven Anthony as opposed to the circumstances of the offense committed upon Terry Walls. There is no requirement that the jury verdict forms recite the precise elements of the crime so long as the offense is properly identified. Where, as in this case, the issues instructions specifically informed the jury of all the material elements of the offense charged, there was no error in submitting a more general verdict form. People v. Roy (1988), 172 Ill. App. 3d 16, 25; People v. Yettke (1981), 95 Ill. App. 3d 365, 370.

Moreover, it is well established that instructions are to be considered as a whole and not singly. Where a series of instructions, considered together, correctly state the applicable law, a party may not single out one instruction which,, standing alone, may not be accurate. People v. Thibudeaux (1981), 98 Ill. App. 3d 1105, 1121; People v. Juve (1969), 106 Ill. App. 2d 421, 427.

We also observe that there was no contradiction between the jury verdicts and the issues instructions, and defendant acknowledges that the issues instructions were correctly given. The verdict forms were merely less complete than the issues instructions. Taken together, the issues instructions correctly stated the law and allowed the jury to perform its function. (See People v. Jenkins (1977), 69 Ill. 2d 61, 66.) Had the IPI verdict forms been used, the verdict would have consisted merely in stating the title of the offense without any reference to the precise elements of the crime. Because of the multiple, similar counts charged in this case, the trial court clearly found it necessary to add the circumstances of each count in order to identify each count for the benefit of the jury and for the clarity of the record. The recent committee note following verdict form 26.05, the form advocated by defendant, supports our analysis:

“In all cases, the title of each offense under consideration by the jury for a possible guilty verdict should be identical to the title of that offense as set forth in each issues instruction.
The opening sentence of the issues instructions as well as the guilty and not guilty verdict forms may be expanded in appropriate cases to distinguish among the different ways a particular charge is before the jury.” (Illinois Pattern Jury Instructions, Criminal, No. 26.05, Committee Note, at 401 (2d ed. Supp. 1989).)

Here, the verdict forms were properly expanded to distinguish the ways in which each particular charge was before the jury. We find no error stemming from the form of the verdicts that were given.

Defendant next contends that, since bodily harm is a factor implicit in the offense of armed violence premised upon aggravated battery, the trial court improperly considered the infliction of bodily harm as a factor in aggravation in determining defendant’s sentence for the two counts of armed violence. This argument was rejected in People v. Lampton (1982), 108 Ill. App. 3d 41, where the court stated:

“A trial judge may properly consider in sentencing a defendant, conduct which causes bodily harm even in those cases where great bodily harm is arguably implicit in the offense for which a defendant is convicted. (People v. Hert (1981), 95 Ill. App. 3d 871, 874.) The amount of harm sustained by a victim in a given situation varies from case to case. It is not a constant but one of degree. Its consideration depends not on the classification of the offense but the peculiar conduct of the actor, which is an ever-changing variable. A sentencing judge does not err in considering the amount of harm as a statutory aggravating sentencing factor in such context.” 108 Ill. App. 3d at 47.

In People v. Russell (1986), 143 Ill. App. 3d 296, this court also adopted the reasoning of Lampton in affirming the imposition of consecutive sentences for the commission of two counts of armed violence premised on aggravated battery. Relying on Lampton, this court held that the defendant’s consecutive sentences were not the result of an improper, double enhancement of the sentence, stating:

“[W]e believe there can be a difference between the degree of great bodily harm which a jury may, as the trier of fact, find sufficient to find a defendant guilty of aggravated battery and the degree of severe bodily injury which the court may find, in the exercise of its judicial discretion, to be one of the factors which warrants a consecutive sentence.” Russell, 143 Ill. App. 3d at 304.

In the present case, the trial court announced its reasons for the sentence in the following terms:

“THE COURT: There are some factors in aggravation which the Court, of course, has to consider, and primarily that would be the defendant’s history of prior delinquencies, criminal activity, I think the injury clause [sic] inherent in the aggravated battery upon which the armed violence charge is predicated. I think a sentence is necessary to deter others.
* * *
But in the meantime, sir, I am going to, based on the prior convictions for a Class X felony, sentence you to an extended term of forty-five years as to each of these two counts to which I’m entering judgment on, and make that sentence concurrent.”

It is clear that, in considering factors in aggravation, the trial court did not rely solely or principally on the harm caused by defendant, but considered also defendant’s extensive criminal history and the need to deter others. It is also clear that the basis for the 45-year extended term was defendant’s prior convictions of Class X felonies within the prior 10-year period, a circumstance which the State brought to the trial court’s attention. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)(1).) We do not consider the trial court’s imposition of a 45-year sentence to be disproportionate based on its consideration of the appropriate factors; the trial court could have imposed a term of 60 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(a)(2).) The record reveals that the trial court properly considered the arguments of counsel, the presentence investigation report, the defendant’s right of allocution, and the statutory factors in mitigation and aggravation. The trial court was best suited to tailor the sentence to the needs of this case, and he balanced the appropriate factors in imposing sentence. (See Russell, 143 Ill. App. 3d at 309.) We find no abuse of discretion warranting a reversal or modification of its judgment.

Finding no error in the instructions given to the jury or in the imposition of sentence, we affirm the judgment of the circuit court of Lake County.

Affirmed.

McLAREN and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN JUSTICE REINHARD,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN PALMER, Defendant-Appellant.
    Second District
    No. 2—88—0477
    Opinion filed February 9,1990.

      REINHARD, J., dissenting.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Steven Palmer, appeals from the May 5, 1988, order of the trial court. This order was entered after a hearing pursuant to section 5 — 2—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 2—4(a)) and sentenced defendant to involuntary commitment to the Department of Mental Health and Developmental Disabilities (Department of Mental Health) for natural life. We reverse and remand.

Palmer was tried for murder (Ill. Rev. Stat. 1983, ch. 38, par. 9— 1(a)(1)) and armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A — 2). A jury returned a verdict of guilty but mentally ill on both charges. The court conducted a sentencing hearing at which time the conviction of armed violence was vacated. The court found the crime to be brutal and heinous and sentenced Palmer to an extended term of natural life imprisonment on the murder conviction.

On appeal, this court reversed the conviction. This court found that a reasonable doubt existed as to defendant’s sanity at the time of the offense. This court then issued the following mandate:

“Accordingly, the judgment of the circuit court is reversed and the cause remanded for entry of a judgment of not guilty by reason of insanity. The trial court is then directed to proceed in accordance with section 5 — 2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4), which controls such dispositions.” People v. Palmer (1985), 139 Ill. App. 3d 966, 974.

On September 9, 1986, the State filed in the circuit court a “MOTION TO REINSTATE DEFENDANT’S CONVICTION OR, IN THE ALTERNATIVE, MOTION TO SET MATTER FOR TRIAL.” The court heard arguments on the motions, and on October 3, 1986, denied the motions. The court, consistent with this court’s mandate, entered a finding of not guilty by reason of insanity, transferred the defendant to the Department of Mental Health for evaluation and set the matter for hearing on November 18,1986.

Prior to the completion of the evaluation, the State filed two motions with our supreme court: a motion for stay and a motion for leave to file a petition for a writ of mandamus and prohibition or, in the alternative, a motion for a supervisory order. On November 12, 1986, the supreme court granted the State leave to file a petition for writs of mandamus and prohibition. The supreme court also recalled the appellate court’s mandate previously issued by this court.

On November 18, the trial court found that, pursuant to the November 12 supreme court’s order, it lacked jurisdiction to proceed further. The court ordered the defendant to be returned to prison. On November 21, this court ordered its mandate to be recalled pursuant to the supreme court’s order.

On September 21, 1987, our supreme court held that the State’s motion for leave had been improvidently granted. The court denied the requests for writs and a supervisory order. People ex rel. Foreman v. Nash (1987), 118 Ill. 2d 90, 98.

On October 28, 1987, the State secured an indictment which repeated the charges of the original indictment. Defendant filed a motion to dismiss the indictment. On February 18, 1988, the court granted defendant’s motion to dismiss. The State appealed the court’s decision dismissing the October 18, 1987, indictment, and this court affirmed the circuit court’s decision. People v. Palmer (1989), 188 Ill. App. 3d 378, 384.

Also on February 18, the circuit court entered an order finding defendant not guilty by reason of insanity. The court ordered the defendant to be remanded into the custody of the Department of Mental Health for evaluation.

