author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY WILLIAMS, a/k/a Princeton Dorsey, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—1385
    Opinion filed June 8,1992.

      Rita A. Fry, Public Defender, of Chicago (Stephen Richards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, Sara Dillery Hynes, and Jeanne Lobelson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Anthony Williams, a/k/a Princeton Dorsey, was found guilty of murder and armed robbery. Defendant was sentenced to natural life imprisonment. Defendant now appeals. For the reasons which follow, we affirm.

The record on appeal indicates the following facts.

MOTION TO QUASH ARREST AND SUPPRESS EVIDENCE

Prior to trial, the trial court heard defendant’s motion to quash his arrest and suppress evidence. At this hearing, the sole defense witness was Detective David Garcia, who testified that defendant was arrested without a warrant on the 1400 block of Madison in the vicinity of Grand and Ashland during the early morning hours of July 15, 1985.

The State called Detective Thomas Blomstrand, who testified that at 10:30 p.m. on July 14, 1985, he was called to the scene of a homicide at the Grand-Ashland Hotel, located at 466 N. Ashland Avenue in Chicago. Blomstrand was directed by other officers at the scene to room 210, where he saw the body of Van Musgrove, who rented room 210. Blomstrand noted a knife lying on Musgrove’s shoulder and blood on the floor and walls of the room.

Blomstrand then spoke with Debra Collins, the hotel manager. Collins stated that her cousin had complained of a strong odor on the third floor. When Collins did not get any response at room 210, she opened the door and discovered Musgrove’s body.

Collins further stated that she then spoke with a man she knew as “Tyler,” or “Prince,” an African-American male in his thirties who lived next door in room 211. Collins stated that “Prince” tried to contact Musgrove’s family. When Collins stated that she was going to call the police, “Prince” hurriedly left the hotel. According to Blomstrand, this man had told Collins that he had killed four people and had just gotten out of jail for murder. Collins also told him that the man from room 211 lived with a transvestite named “Kim Bouchee”; Musgrove lived with a transvestite named “Che-Che.” Janet Striblin told Blomstrand that Musgrove had been in an argument with the occupants of room 211 a couple of days earlier; the three men had been drinking at the time. Ceasar Grant, Collins’ husband, told Blomstrand that Mus-grove had no visitors recently.

Blomstrand then testified that the police examined the common areas of the hotel. Blomstrand stated that what appeared to be blood was found in the hallway outside room 210 and in the common washroom on that floor. There also appeared to be a patent fingerprint in blood on the door to room 211. After gaining entrance to room 211, Blomstrand noticed another patent fingerprint in blood on the inside of the door and an apparent drop of blood on the quarter round behind the door.

Officer Joseph Santoro testified that at about midnight on July 14, 1985, he and Officer David Garcia spoke with Blomstrand at 466 N. Ashland Avenue. Blomstrand told them that two possible suspects were the man Collins called “Tyler” and “Prince” and the transvestite named “Kim.” From prior experience, Santoro knew “Tyler” was a transvestite’s alias and so informed Blomstrand.

Officer David Garcia testified that he and Officer Santoro began to look for the two suspects in an area on Madison Street that Kim Bouchee was known to frequent. A person Garcia knew from prior contacts directed the officers to an abandoned building on the 1400 block of Madison where Bouchee was believed to be working as a prostitute. The officers found Bouchee inside and took him back to their car. Garcia returned to Madison Street to give his contact a number to phone if he saw “Prince.” The officers took Bouchee to Area 4 headquarters, where they noted apparent blood on Bouchee’s purse and shoes.

While at headquarters, the officers heard by radio that “Prince” was in the vicinity of the 1400 block of Madison. Garcia and his sergeant responded to the call; Santoro remained at headquarters. En route, Garcia heard by radio that other units were also proceeding to Madison Street. When Garcia and his sergeant arrived in the area, police were already securing the area. Garcia approached his contact, who identified “Prince” from the group of individuals in the area. Garcia identified “Prince” as the defendant in court. Garcia approached defendant and asked “How is it going, Prince?” Defendant responded, “What’s up?” Defendant appeared to have blood on his shoes. Defendant was arrested and brought to headquarters.

Detective Blomstrand testified on rebuttal that he asked the hotel’s janitor to remove the door to room 211 for three reasons. First, Kim Bouchee, who had been in the argument with “Prince” and Mus-grove, had not been seen for several days. Second, Blomstrand had been advised that the patent fingerprint on the door could not be adequately lifted and analyzed with the resources available at the scene. Third, the odor which prompted the discovery of Musgrove’s body permeated the entire floor; Blomstrand was concerned that another body might be found inside.

Detective Louis Elzy, Jr. (Elzy), testified that on July 17, 1985, he spoke with Bouchee and obtained consent to search room 211; evidence technicians were sent to the scene. Detective Albert Mientus testified that a second search conducted on July 17, 1985, for which there was oral approval, resulted in the recovery of two watches and a knife.

Defendant’s motion was denied.

MOTION TO SUPPRESS STATEMENTS

The trial court also heard defendant’s pretrial motion to suppress statements he made to the police. Defendant contended that the statements were involuntary. The testimony of the State’s witnesses is presented in chronological order.

The State called Detective John Dahlberg, who was Detective Blomstrand’s partner. Detective Dahlberg testified that he met with defendant in an interview room at Area 4 headquarters at about 1:30 a.m. on July 15, 1985. He introduced himself and informed defendant of his constitutional rights. Defendant agreed to speak, but denied knowledge regarding Musgrove’s death.

The two men spoke again at about 3:15 a.m. in the same interview room, after Dahlberg again informed defendant of his constitutional rights. This second conversation lasted about 20 minutes. Defendant was not handcuffed on either occasion. Dahlberg did not obtain a written waiver of defendant’s constitutional rights on either occasion. Defendant again denied knowledge concerning Van Mus-grove’s death. Dahlberg then asked defendant to remove some of his clothes for scientific examination. Defendant was given a paper garment to wear.

At 4:45 a.m., Officer Santoro took defendant to the 13th District police station for booking and processing. Defendant was returned to the interview room by 8 a.m. on July 15,1985.

Detective C.J. Rickher III testified that at some time between 8:30 a.m. and 5 p.m. on July 15, 1985, he responded to a knock on the interview room door. Defendant indicated that he needed to use the washroom; Rickher took defendant there. Defendant was not in handcuffs at that time. Defendant asked Rickher why he was still being detained by the police. Rickher, after informing defendant of his constitutional rights, told defendant that scientific tests were ongoing. When defendant told Rickher that he had nothing else to say, Rickher left him in the interview room. The conversation was less than five minutes in duration. Rickher took defendant to the washroom on at least one other occasion, did not deny any of defendant’s requests and did not hear defendant complain of any pain.

Detective Dahlberg testified that he returned to duty at 4:30 p.m. on July 15, 1985. Defendant remained in the interview room and was not handcuffed. Dahlberg asked defendant if he wanted to use the washroom or needed food. Dahlberg gave defendant sandwiches and coffee. Defendant used the washroom between 4:30 p.m. on July 15 and 1 a.m. on the 16th. Dahlberg stated that he saw defendant at 9 p.m. on July 15 and 12 a.m. on July 16. Dahlberg described similar events regarding defendant’s treatment from 4:30 p.m. on July 16 to 1 a.m. on July 17.

Detective Elzy (who was called as a rebuttal witness) testified that he was on duty from 12:30 a.m. to 9 a.m. on July 17, 1985. Detective Elzy stated that he spoke with defendant about the Musgrove case twice during the early morning hours of July 17. On the first occasion, he was accompanied by Detective Mientus and Sergeant Louis Sykes. According to Elzy, defendant denied any involvement in the matter, but did not indicate that he wished to remain silent or wanted to see an attorney. This first conversation lasted about 10 minutes. Defendant was not handcuffed and never complained of pain to Elzy. Elzy stated that he did not hit the defendant and did not see others hit defendant with a blackjack.