The Department submitted an evaluation to the court prepared by Dr. A. Calabio in March 1988. Calabio concluded his evaluation by stating that the defendant was in need of inpatient mental health services.

On May 5, 1988, the court conducted a hearing pursuant to section 5 — 2—4(a). (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 2—4(a).) The State and counsel for defendant stipulated as to what Calabio would say if called to testify. Defendant objected to this testimony. Defendant expressed his disagreement with Calabio’s findings and requested outpatient status through a veteran’s hospital.

The court found that the defendant was subject to involuntary commitment under section 5 — 2—4 and the mental health code. The court also found that the crime was wantonly cruel and heinous and an exteiided-term sentence was appropriate. On May 5, 1988, the court sentenced the defendant to a natural life term of commitment. The court’s order also provided that if the commitment for natural life was impermissible, then the term of commitment shall be 100 years, and, if a 100-year term was impermissible, then the term of commitment shall be 80 years. Defendant filed a timely notice of appeal from this order.

This court reissued its original mandate on September 15, 1988, by stating:

“MANDATE
BE IT REMEMBERED, that, to-wit: On the 31st day of December, 1985, an Opinion of the aforementioned Court was entered of record and in accordance with the views expressed in the attached Opinion the judgment of the Circuit Court of Lake County is reversed and the cause remanded for entry of a judgment of not guilty by reason of insanity. The trial court is then directed to proceed in accordance with section 5 — 2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4) which controls such dispositions.
Reversed and remanded with directions.”

Defendant presents three arguments on appeal. First, defendant contends that the circuit court proceedings committing him to the Department of Mental Health for natural life were void due to the trial court’s lack of jurisdiction. Second, defendant contends that, if the court did have jurisdiction, it erred by not offering the defendant an independent examination and by not requiring the evaluating psychiatrist to appear in person to testify. Third, defendant contends that if the court had jurisdiction, it erred in setting the maximum term of commitment at natural life.

Defendant first argues that the court lacked jurisdiction to conduct the involuntary commitment proceedings. Defendant claims that the court was deprived of jurisdiction from the date that this court’s mandate was recalled, November 12, 1986, to the date that this court reissued its mandate, September 15, 1988. Therefore, any proceedings that occurred during this time period are void and any orders entered must be vacated.

It is clear that upon the filing of a notice of appeal the jurisdiction of the appellate court attaches instanter and, concomitantly, the trial court is deprived of jurisdiction. (Daley v. Laurie (1985), 106 Ill. 2d 33, 37; People v. Baker (1980), 85 Ill. App. 3d 661, 662.) It is equally clear that the appellate court retains jurisdiction of the cause until it issues its mandate, and the reviewing court’s mandate revests the trial court with jurisdiction to do only that which is required by the mandate. (Baker, 85 Ill. App. 3d at 662.) If a trial court acts outside the scope of the mandate and, hence, beyond its jurisdiction, the trial court’s order must be reversed and vacated. Baker, 85 Ill. App. 3d at 663.

In the case at bar, it is undisputed that the trial court’s jurisdiction was divested on May 11, 1984, the date the notice of appeal was filed. This court issued its opinion and mandate on December 31, 1985. The mandate revested the trial court with jurisdiction to enter a finding of not guilty by reason of insanity and to proceed in accordance with section 5 — 2—4 of the Unified Code of Corrections. On October 3, 1986, the trial court entered a finding of not guilty by reason of insanity and set the matter for hearing on November 18. However, upon the State’s motion, the supreme court recalled this court’s mandate on November 12, 1986, and set the matter for hearing in the supreme court. This action, as the trial court correctly determined, deprived the trial court of jurisdiction in the matter.

The supreme court rendered its opinion on September 21, 1987. The court denied the State’s motions. The judgment order stated: “Writs denied; Motion for supervisory order denied.” The judgment order did not provide for this court’s mandate to be reinstated. We find that, contrary to the State’s argument, the supreme court’s order did not automatically reinstate this court’s mandate and thus re-vest the trial court’s jurisdiction. There is nothing in the supreme court’s order indicating that this court’s mandate was reinstated. Both the supreme court and this court issued orders that expressly recalled the mandate, and a similar expression is necessary to reinstate the mandate. The trial court did not regain jurisdiction in this matter until this court issued its mandate on September 15, 1988. The trial court proceedings that occurred between November 12, 1986, and September 15, 1988, are void. The orders entered by the trial court during this time period are vacated.

The State urges that even if the circuit court lacked jurisdiction, this court should invoke its original jurisdiction (see Ill. Rev. Stat. 1987, ch. 37, par. 32.1) and decide the remaining issues instead of remanding for another hearing. We find that it would be inappropriate for this court to decide the remaining issues pertaining to the correctness of the proceedings below. (See People v. McBride (1983), 114 Ill. App. 3d 75, 81.) The defendant is entitled to have a hearing pertaining to involuntary commitment to the Department of Mental Health before a court of competent jurisdiction.

There is one matter presented that we feel compelled to address. This specific issue has been addressed on two occasions by other districts with contrary results. The issue is whether natural life is a permissible “maximum sentence” for murder accompanied by exceptionally brutal or heinous behavior under section 5 — 2—4(b).

This court’s original mandate directed the trial court to proceed pursuant to section 5 — 2—4 of the Unified Code of Corrections. Section 5 — 2—4(b) states:

“If the Court finds the defendant subject to involuntary admission * * * the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time. Such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for release had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.” Ill. Rev. Stat. 1987, ch. 38, par. 1005-2-4(b).

In People v. Larson (1985), 132 Ill. App. 3d 594, 595, after the defendant was found not guilty by reason of insanity, the trial court, using the provisions of the extended-term statute, set the defendant’s maximum period of criminal commitment at 80 years less credit for good behavior. The defendant argued that the court erred by using the extended-term statute to establish the maximum sentence that the defendant could have received had he been convicted of the crime of which he had been acquitted by reason of insanity. The State argued that, not only was the extended-term statute applicable, the court erred by not imposing a “sentence” of natural life, as that is the maximum sentence that the defendant could have received had he been convicted.

The reviewing court stated that a court cannot read a limitation into a statute which the legislature has not seen fit to establish. (Larson, 132 Ill. App. 3d at 596.) The court found that there was nothing in the plain language of the statute indicating that the words “maximum sentence” are to be limited by the maximum sentence available under section 5 — 8—1 of the Unified Code of Corrections. (Larson, 132 Ill. App. 3d at 597.) The court then held the provisions of the extended-term statute did apply.

However, when determining the merits of the State’s contention, the court did limit the “maximum sentence” available under section 5 — 2—4(b). The court stated:

“Courts will not construe a statute in such a way as to render part of the statute a nullity. [Citation.] The State’s position would render superfluous that language in section 5 — 2—4(b) which automatically gives insanity acquittees credit for good behavior [citations], because such credit is not permitted when a term of natural life is imposed. [Citation.] Moreover, use of a natural life sentence would undermine the legislative objective that a definite outer perimeter to defendant’s commitment period be set at the time the initial commitment order is issued. [Citation.] We find that a term of natural life is not a permissible ‘maximum sentence’ under section 5—2—4(b).” Larson, 132 Ill. App. 3d at 597-98.

In People v. Cochran (1988), 167 Ill. App. 3d 830, 831, the trial court, after finding defendant not guilty by reason of insanity, set the defendant’s maximum period of commitment at natural life. The reviewing court stated:

“We may not alter the plain meaning of those words or read any limitations into the statute that do not exist. [Citation.] Section 5 — 2—4(b) does not qualify or limit the phrase ‘maximum sentence’ in any manner. By comparison, section 104 — 25(g)(4) of the Code of Criminal Procedure of 1963 [citation], pertaining to the maximum period of treatment of an unfit defendant, defines maximum sentence as that established by section 5 — 8—1, ‘excluding any sentence of natural life.’ If the legislature wished to impose similar limitations for persons found not guilty by reason of insanity, it could have easily done so. Since the legislature chose not to limit section 5 — 2—4(b), we will not do so either.” (Cochran, 167 Ill. App. 3d at 832.)

In discussing the reasoning of the court in Larson, the Cochran court stated:'

“Merely because good-time credit is not available for natural life sentences does not render the language of section 5 — 2—4(b) superfluous. The good-conduct credit is still applicable to insanity acquittees found to have committed offenses other than murder accompanied by exceptionally brutal or heinous behavior. If we were to accept defendant’s (and the First District’s) position, we would have to ignore the language of section 5 — 8—1(a)(1)(c). When a defendant has previously been convicted of murder or is found guilty of murdering more than one victim, natural life imprisonment is mandatory. [Citation.] This is the sentence set by law under these circumstances. If faced with a defendant acquitted by reason of insanity of two murders, a court would have no choice but to set the defendant’s commitment period at natural life. [Citation.] We therefore read the language of section 5—2— 4(b) to mean an insanity acquittee is entitled to whatever good-time credit is permitted for that particular offense. Nor do we find that the imposition of a natural life sentence undermines the legislative objective of having a definite outer perimeter to a defendant’s commitment period [citation]. A definite outer perimeter has been set, defendant’s natural life. Defendant still has the possibility for early release if he ever should regain his sanity.” Cochran, 167 Ill. App. 3d at 832-33.

We agree with both Larson and Cochran that the extended-term provisions of the sentencing scheme do apply when determining the maximum sentence available pursuant to section 5 — 2—4 of the Code of Corrections. However, we disagree with the reasoning set forth in Larson in determining that natural life is not an available sentence pursuant to section 5 — 2—4. We agree with Cock, cm that the plain language of the statute does not omit natural life as an available maximum sentence. We are expressing no opinion as to whether it was factually appropriate in this case to impose a sentence of natural life. We simply wish to point out that we feel commitment for natural life is an available sentencing alternative pursuant to section 5 — 2—4.

The circuit court did not have jurisdiction to conduct commitment proceedings pursuant to section 5 — 2—4 of the Unified Code of Corrections prior to the issuance of this court’s mandate on September 15, 1988. The commitment of defendant was void. The judgment of the circuit court of Lake County is reversed, and the cause is remanded with instructions to proceed pursuant to section 5 — 2—4.

Reversed and remanded with instructions.

WOODWARD, J., concurs.

JUSTICE REINHARD,

dissenting:

I disagree that the trial court proceedings were void because the trial court lacked jurisdiction.

This court issued its mandate in the original appeal in People v. Palmer (1985), 139 Ill. App. 3d 966, following the supreme court’s denial of defendant’s petition for leave to appeal (People v. Palmer (1986), 112 Ill. 2d 566). Thereafter, the appellate court was divested of jurisdiction in this case and could no longer recall the mandate pursuant to Supreme Court Rule 368(c) (107 Ill. 2d R. 368(c)). (See People v. MeCloskey (1971), 2 Ill. App. 3d 892, 898.) The subsequent proceeding brought in the supreme court by a motion for leave to file a petition for an original writ of mandamus and for a writ of prohibition (107 Ill. 2d R. 381) and, alternatively, for a supervisory order (107 Ill. 2d R. 383) was an action separate and distinct from the original appeal to the appellate court. (See People ex rel. Foreman v. Nash (1987), 118 Ill. 2d 90.) Unless otherwise directed by our supreme court, which it was not, the appellate court was without jurisdiction to do anything relating to this proceeding. Thus, although the supreme court recalled the appellate court’s mandate while considering the petition for the writs and supervisory order, the appellate court was not revested with jurisdiction to act in this proceeding.

Thus, the appellate court was without jurisdiction to recall the mandate, which had already been recalled by the supreme court, nor did it possess jurisdiction to later issue a mandate on September 15, 1988, after the supreme court issued its own mandate on the original action once it decided that the motions before it had been improvidently granted. (People ex rel. Foreman, 118 Ill. 2d at 98.) On this basis, I disagree with the majority’s statement that the circuit court of Lake County regained jurisdiction once this court issued its mandate on September 15,1988.

The question remains, however, whether the circuit court ever regained jurisdiction once the supreme court recalled the appellate court’s mandate pending the supreme court’s determination of the original action for issuance of the writs and for a supervisory order. It is apparent that this mandate was recalled on motion of the State’s Attorney of Lake County for a stay of the mandate pending disposition of the original action. Once the original action was decided by the supreme court’s opinion in People ex rel. Foreman v. Nash (1987), 118 Ill. 2d 90, wherein the court determined that the writs and the motion for supervisory order should be denied (118 Ill. 2d at 98-99), and the mandate on this opinion was subsequently issued by the supreme court, the appellate court’s mandate, which had been recalled, was automatically reinstated in the circuit court of Lake County. This provided the circuit court jurisdiction to proceed, as it did. While the supreme court did not expressly reinstate the appellate court’s mandate in its opinion or mandate, there can be no other conclusion drawn as the supreme court denied, without reaching the merits, the writs and motion for supervisory order requested by the State’s Attorney of Lake County and issued its mandate. The effect of the supreme court’s decision and issuance of its mandate was to reinstate the proceedings in the circuit court. Matters which are implied may be considered embraced by the mandate. See PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 308.

For the foregoing reasons, I cannot accept the reasoning of the majority that the circuit court of Lake County was without jurisdiction to conduct proceedings and enter an order of involuntary commitment and, accordingly, dissent from the reversal of the judgment below. On the merits of the remaining issues raised by defendant, I would affirm the circuit court.

Because I believe the majority has misconstrued the effect of the supreme court’s decision and mandate, the State may wish to expedite review of this decision by moving in the supreme court for an order under Supreme Court Rule 383, as it is the supreme court’s decision which the majority finds has failed to revest jurisdiction in the circuit court of Lake County and, presumably, would continue to have that effect until the issue of jurisdiction is resolved by that court.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT C. SEEHAUSEN, Defendant-Appellant.
    Second District
    No. 2—88—0721
    Opinion filed February 9,1990.

      John R. Krupa and Paul S. Braun, both of Krupa & Braun, Chartered, of Flossmoor, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Scott C. Seehausen, was charged by indictment with the offenses of attempted murder (Ill. Rev. Stat. 1985, ch. 38, par. 8— 4(a)), solicitation to commit murder (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 1(a)), and conspiracy to commit murder (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 2(a)). Following a jury trial, defendant was convicted of attempted murder and solicitation to commit murder and was subsequently sentenced to 16 years’ imprisonment. Defendant filed a post-trial motion which was denied. This appeal followed.

On appeal, defendant argues: (1) that the grand jury’s indictment of him was improperly obtained; (2) that the trial court erred in failing to suppress the “fruits” of the eavesdropping authorization; and (3) that the trial court erred in failing to charge the jury with Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981) (hereinafter IPI Criminal 2d), dealing with accomplice testimony.

The following facts are material to our decision. In April 1986, defendant obtained $27,500 from Stanley Fry on the pretense that defendant would invest the money in stock. But, in fact, defendant misappropriated the funds. In early June 1986, Fry began pressuring defendant for the return of his money. As a consequence, defendant hired Jeffrey Witzke to deliver to Fry on June 12, 1986, a sandwich tainted with sodium cyanide. Defendant offered to pay Witzke $50,000 for this act. Defendant told Witzke that he wanted to murder Fry because Fry had amassed a fortune with money defendant had given him and, yet, Fry had never shared with defendant any of the money Fry had made with defendant’s funds.

On June 11, 1986, Fry received a visit at his office from Witzke. Witzke told Fry about defendant’s plan to kill him. Fry contacted the Westmont police department, and he and Witzke subsequently met with Detective Musial and Captain Brindac of that department. Witzke related to Musial defendant’s plans to kill Fry. Witzke then gave Musial tapes Witzke had made on June 11 of his conversations with defendant.

On the morning of June 12, Witzke contacted Detective Musial to tell him that defendant planned to kill Fry that evening. Later that morning, a circuit judge granted Musial’s petition for authorization of the use of eavesdropping devices to record conversations between defendant and Fry and between defendant and Witzke. Both Fry and Witzke consented to the use of the eavesdropping devices. A small recorder was put on the telephone in Fry’s office. Witzke was to carry a small tape recorder in his jacket pocket.

It was defendant’s defense at trial that Witzke had purchased the cyanide and had tainted the sandwiches with the poison. Additionally, the defense tried to show that defendant’s original plan was to use methol propanol, a drug, instead of cyanide merely to knock Fry out for a few hours. The evidence showed that defendant did on one occasion discuss with Witzke using methol propanol on a sandwich but that Witzke later learned it was cyanide defendant intended to place on the sandwich. Also, the tape recordings which were made of the conversations occurring between Witzke and defendant on June 12 and which were played to the jury at trial indicated it was defendant who placed the cyanide on the sandwich intended for Fry and that it was defendant’s intent to kill Fry. At trial, forensic scientist Paul Titus, who performed tests on the sandwich in question, testified that the sandwich contained a lethal dose of cyanide.