At approximately 4 a.m., Elzy and Mientus questioned defendant again for about 10 or 15 minutes. Elzy further testified that he was present for another conversation which took place at about noon on July 17,1985.

Sergeant Louis Sykes (another rebuttal witness) testified that he did not actively participate in the questioning of defendant, but responded if defendant asked to use the washroom during his shift, which was between 4 p.m. and 1 a.m. Sykes stated that he never struck defendant with a blackjack.

Detective Michael O’Sullivan testified that he saw defendant being taken to the washroom on the morning of July 17, 1985. He also took food to defendant. O’Sullivan testified that he spoke with defendant for about an hour beginning at about 11 a.m. on July 17. Detectives Elzy and Mientus were also present. O’Sullivan advised defendant of his rights and informed him of facts obtained during the investigation of the Musgrove case. According to O’Sullivan, no promises of leniency were made. Defendant indicated that he wished to make a statement.

O’Sullivan spoke with defendant again at 4 p.m. on July 17. He was accompanied by Detective Mientus and Assistant State’s Attorney Wayne Jalaski. This conversation lasted between 30 and 40 minutes. Defendant was informed of his constitutional rights; however, no written waiver of these rights was obtained.

At about 6 p.m., O’Sullivan returned to the interview room with Assistant State’s Attorney Jalaski and a court reporter named Blanca Lara. During this conversation, Detective Elzy brought items into the room. Afterwards, a typewritten statement was prepared. This statement was signed by O’Sullivan, Jalaski and defendant. Defendant was then photographed; O’Sullivan identified the photograph, which was signed by O’Sullivan, defendant and one other person. O’Sullivan stated that defendant did not complain to him of pain, and he did not see defendant handcuffed or beaten by an African-American police officer. Defendant did not ask to remain silent or request an attorney.

Defendant testified that Detectives Elzy and O’Sullivan, along with two other officers, interrogated him in the interview room on the morning of July 15, 1985. Defendant described the interview room as small, with a table, a chair and a handcuff ring on the wall; the room did not have a clock or a window. According to defendant, he was handcuffed at this time. The police told him he was being charged with homicide and that they would see about getting him a manslaughter charge if he gave a statement. Defendant asked for a lawyer and the police left.

About 20 to 25 minutes later, Detectives Elzy and O’Sullivan returned to tell defendant that the public defender’s office had been notified of his request. A man defendant called Jerry West entered the room and identified himself as a public defender who would represent defendant if he wished. At this point, two more detectives took defendant to an office where they removed his clothes, except for his shorts and socks, and gave him a paper gown to wear. The detectives also cut his fingernails.

According to defendant, he was allowed to speak with Jerry West in this office, but that police officers remained just outside the open door. West told defendant there was no way defendant could get a lesser charge unless he confessed to the police. Defendant told West he did not sound like a public defender; the police returned defendant to the interview room.

About 15 minutes later, Detective O’Sullivan entered the room, accompanied by an African-American male who was about 5 feet 10 inches, 170 pounds, with black and white hair, a mustache and eyeglasses. This man identified himself as a sergeant or lieutenant. The two policemen threatened defendant. The unnamed officer struck defendant in the stomach and the side of the neck with a blackjack. Defendant stated that he was handcuffed to the wall at this time. Defendant asked for an attorney.

The police left, but officers whom defendant could not identify returned about 30 minutes later. These officers took defendant to be fingerprinted. Defendant was then returned to the interview room at headquarters and handcuffed to the wall. Defendant had no food or sleep at this time. Detective Elzy entered the room to tell defendant he should confess because they had all the evidence they needed. Elzy told defendant that Kim Bouchee was being held across the hall in another interview room. Defendant stated he did not want to talk; Elzy left the room.

Over the next eight hours or so, defendant was not given food, drink or an opportunity to use the washroom. Defendant stated that he had not been allowed to make a phone call. When defendant called out to Bouchee, Rickher came to the door and threatened that he would put his foot in defendant’s mouth if defendant continued.

O’Sullivan, Elzy, Dahlberg and an unnamed officer then entered the room to inform defendant that Bouchee had taken a lie detector test and to tell defendant that he should take one. Defendant was told that Bouchee had failed the test and that defendant would be charged with murder if he failed the test also. Defendant declined to take the test, whereupon O’Sullivan hit defendant in the stomach and kneed him in the side.

Elzy then pushed O’Sullivan from the room. Elzy, an African-American, stated that he knew defendant did not want to speak with any of the white police officers. Elzy stated that he would see to it that no further harm would come to defendant if defendant gave a statement. At this time, two other unnamed police officers entered the room to show defendant items of clothing they had found at his apartment. These officers told defendant it was his last chance to confess and be charged with manslaughter.

Detective Dahlberg entered the room about an hour later. Defendant told Dahlberg that his arm hurt from being handcuffed to the wall; Dahlberg replied that if defendant wanted medical treatment, he would have to give a statement to the police. Defendant gave a statement implicating his brother in the homicide. Dahlberg stated that this was not the answer they wanted and hit defendant in the stomach.

At this point, Elzy entered the room. Defendant again complained about numbness in his arm from the handcuff. Elzy told defendant that they would provide drink, an opportunity to use the washroom and medical treatment if defendant gave a statement. Elzy told defendant that Bouchee was going to testify before a grand jury in the morning; if defendant waited to make a statement, he would be stuck by himself with the murder charge.

After Elzy left the room, defendant urinated on the floor while handcuffed to the wall. Another officer entered the room to ask defendant about other investigations for about 10 minutes. Other officers learned that defendant had urinated on the floor and beat the defendant. The floor was not cleaned.

Six or seven hours later, Detectives Elzy and O’Sullivan entered the room to ask for a statement. Defendant agreed, provided that the handcuffs be removed. Elzy guaranteed defendant a manslaughter charge if defendant gave a statement.

After giving a statement to the police, defendant was given coffee and cigarettes. The police phoned defendant’s mother to tell her to bring new clothes to defendant. O’Sullivan and Elzy told defendant that when the assistant State’s Attorney and court reporter arrived, he should not tell them of any mistreatment; otherwise, he would be beaten and the manslaughter deal would be off. He then spoke with the assistant State’s Attorney and agreed to give the same statement to the court reporter.

On cross-examination, defendant admitted that he was 38 years old and had taken courses at the University of Alabama. Defendant also admitted that he had been arrested previously for attempted robbery, grand theft auto, armed robbery, attempted murder and for murder (three times). Defendant was found guilty of one murder and had pleaded guilty to another.

At the conclusion of the hearing, defendant’s motion was denied. The trial court rejected defendant’s testimony as unbelievable. The trial court also noted that defendant was familiar with the criminal justice system and even appeared to find the hearing itself amusing. The trial court described the period of detention as impermissibly long, but found that this factor did not invalidate defendant’s statement.

JURY SELECTION

During voir dire, defendant requested a sidebar in which defendant presented an objection to the State’s exclusion of African-Americans from the jury. Defendant noted that of the eight peremptory challenges exercised by the State, three were against African-American males. Defendant also noted that an Arab-American male had also been peremptorily challenged by the State. The trial court noted that the Arab-American “is not black,” to which defendant responded that he would nevertheless be considered a minority in this country. Jury selection resumed without an express finding or ruling by the trial court.