On the evening of June 12, the sandwich laced with cyanide was delivered to Fry at his office by Witzke. Pursuant to the direction of an officer stationed inside Fry’s office, Witzke used Fry’s telephone to call defendant on defendant’s car phone. Witzke told defendant that Fry had eaten the sandwich and collapsed but that he was still breathing. Defendant then instructed Witzke to hold Fry’s nose and place his hand over Fry’s mouth until Fry was no longer breathing. This conversation, which was recorded via the small recorder placed on Fry’s telephone, was also played to the jury. Shortly after this phone conversation, defendant was arrested in his car.

Subsequently, a three-count indictment was obtained against defendant for attempted murder, solicitation to commit murder, and conspiracy to commit murder. The charge of conspiracy to commit murder was dismissed prior to trial.

After the case had proceeded to trial, the jury instruction conference was held. During that conference, defendant tendered IPI Criminal 2d No. 3.17, dealing with accomplice testimony. The trial court refused to charge the jury with the instruction, ruling that Witzke was not an accomplice under the terms of the instruction because he was not “involved in the commission of a crime.”

Following trial, the jury returned a verdict of guilty to the charges of solicitation to commit murder and attempted murder. Later, the trial judge sentenced defendant to 16 years of imprisonment. Defendant then filed this appeal, claiming three contentions of error.

Defendant first argues that the grand jury’s indictment of him was improperly obtained because it was influenced by the prosecuting attorney’s improper comments in unsworn testimony. Defendant maintains that the prosecutor’s comments were prejudicial and constituted the sole means by which grand jurors’ questions concerning critical areas of the investigation were answered. Therefore, the defendant asserts, the trial court erred in denying defendant’s motion to dismiss the indictment. The State counters that the comments of which defendant complains are taken out of context, were not improper, and were made to advise the grand jury, which is the prosecutor’s function.

Although, generally, a defendant may not challenge the validity of an indictment returned by a legally constituted grand jury, courts have carved out certain exceptions to this rule. (People v. Rodgers (1982), 92 Ill. 2d 283, 287.) One of these exceptions permits defendants to challenge indictments where there are clear allegations of prosecutorial misconduct. (People v. Linzy (1979), 78 Ill. 2d 106, 109.) However, to support a dismissal of an indictment, the defendant must show that the prosecutorial misconduct complained of resulted in actual and substantial prejudice to the defendant. People v. Boyle (1987), 161 Ill. App. 3d 1054, 1065; People v. Martin-Trigona (1982), 111 Ill. App. 3d 718, 726.

In both his brief and reply brief, defendant refers to certain statements made by the prosecutor during the grand jury proceeding. Defendant claims that these statements were incorrect and misleading, were not made by the prosecutor in his role as advisor, and, therefore, were unsworn testimony. We disagree with defendant for several reasons. First, defendant has distorted the statements of which he complains by presenting them out of context. Second, the statements were made during or after Detective Musial’s testimony and constituted either answers to jurors’ questions or comments aimed at aiding and advising the jurors in their investigation. Third, the factual information contained in the prosecutor’s statements had already, for the most part, been placed before the grand jury by Detective Musial during his testimony.

Defendant’s reliance on United States v. Gold (N.D. Ill. 1979), 470 F. Supp. 1336, to argue that a prosecutor cannot submit unsworn testimony before the grand jury while also acting as the agent of the prosecuting authority is totally misplaced. In Gold, the prosecutorial misconduct, which resulted in a dismissal of defendants’ indictment, was based on a conflict of interest. A staff attorney from the Environmental Protection Agency (EPA) acted as a special attorney for the justice department in a criminal investigation while also working on the EPA’s administrative proceeding against the same defendants. In these capacities, he appeared both as a prosecutor and as a witness before the grand jury although he never obtained permission from the justice department for his dual roles. The district court determined that in attempting to perform these dual roles, the attorney was a lawyer laboring under a conflict of interest and, therefore, a person who was unauthorized to be in the grand jury room. A dismissal of the indictment was required.

No such role reversal occurred in the instant case. The prosecutor did not act as both prosecutor and witness before the grand jury but rather as prosecutor and advisor, a function of his role as prosecutor. (People v. Linzy, 78 Ill. 2d 106, 110.) To compare the conduct of the prosecutor in the case at bar with the prosecutor in Gold is ludicrous and requires no further consideration.

Even assuming, however, that some of the prosecutor’s comments could be deemed improper testimony, that testimony would not entitle defendant to a dismissal of the indictment. The grand jury is expected to indict an accused only if it decides that there is probable cause for believing that he has committed an offense. (People v. Rodgers (1982), 92 Ill. 2d 283, 288.) Here, Detective Musial testified as to the intricate plan devised by the defendant to murder Stanley Fry and defendant’s solicitation of Jeffrey Witzke to aid him in carrying out that plan. During his testimony, Musial told the jurors about his interviews with Fry and Witzke, Witzke’s judicially authorized taped conversations with defendant, and the crime lab analysis of the cyanide-laced sandwich. Musial’s sworn testimony alone was sufficient to indict defendant for solicitation to commit murder, attempted murder, and conspiracy and creates considerable doubt that the prosecutor’s remarks, even if improper, resulted in substantial injustice to defendant.

We conclude that the comments cited by defendant neither separately nor cumulatively appear to have pressured or influenced the grand jury to return the indictment against defendant and that the prosecutor’s remarks were made in the exercise of his function as advisor to the grand jury. Based on the transcript of the grand jury proceedings, no dismissal of the indictment is required.

Defendant next contends that the trial court erred in failing to suppress the “fruits” of the eavesdropping authorization. Defendant maintains that the petition to obtain the authorization was defective because it consisted of a summary of conversations between Witzke and defendant, which were recorded by Witzke, on his own and without authorization, on June 11, 1986. It is defendant’s position that since the June 11 tapes, used to obtain the eavesdropping authorization, were tainted, the authorization itself was invalid, and all evidence obtained as a result of the authorization should have been suppressed.

The Illinois eavesdropping statute prohibits the use of an eavesdropping device to record all or part of any conversation unless all parties to the conversation consent or unless one party consents and prior judicial authorization is obtained in accordance with statutory directives. (Ill. Rev. Stat. 1985, ch. 38, par. 14 — 2.) Any evidence obtained in violation of the eavesdropping statute is inadmissible in any civil or criminal trial. (Ill. Rev. Stat. 1985, ch. 38, par. 14 — 5.) The Illinois Supreme Court has held that section 14 — 5 expressly adopts the “fruit of the poisonous tree doctrine” (Wong Sun v. United States (1963), 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417), which requires the suppression of evidence obtained as the result of a violation of the eavesdropping statute. (People v. Maslowsky (1966), 34 Ill. 2d 456, 464.) This exclusionary rule applies only to information derived from a process initiated by an unlawful act and does not extend to evidence obtained from an independent source. People v. Kezerian (1978), 63 Ill. App. 3d 610, 620, rev’d on other grounds (1979), 77 Ill. 2d 121.

In the instant case both Stanley Fry and Jeffrey Witzke consented to the recording of conversations between defendant and themselves on June 12, 1986. On that date, Detective Musial appeared before a trial judge and, based on his sworn petition and the consents of Fry and Witzke, obtained judicial authorization for the use of eavesdropping devices to record those conversations. Defendant maintains that Musial’s petition was based strictly on recordings which Witzke made of conversations between defendant and Witzke on June 11, 1986, and which the trial court ruled were obtained illegally. However, our review of Musial’s petition convinces us that the tapes did not comprise a primary basis for the petition and that when that portion of the petition which made reference to the June 11 tapes was “carved out” from the petition, as the trial judge suggested, a sufficient basis remained for the issuance of the eavesdropping order.