Following voir dire, defendant renewed his objection and moved for a mistrial. The State accepted the trial court’s computation that the State challenged seven white venirepeople and three African-Americans. The State maintained that defendant had not shown a prima facie case of discrimination, but explained its challenges for the record. Defendant agreed that one of the African-Americans could be excluded on the basis of his criminal record. The State explained that during the sidebar regarding this first exclusion, Turman Brown, another African-American, looked at the State as if it were attacking another juror and appeared hostile. The State also noted that Brown had never been married and appeared effeminate, explaining that this was a consideration because defendant was homosexual. The State further noted that Brown worked for the Federal Department of Housing and Urban Development and that the management of HUD in Chicago had recently been scrutinized and appeared in the media. As for the third African-American, Tyrone Bunton, the State explained that Bunton worked for Illinois Bell and that the State did not like persons who worked for Illinois Bell. The State also noted that Bunton came from a large family and might be overly sympathetic in this case.

The trial court denied defendant’s motion. The trial court stated that while the State believed that defendant had not laid a foundation for its objection, the trial court expressed the view that defendant need only show that the excluded persons were of the same background as defendant and similar to accepted venirepersons. The trial court went on to state that while the State’s explanations were not strong, there was some substance to them and they were within the discretion of the attorneys. The trial court stated that it was sure the State was motivated with the best of intentions and accepted the explanations.

TRIAL

Following opening arguments, the State called Officer Clarence Murzyn as its first witness. Officer Murzyn testified that he received a call on July 14, 1985, which led him to the Grand-Ashland Hotel and the discovery of Musgrove’s body, which had a knife protruding from the neck. Officer Murzyn identified photographs taken at the scene shortly thereafter.

Detective Blomstrand testified concerning his later investigation of the scene. Blomstrand gave testimony similar to that which he gave at the pretrial suppression hearing. He also added that a length of pipe was also found near Musgrove’s body.

Evidence technician Michael McGuire testified that he and his partner photographed the scene and recovered various pieces of evidence, including the knife blade, the pipe and the door to room 211. McGuire later collected defendant’s clothes and fingernail clippings at Area 4 headquarters.

Officer Garcia gave testimony similar to that which he gave at the pretrial suppression hearing. This testimony detailed the location and arrest of both Kim Bouchee and defendant.

Van Musgrove’s mother, Ester Washington, testified as a life and death witness. She also testified that certain wristwatches had belonged to her son. The parties stipulated that Musgrove’s father would give substantially identical testimony.

Detective Dahlberg testified regarding his contact with defendant during the time defendant was in custody at Area 4 headquarters. During their second conversation, defendant told Dahlberg that Kim Bouchee was defendant’s “whore” and that “Che-Che” was Mus-grove’s “whore.” Defendant told Dahlberg that he had last seen Mus-grove four or five days before the discovery of the body, when defendant sought out Musgrove to raise bail money for Che-Che and spending money for the jail commissary.

Evidence technician Robert Dieringer testified that he further processed room 211, taking swab samples of apparent bloodstains on the wall and recovering other items with apparent bloodstains, including a chair and cloth from defendant’s bed.

Detective O’Sullivan testified that room 211 was searched twice on July 17, 1985, after conversations with Bouchee and defendant. O’Sullivan recovered two watches which appeared to have dried blood on them. He identified these watches, which had been identified earlier by Ester Washington as having belonged to Musgrove. O’Sullivan also found items at a railroad embankment on July 17, 1985, including a bucket and a bag containing a bed sheet, men’s pants, a shirt, a slip and a key ring with keys; many of these items appeared to have dried blood on them.

Officer Michael Zefeldt testified that microanalysis indicated that a hair on the door of room 211 was similar to Musgrove’s hair. Pamela Fish, an employee of the Chicago Police Department Crime Laboratory, testified that analysis indicated that there was human blood on the floor near room 211, on the door to room 211 and the kitchen wall in room 211. Fish also testified that human blood found on the knife blade and the metal pipe was the same type as Mus-grove’s blood. The samples taken from the knife blade and the chair had eight of the same enzymes as Musgrove’s blood. The samples taken from the cloth on defendant’s bed and from defendant’s shoes were similar to Musgrove’s blood in blood type, enzymes and hemoglobin type. Defendant’s fingernail clippings indicated traces of blood, but there was an insufficient amount for detailed analysis.