The petition set forth conversations Musial had with Fry and with Witzke, wherein the officer learned of the business transaction between Fry and the defendant. The petition stated that through these conversations the officer found out that Fry gave defendant “$27,000 [sic]” for a joint investment in certain securities, that Fry subsequently discovered the defendant had never opened a joint investment account but had lost the money on investments made in defendant’s name only, that Witzke phoned Fry on June 11, 1986, impersonating Barry Haigh, a broker with the Chicago Mercantile Exchange, to tell Fry that his investments with defendant were worth $700,000, and that later, in response to an earlier phone call Fry had placed to the real Barry Haigh, Fry learned that defendant had never made any investments with the broker. Additionally, the petition stated that, in discussions with Witzke, the officer learned of defendant’s plan to murder Fry. Witzke explained how the murder was to be performed, what steps had been taken in preparation for the murder, and what amount defendant had agreed to pay Witzke for his help. The officer saw the receipt for the cyanide which Witzke had been instructed by defendant to purchase and observed the cyanide in Witzke’s car trunk. Petitioner related that the Joliet State Crime Lab analyzed the cyanide and confirmed that it was, in fact, cyanide.

During the first three pages of Musial’s petition, the officer makes constant references to conversations he had with Fry and Witzke and to the information he gleaned from these conversations. At the very end of the third page of his petition, Musial states:

“Witzke also told me that he had secretly taped some of his conversations with Seehausen on June 11, 1986, which was done prior to his contact with the police or any law enforcement authority. Your affiant has listened to these tapes which confirmed the details related to me by Witzke.”

This statement does not establish, as defendant claims, that Detective Musial was influenced by the June 11 tapes in preparing his petition. As related in his petition, Musial participated in conversations not only with Witzke but also with Fry before preparing the petition. Musial’s knowledge of the murder attempt was derived from these conversations and was only later substantiated by the June 11 tapes. Consequently, we believe the petition establishes that the officer’s knowledge of the murder attempt was independent of the eavesdropping by Witzke on June 11. The “fruit of the poisonous tree” doctrine (Wong Sun v. United States (1963), 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417) cannot apply where, as here, the petitioner’s knowledge was derived not from Witzke’s recordings but from conversations Musial had with Fry and Witzke.

Based on the information given in Musial’s petition and made under oath, it is evident that a sufficient basis existed for the eavesdropping authorization without the use of Witzke’s illegally obtained June 11 tapes. Furthermore, the record indicates that both Fry and Musial appeared before the judge issuing the eavesdropping authorization, were placed under oath, and gave testimony. This fact, coupled with Musial’s petition, leads to the presumption that the eavesdropping authorization proceedings and the conclusions reached therein were valid. People v. Moore (1980), 90 Ill. App. 3d 760, 764.

We conclude that the “totality of the circumstances,” which is an appropriate analysis for determining “reasonable cause” on an application for use of an eavesdropping device (People v. Wrestler (1984), 121 Ill. App. 3d 147, 155), was such that the issuing judge had a substantial basis for determining that reasonable cause existed for the issuance of an order authorizing use of eavesdropping devices. Therefore, the evidence obtained as a result of the eavesdropping authorization was not tainted.

Defendant, however, also argues that the tapes obtained as a result of the emergency eavesdropping authorization should be suppressed because the issuing judge failed immediately to review the tapes once they were returned to him as required by section 108A-7(b) of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 108A — 7(b)). The tapes were obtained during the afternoon and evening hours of June 12, 1986. An order filed June 13, 1986, and signed by the issuing judge indicates that the tapes were returned to the court on that date by 10 a.m. and sealed by the clerk of the circuit court to be reopened for review by the court at a later date. An order dated June 19, 1986, indicates that the issuing judge had reviewed the tapes but does not establish the date on which he listened to them.

Section 108A — 7(b) of the Code states in relevant part:

“Immediately after the expiration of the period of the order or extension or, where the recording was made in an emergency situation as defined in Section 108A-6, at the time of the request for approval subsequent to the emergency, all such recordings shall be made available to the judge issuing the order or hearing the application for approval of an emergency application.
The judge shall listen to the tapes, determine if the conversations thereon are within his order or were appropriately made in emergency situations, and make a record of such determination to be retained with the tapes.” (Ill. Rev. Stat. 1985, ch. 38, par. 108A — 7(b).)

Defendant interprets this statute to mean that upon return of the tapes to the issuing judge, the judge must immediately review the tapes. We, however, do not glean that interpretation from the statute. Rather, we are in agreement with the State, which argues that the concept of “immediacy” refers to the “immediate return” of the tapes to the court and not to the “immediate review” of those tapes.

Section 108A — 7(b) states in relevant part: “Immediately after expiration of *** the order *** all such recordings shall be made available to the judge issuing the order ***.” (Ill. Rev. Stat. 1985, ch. 38, par. 108A — 7(b).) In so stating, the statute requires the police immediately to return to the court any tapes obtained by means of the eavesdropping authorization order. This requirement of immediacy is designed to prevent any tampering with the recordings and to preserve the integrity of the tapes. (See People v. Nieves (1982), 92 Ill. 2d 452, 454-63 (wherein the supreme court states that the statutory purpose of immediacy in section 108A — 7(b) refers to the immediate return to the court of recordings made pursuant to an eavesdropping order and the sealing of those recordings to prevent tampering, alteration, or editing and to preserve the integrity of the recordings).) That purpose was accomplished in the instant case, as evidenced by the court’s order showing that the tapes were delivered to the court by 10 a.m. on June 13, 1986, and sealed at that time.

We conclude that the trial judge did not err in admitting the tapes attained as a result of the eavesdropping authorization because the authorization procedures, from the petition stage through the retention and review stages, were followed.

Defendant’s final contention is that the trial court erred in failing to charge the jury with IPI Criminal 2d No. 3.17, dealing with accomplice testimony. IPI Criminal 2d No. 3.17 provides:

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”

Defendant maintains that the trial court’s failure to charge the jury with this instruction left the jury without legal direction as to the weight the testimony of Jeffrey Witzke, the State’s key witness, was to be accorded and as to the jury’s legal obligation to scrutinize Witzke’s testimony.

An accomplice is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime. (People v. Lashmett (1984), 126 Ill. App. 3d 340, 346.) The test for determining whether one is an accomplice is whether he could have been indicted for the offense either as a principal or on an accountability theory. (People v. Travis (1981), 94 Ill. App. 3d 983, 991.) To be accountable, a person must possess the mental state required for the offense, and before or during the offense aid in its commission. (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c); People v. Chaney (1987), 157 Ill. App. 3d 552, 562.) However, a person is not so accountable if before the commission of the offense

“he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 5-2(c)(3).)

If a witness is not an accomplice under the accepted test, it is not error for the trial court to refuse to give a tendered instruction regarding the testimony of an accomplice. Travis, 94 Ill. App. 3d at 991.

In the instant case, Witzke could not have been indicted for the offense of attempted murder as a principal or on an accountability theory. Witzke did not possess the necessary mental state as evidenced by his contacting Fry to tell him of defendant’s murder plan and by his cooperating with the police to gather evidence against defendant. The first sentence of IPI Criminal 2d No. 3.17 states in pertinent part: “When a witness [has been] involved in the commission of a crime with the defendant ***.” (IPI Criminal 2d No. 3.17.) As the trial judge pointed out, this phrase does not apply to Witzke under the circumstances of this case, since by his timely warning Witzke terminated his involvement in defendant’s scheme prior to its commission.

Nevertheless, the defendant argues that certain acts performed by Witzke facilitated defendant’s offenses prior to Witzke’s withdrawal from defendant’s scheme and established the necessary common criminal intent between defendant and Witzke. Therefore, defendant asserts, IPI Criminal 2d No. 3.17 should have been given. We do not agree.

Giving the accomplice instruction depends upon the circumstances of each case. (See People v. Krush (1983), 120 Ill. App. 3d 614, 618.) Unlike other cases where an individual knew of a defendant’s intention to kill another but did nothing to prevent it, Witzke both abandoned the intention he had to help defendant kill Fry and took action to prevent that killing. In People v. Grabbe (1986), 148 Ill. App. 3d 678, the testimony of Vicki McCallister established that she knew defendant, Fred Grabbe, intended to kill his wife but that she did nothing to prevent it. In fact, shortly before the date of the murder, defendant twice told McCallister that he intended to kill his wife. On the date of the murder, McCallister hid while defendant choked his wife to death and then helped defendant dispose of the body.

At trial the court first indicated that it would give the accomplice testimony instruction because McCallister had also been charged with murder. Later, however, when it was revealed that charges against McCallister were brought by information and that no probable cause hearing had ever been held, the court decided it would not give the instruction. The appellate court determined that the lower court’s refusal to give the instruction was error because McCallister knew prior to the murder that defendant intended to kill his wife and later aided him in disposing of her body. These facts established that there was probable cause to believe McCallister was guilty of murder by accountability and, therefore, was an accomplice to the offense.

In the instant case Witzke knew that defendant intended to kill Fry, but Witzke took steps to prevent Fry’s murder by contacting Fry and by agreeing to act as an informant to gather evidence against defendant. Witzke’s association with the police prevented the successful commission of the offense and relieved Witzke of accountability for the offense.

We note that the court did give IPI Criminal 2d No. 1.02, the standard credibility instruction, to the jury. As the State points out, that instruction has been found to be sufficient in instructing the jury to scrutinize a witness’ testimony where a witness was granted immunity in return for his testimony (People v. Kraman (1981), 96 Ill. App. 3d 390, 403), and, therefore, it would seem equally or even more satisfactory where, as here, the witness (Witzke) cooperated without receiving any promises of immunity.

It is the jury’s function to assess the credibility of the witnesses, to determine the weight to be credited to such evidence, and to evaluate the inferences to be drawn from it. (People v. Jarvis (1987), 158 Ill. App. 3d 415, 425.) Here, the jury heard Witzke’s testimony regarding his initial participation in defendant’s plan and his subsequent withdrawal from that plan. The jury also heard the judicially authorized recordings of the conversations between Witzke and defendant on the date of the murder attempt. We believe that this jury, which had the opportunity to hear and observe Witzke over a period of four days, was in the best position to evaluate his credibility and to determine the weight to be given to his testimony. No further cautionary instruction was required. We conclude that, under the circumstances presented in the instant case, the trial court’s refusal to give the accomplice instruction with respect to Witzke’s testimony did not constitute reversible error.

Based on all of the reasons given above, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

DUNN and REINHARD, JJ., concur.


author: JUSTICE DUNN

text:
    MICHAEL CHALEK, Plaintiff-Appellant, v. MILTON KLEIN, Defendant-Appellee.—MICHAEL E. CHALEK, Plaintiff-Appellant, v. SAM H. LEE, Defendant-Appellee.
    Second District
    Nos. 2—89—0068, 2—89—0264 cons.
    Opinion filed February 6,1990.

      Michael P. Edgerton and Patricia L. Hatfield, both of Farrell, Edgerton & Hatfield, of West Chicago, for appellant.
    Joseph M. Laraia and Kenneth D. Hubbard, both of Joseph M. Laraia & Associates, P.C., of Wheaton, for appellee Milton Klein.
    Leigh R. Pietsch, of Pietsch, Cuchna, Popejoy & Whelan, of Wheaton, for appellee Sam H. Lee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Michael Chalek, appeals from orders of the circuit court of Du Page County, dismissing two separate lawsuits against defendants, Sam Lee and Milton Klein, on the basis of lack of personal jurisdiction. This court granted plaintiff’s motion to consolidate the appeals because the issue and facts are similar. The issue is whether out-of-State residents who order a product from an Illinois business may be sued by that business in an Illinois court. We hold, trader the facts of these cases, that the trial court correctly determined that it lacked personal jurisdiction and therefore affirm the dismissal of both cases.

The facts of these cases are essentially undisputed. Plaintiff operates a sole proprietorship in Oak Brook, Illinois, and sells a computer software system for use by commodities traders. Defendant Lee, a California resident, and defendant Klein, a New York resident, both ordered the software system. Lee sent plaintiff a check for $3,500; Klein’s company, Mattco Equities, Inc., sent plaintiff a check for $3,000. After receiving the software, Lee and Klein decided it was not satisfactory, returned it to plaintiff, and stopped payment on the checks. Plaintiff subsequently filed separate suits against Lee and Klein. Lee was served with summons at a California address, and Klein was served at a New York address.

Both defendants filed motions to dismiss the complaints based upon a lack of personal jurisdiction. The motions were supported by the affidavits of Lee and Klein. Lee’s affidavit states that he read an advertisement for plaintiff’s software system in a magazine while he was in California. Lee then placed a telephone call to plaintiff and asked plaintiff to send him the software at his California address. Plaintiff did so by means of a commercial carrier. Lee sent plaintiff a check for $3,500, drawn on a California bank. After Lee concluded that the merchandise was unsatisfactory, he returned it and stopped payment on the check. The affidavit states further that Lee was a California resident at all relevant times, had never worked or lived in Illinois, and had no assets in Illinois.

Klein’s affidavit states that he read about plaintiff’s product in a commodities magazine in New York. Klein placed a telephone call to plaintiff and inquired about the software. Plaintiff then sent some advertisements and an order form to Klein’s company, Mattco Equities, Inc., in New York. After receiving these materials, Klein placed another phone call to plaintiff in order to find out further information. Klein then mailed in the order form and a check for $3,000 to plaintiff’s office in Illinois. Klein subsequently received the software program in New York and determined that it did not function satisfactorily. He returned the software to plaintiff and stopped payment on the check. Klein and Mattco had no other contacts with plaintiff. Although Klein’s affidavit indicates he may have been acting on behalf of a corporation, he was sued individually in the case at bar.

In both cases, the trial court concluded that defendants were not subject to the in personam jurisdiction of the Illinois courts and dismissed plaintiff’s complaints. Plaintiff filed timely notices of appeal from the dismissal orders.

Plaintiff asserts that personal jurisdiction over both defendants exists under section 2 — 209(a)(1) of the Code of Civil Procedure, which states as follows:

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209(a)(1).)

Even if the long arm statute permits the exercise of jurisdiction over a nonresident defendant, such an exercise must also be consistent with the due process clause of the fourteenth amendment, which limits the power of State courts to enter valid personal judgments against nonresident defendants. (Wiles v. Morita Iron Works Co. (1988), 125 Ill. 2d 144, 149.) In Wiles, our supreme court stated that it was unnecessary to determine whether defendant’s activities met the requirements of the long arm statute because the due process clause barred any exercise of jurisdiction over defendant. (Wiles, 125 Ill. 2d at 149.) Since we also conclude that subjecting defendants to the jurisdiction of Illinois courts would be inconsistent with due process, it is not necessary to decide whether jurisdiction may be predicated under the long arm statute.

Under the due process clause, a defendant is not subject to a judgment in personam in the forum State unless he or she has certain minimum contacts with that State such that bringing the action there does not offend “traditional notions of fair play and substantial justice.” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.) The due process clause requires that individuals have fair warning that an activity or activities could subject them to the jurisdiction of a foreign State. (Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 472, 85 L. Ed. 2d 528, 540, 105 S. Ct. 2174, 2181-82.) This “fair warning” requirement provides a degree of predictability to the legal system which allows individuals to structure their activities with some degree of assurance as to where they will or will not be rendered liable to suit in another State as a result of their conduct. (Burger King, 471 U.S. at 472, 85 L. Ed. 2d at 540, 105 S. Ct. at 2181.) This requirement is met if defendant has purposefully directed his or her activities at residents of the foreign State and the litigation results from injuries relating to those activities. (471 U.S. at 472, 85 L. Ed. 2d at 540-41, 105 S. Ct. at 2182.) It is essential to a finding that in personam jurisdiction exists “that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla (1958), 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228,1240.

The facts in Empress International, Ltd. v. Riverside Seafoods, Inc. (1983), 112 Ill. App. 3d 149, are quite similar to those of the cases at bar. In Empress International, plaintiff sent direct mail advertisements to defendant, a Wisconsin corporation. Defendant then placed two orders for delivery of frozen lobster with plaintiff’s Chicago office, which shipped the lobster to defendant in Wisconsin. Plaintiff subsequently filed suit against defendant in the circuit court of Cook County for payments allegedly due on these orders.

The court noted in Empress International that in prior cases Illinois courts had held that in personam jurisdiction existed if it appeared the nonresident defendant had initiated the transaction, the contract was formed in Illinois, and performance or a major part of it was to take place in Illinois (see AAAA Creative, Inc. v. Sovereign Holidays, Ltd. (1979), 76 Ill. App. 3d 514; Ward v. Former, Inc. (1975), 27 Ill. App. 3d 22; Colony Press, Inc. v. Fleeman (1974), 17 Ill. App. 3d 14). Examining these factors, the court stated that the direct mail advertisements sent by plaintiff to defendant were mere solicitations and that defendant initiated the transactions by placing the two orders. (Empress International, 112 Ill. App. 3d at 154.) It also determined that the contracts were formed in Illinois when plaintiff accepted defendant’s orders and were largely performed in Illinois because the lobster was shipped from Chicago. (112 Ill. App. 3d at 154.) Because of these factors and the fact that defendant dealt with an entity that it knew or should have known was an Illinois resident, the court concluded defendant had sufficient contacts with Illinois to subject it to the in personam jurisdiction of Illinois courts with regard to plaintiff’s lawsuit. 112 Ill. App. 3d at 154-55.

The Empress International criteria subject almost all out-of-State residents who order a product by mail or telephone from an Illinois resident to the jurisdiction of Illinois courts merely because they have entered into contracts to purchase with residents of this State. Under that court’s reasoning, a seller does not initiate a transaction by merely sending advertising materials to a prospective buyer. Thus, in the context of a mail or telephone order purchase, the buyer will almost inevitably be the one who initiates the transaction by placing the order. According to the logic of Empress International, the contract will be formed in Illinois when the order is accepted there, and a large part of the performance will be in Illinois if the product is shipped from this State, which will generally be the case. Therefore, under these criteria, in personam jurisdiction will exist over out-of-State purchasers merely by virtue of the fact that they contracted to purchase a product from an Illinois resident.

Such a result is plainly at odds with the statement of the United States Supreme Court in the Burger King case that the mere fact an out-of-State individual has entered into a contract with a resident of the forum State is not sufficient by itself to subject the nonresident to the in personam jurisdiction of the forum’s courts. (Burger King, 471 U.S. at 478, 85 L. Ed. 2d at 544-45, 105 S. Ct. 2185.) Furthermore, the court in Burger King expressed concern for the plight of out-of-State consumers (471 U.S. at 485, 85 L. Ed. 2d at 549, 105 S. Ct. at 2189) and, in this context, stated that the due process clause prohibits the enforcement of rules that would unfairly permit sellers to obtain judgments by default against unwitting customers (471 U.S. at 486, 85 L. Ed. 2d at 550, 105 S, Ct. at 2189-90). As we have seen, however, the Empress International approach almost inevitably leads to the exercise of jurisdiction over out-of-State consumers who order goods by telephone or mail from an Illinois company. This is true regardless of the amount of the purchase. In light of the above statements by the United States Supreme Court in Burger King, we believe the approach taken in Empress International and the other Illinois appellate decisions cited therein must be rejected with regard to the question of when Illinois courts may exercise in personam jurisdiction over out-of-State residents who purchase goods from an Illinois resident.

One approach that other jurisdictions have taken is to distinguish between active purchasers and passive purchasers. (See, e.g., Whittaker Corp. v. United Aircraft Corp. (1st Cir. 1973), 482 F.2d 1079, 1084; In-Flight Devices Corp. v. Van Dusen Air, Inc. (6th Cir. 1972), 466 F.2d 220, 233; Money-Line, Inc. v. Cunningham (1981), 80 A.D.2d 60, 63, 437 N.Y.S.2d 816, 819-20; Al-Jon, Inc. v. Garden Street Iron & Metal, Inc. (Iowa 1981), 301 N.W.2d 709, 714; Vacu-Maid, Inc. v. Covington (Okla. App. 1974), 530 P.2d 137, 142; Yankee Metal Products Co. v. District Court (Okla. 1974), 528 P.2d 311, 312-13.) Under this approach, if the nonresident buyer is a passive party who merely places an order by mail, telephone, or to a salesperson and accepts the seller’s price as stated in advertising or other forms of solicitation, the courts of the seller State will not be able to exercise in personam, jurisdiction over the buyer. (In-Flight Devices Corp., 466 F.2d at 233, Al-Jon, Inc., 301 N.W.2d at 714; Vacu-Maid, Inc., 530 P.2d at 143.) If the buyer departs from a passive role by dictating or vigorously negotiating contract terms or by inspecting production facilities, the unfairness which would be associated with the exercise of long arm jurisdiction over that buyer dissipates, and he or she will be subject to personal jurisdiction in the courts of the seller’s State. InFlight Devices Corp., 466 F.2d at 233.

The type of conduct which would characterize an active purchaser is far more typical in dealings between major business organizations than in transactions in which a consumer or even a small shopkeeper is the purchaser. (In-Flight Devices Corp., 466 F.2d at 233.) Distinguishing between active and passive purchasers therefore protects the ordinary mail order consumer who merely orders an item of merchandise from a company in a distant State from having to submit to the jurisdiction of the courts of that State while at the same time it protects sellers who manufacture custom-built products according to a nonresident buyer’s specifications. (Yankee Metal Products Co., 528 P.2d at 313.) Furthermore, under this approach, individuals from other States who order goods from Illinois residents will not be subject to the jurisdiction of our courts merely because they have entered into a contract with Illinois residents. Since this approach addresses the due process concerns expressed by the United States Supreme Court in Burger King, and since it allows potential nonresident defendants to structure their conduct with some degree of assurance as to whether it will render them liable to suit in Illinois (Burger King, 471 U.S. at 472, 85 L. Ed. 2d at 540, 105 S. Ct. at 2182), we will adopt it and apply it in the case at bar.

The record reveals that both defendants are classic passive purchasers who merely ordered a product from an Illinois business. While defendants inquired about the product over the telephone, there is no evidence that they negotiated the terms of their eventual agreements with plaintiff, came into this State to inspect plaintiff’s facilities, or in any other way departed from the role of a passive buyer. The party who wishes to impose jurisdiction has the burden of establishing a valid basis for the exercise of personal jurisdiction over a nonresident defendant. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 310.) Plaintiff failed to meet this burden in the cases at bar. The circuit court correctly determined that it lacked in personam jurisdiction over defendants and properly dismissed plaintiff’s complaints.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT, P.J., and McLAREN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL MEDINA, Defendant-Appellant.
    Second District
    No. 2—88—0455
    Opinion filed February 6, 1990.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Michael Medina, was charged by indictment with unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1987, ch. SG1^, par. 1401(a)(2)), unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(a)(2)), armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2), and unlawful possession of a hypodermic syringe and needle (Ill. Rev. Stat. 1987, ch. 38, par. 22 — 50). The indictments were based on evidence obtained during a search of defendant’s apartment pursuant to a search warrant. The complaint for the search warrant was supported by the affidavit of a detective of the Lake County sheriff’s department.

Prior to trial, defendant moved to quash the search warrant and suppress the evidence seized in the search on the ground that the police officer/affiant deliberately omitted material facts from the affidavit in support of the search warrant. The trial court denied defendant’s request for an evidentiary hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, and denied the motion to quash. The cause proceeded to a stipulated bench trial, and defendant was convicted of unlawful possession of a controlled substance with intent to deliver and was sentenced to 18 years’ imprisonment. On appeal, defendant contends that he was improperly denied a Franks hearing.

On August 17, 1987, Detective Martin Grum of the Lake County sheriff’s department executed a complaint for a search warrant. In support of the complaint, Grum submitted his own affidavit. The affidavit stated that Grum had a reliable informant who had informed him that, within the last 12 hours, he was in defendant’s residence; that he witnessed a white female come to the apartment and ask for a “six-pack,” which is the common street term for one-sixteenth ounce of cocaine; that defendant went into his bedroom and came back with a large clear plastic bag; and that defendant took out a quantity of white powdery substance believed to be cocaine, placed the white powdery substance into a clear plastic bag and gave it to the woman, after which she gave him $100. The affidavit further stated that the informant is familiar with the effects, taste and texture of cocaine, having used it approximately 75 times, that he had a sample of the substance which was in the large clear plastic bag and that he believed the substance was cocaine.

The affidavit also stated that Officer Gram had known the informant for six months, that the informant had given him information approximately 20 times, and that the information had led to ongoing investigations and two arrests. Further, the informant had known defendant for approximately three months, had purchased cocaine from defendant approximately 10 times, and had witnessed approximately 20 other cocaine purchases from defendant.

Based on these averments, the search warrant was issued. Officer Gram and other police officers executed the search warrant. A large quantity of cocaine was discovered in defendant’s apartment, and defendant was arrested.

Defendant filed several motions to quash the search warrant and the arrest and to suppress the evidence. The third motion to quash alleged that the unnamed informant referred to in Officer Gram’s affidavit was John Mira, a convicted felon who is currently on probation. The motion further stated that Officer Grum knew of Mira’s record and knew, therefore, that Mira was unreliable; and that Officer Gram omitted the informant’s criminal record from the affidavit in an attempt to mislead the issuing judge.

At the hearing on defendant’s motion, the trial court determined that defendant had not made an adequate preliminary showing entitling him to an evidentiary hearing pursuant to Franks v. Delaware. Defendant appeals this ruling.

There is a presumption of validity with respect to an affidavit supporting a search warrant (People v. Stewart (1984), 105 Ill. 2d 22, 39); however, a party may challenge the truthfulness of an affidavit. To overcome the presumption of validity, defendant must make a substantial preliminary showing that false statements were deliberately included in the affidavit, or included with a reckless disregard for the truth, and that the statements were necessary to a finding of probable cause; if these conditions are met, defendant is entitled to an evidentiary hearing on the issue. Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676; Stewart, 105 Ill. 2d at 39.

The linchpin of the Franks procedure is the “substantial preliminary showing” requirement. (People v. Lucente (1987), 116 Ill. 2d 133, 147.) To mandate an evidentiary hearing, the defendant’s attack must be more than conclusory; there must be allegations of deliberate falsehood or reckless disregard for the truth, and these allegations must be accompanied by an offer of proof; these allegations should point out specifically the portion of the warrant affidavit that is claimed to be false, and they should be accompanied by a statement of supporting reasons; affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. (Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684.) If these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Franks, 438 U.S. at 171-72, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684.

The reasoning of Franks logically extends to cases where the challenge to the affidavit is based on material omissions. (Stewart, 105 Ill. 2d at 43; 2 W. LaFave, Search & Seizure §4.4(b), at 194 (2d ed. 1987).) A deliberate omission of a material fact can be a reckless disregard for the truth. People v. Hothersall (1981), 103 Ill. App. 3d 183,187.

To establish a right to an evidentiary hearing based on an omission, defendant must show that the omitted information was material to the probable cause determination and that it was omitted for the purpose of misleading the magistrate. (Stewart, 105 Ill. 2d at 44.) Facts are material and, hence, must be disclosed if their omission would make the affidavit substantially misleading; facts must be deemed material for this purpose if, because of their inherent probative force, there is a substantial possibility that they would have altered a reasonable magistrate’s probable cause determination. People v. Kurland (1980), 28 Cal. 3d 376, 385, 618 P.2d 213, 218, 168 Cal. Rptr. 667, 672.

The alleged, deliberate, material omission in this case is that the police informant is a convicted felon currently on probation. Defendant contends that this fact reflected on the informant’s credibility and would have affected the issuing magistrate’s probable cause determination, especially in light of the informant’s poor track record as a tipster.

In this case, defendant filed three motions to quash the search warrant. The first motion, which was later withdrawn, alleges only that there was an alteration made in the warrant as to the address to be searched. There was a hearing on that motion, and Officer Gram and the issuing magistrate testified to the circumstances surrounding the alteration of the address on the search warrant. The second motion to quash alleged that defendant knew of two persons who would testify that they were in the searched premises with defendant during the period alleged in the complaint; that they saw an unknown female enter and ask for a “six-pack”; that she was told to leave, and she left without purchasing anything; and that they did not see a white powdery substance while they were with defendant. The trial court ruled that the second motion had not presented a sufficient basis for a Franks hearing. Defendant filed a third motion to quash which alleged that the informant was John Mira, a convicted felon currently on probation, and that the officer/affiant knew these facts and failed to relate them to the issuing magistrate for the purpose of misleading him. The denial of the third motion to quash is the subject of this appeal.

Pursuant to Franks, we must first determine whether defendant has made a showing that there was an omission and the omission was made for the purpose of misleading the magistrate about the informant’s credibility. As defendant points out, it is difficult for an accused to prove that an officer/affiant acted intentionally or with reckless disregard, rather than negligently, in omitting information from an affidavit. We agree that, where facts are clearly critical to the finding of probable cause, recklessness may be inferred from the proof of the omission itself. See United States v. Martin (5th Cir. 1980), 615 F.2d 318, 329.

The problem with defendant’s motion is that he has utterly failed to support his contention that an omission was made. In the third motion to quash, defendant makes the bald allegations that the informant is John Mira and that John Mira is a convicted felon. No affidavits or statements or supporting reasons were offered with the motion. The State never admitted those facts, and defendant made no showing as to how he arrived at those conclusions and offered no evidence in support of his conclusions. Franks dictates that allegations should be accompanied by a statement of supporting reasons and affidavits or sworn statements should be furnished or their absence satisfactorily explained. Defendant has presented no evidence to support his conclusions concerning the identity of the informant and his alleged criminal record.

Defendant asserts that he did make an offer of proof to support his allegations. The offer of proof he refers to, however, is his statement in the second motion that he had two witnesses who would deny that drug deals had occurred in defendant’s apartment during the relevant period. Defendant asserts that this information would attack the credibility of the informant. Although these witnesses might be valuable witnesses for the defense, their offer of proof concerning what occurred in defendant’s apartment is irrelevant to the issues of the informant’s identity or criminal record, the officer/affiant’s knowledge of the informant’s identity and record, and the officer/affiant’s motive in omitting these facts from the affidavit, which are the issues raised in defendant’s motion. Furthermore, a search warrant must be tested on the basis of what the police and the issuing magistrate knew at the time the search warrant was applied for. (People v. Free (1983), 94 Ill. 2d 378, 401.) There are no allegations that the police officer knew that these two witnesses existed or what their stories might be.

It would be reasonable to assume that Officer Grum knew the identity and record, if any, of an informant he had worked with for six months. The problem with defendant’s motion is that he has given us no reason, beyond an unsupported allegation, to believe that the informant is actually a convicted felon. Although, under certain circumstances, an officer/affiant’s reckless disregard for the truth can be inferred from proof of the omission itself, in this case defendant has made no showing that there was, in fact, an omission.

Even if we were to assume that defendant’s allegations were supported in some way, the question would still remain whether this omission was material, that is, whether it affected the probable cause determination. Defendant asserts that the search warrant rests solely on the informant’s story and the issue of his credibility is crucial. Defendant argues that the informant’s police record is strong evidence of his unreliability, especially in light of his poor record as an informant. We do not consider, however, that the informant’s record as a tipster is deficient.

Officer Gram’s affidavit states that he had known the informant for six months and that the informant gave him 20 tips which led to ongoing investigations and two arrests. Defendant assumes that, because only two arrests have resulted from the informant’s tips so far, the remaining 90% of the tips were incorrect. He concludes, therefore, that the informant is unreliable. We disagree. In the first place, the affidavit indicates that tips have led to ongoing investigations. These investigations may lead to further arrests. Furthermore, the fact that there were no more arrests does not in any way indicate that the other tips were incorrect. They may just as easily have been cumulative, or the police may have decided against acting upon them for any number of reasons, or the police may have been unsuccessful in acting on the tips, again for any number of reasons unrelated to the correctness of the tips. Contrary to defendant’s suggestion, the fact that a tip itself does not establish probable cause to arrest does not render the tip incorrect. Further, the informant’s track record as a tipster was fully set forth for the issuing magistrate’s consideration.

Additionally, given the affidavit as a whole, we believe that the issue of the possible unreliability of the informant was adequately presented. The affidavit sets out that the informant has been a police tipster for six months, that he has used cocaine on approximately 75 occasions, that he has purchased cocaine on approximately 10 occasions, and that he has witnessed numerous drug transactions. Given these facts, the issuing magistrate was not likely to be misled about the informant’s character. (See Kurland, 28 Cal. 3d at 393, 618 P.2d at 223-24, 168 Cal. Rptr. at 677-78.) We consider that even if the omitted information had been included in the affidavit, it would not have affected the issuing magistrate’s probable cause determination. Therefore, defendant has also failed to establish that the alleged omission was material.

In summary, defendant failed to provide any support for his bald allegation that the officer/affiant deliberately omitted from the affidavit the criminal record of the informant, and he failed to establish that, even if there had been a deliberate omission, it would have affected the issuing magistrate’s probable cause determination. Therefore, defendant failed to make a substantial preliminary showing that the search warrant was not properly issued.

For the aforementioned reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

McLAREN and REINHARD, JJ., concur.