Dr. Wuskel Konakci, a medical examiner, testified as to the cause of Musgrove’s death. Dr. Konakci noted that Musgrove had 15 incised or cutting wounds, 14 stab or deep cutting wounds, 6 lacerations due to a blunt wound, internal bleeding and severe skull fractures such that the brain was partially exposed.

Assistant State’s Attorney Jalaski testified as to his initial conversation with defendant and the statement defendant later gave in the presence of a court reporter. Jalaski then read this statement to the jury. In this statement, defendant stated that he and his brother, Lawrence “Little Man” Dorsey, met up with Musgrove on July 12, 1985, while in pursuit of bond money for Kim Bouchee. In the afternoon, defendant, Lawrence and Musgrove went back to room 211 at the Grand-Ashland Hotel. In room 211, the three men proceeded to “get high.” Lawrence and Musgrove got into an argument; after separating the two, defendant hit Musgrove across both sides of the throat and across the Adam’s apple with a butcher knife. As defendant stabbed Musgrove in the jaw and temple, Lawrence became hysterical, began vomiting and attempted to leave. Defendant pushed his brother down on the bed and told him that defendant would get him new clothes to exchange for the ones which had become bloody. Defendant estimated that he stabbed Musgrove between 10 and 20 times. Defendant explained that he had lost his temper.

Defendant identified an exhibit as the knife he had used to kill Musgrove. Defendant stated that he threw a sheet over Musgrove because “blood was gushing out like a water fountain over both walls.” He then carried Musgrove to room 210. Musgrove was still gargling, so defendant found a pipe and beat Musgrove’s skull 15 times. Defendant then cleaned the pipe with a rag, took two watches from Musgrove, wiped the door handle on the inside and outside, and locked room 210. Defendant wrapped the watches in the rag and hid them in a bottom dresser drawer in room 211. Defendant identified Musgrove’s watches.

Defendant took his shirt, which was bloody, along with blue jeans, Lawrence’s clothes, rags, Musgrove’s keys — every item defendant observed blood upon — and put them in a bucket. Defendant later threw this paint bucket under a viaduct. Defendant identified exhibits as the bucket and items within it.

Defendant stated that Kim Bouchee was not present for these events because he was in jail on the charge of solicitation at that time. Defendant then stated that he took Lawrence somewhere on Madison to get drunk and later took Lawrence to their mother’s house when Lawrence began to talk about the killing.

Defendant testified on his own behalf. This testimony was similar to the version of events presented in his written statement, except that defendant testified Lawrence had stabbed and beaten Musgrove in the course of their argument. In addition, a man named Edgar helped defendant take Lawrence from the bar on Madison to his mother’s house. After leaving Lawrence, defendant and Edgar bailed Kim Bouchee out of jail with money defendant borrowed from his mother. The three men returned to room 211. Upon arriving, Bouchee asked defendant about bloodstains in the apartment. Defendant initially told Bouchee that he had gotten in a fight with a neighbor, but after Bouchee learned that this was untrue, he told Bouchee that Lawrence killed Musgrove. The two men cleaned the apartment, gathered the items they knew belonged to Musgrove and threw them from a viaduct at Laflin and Madison.

Defendant further testified that he gave the police a written statement inculpating himself to protect Lawrence. Defendant repeated his testimony from the suppression hearing regarding his detention and mistreatment at Area 4 headquarters.

The State called Sergeant Sykes, Detectives Elzy and O’Sullivan and Assistant State’s Attorney Jalaski to rebut defendant’s claims of abuse. Following closing arguments, the jury found defendant guilty of murder and armed robbery.

I

On appeal, defendant contends that the police lacked probable cause to arrest him. Probable cause for arrest exists where the totality of the circumstances known to the police officers at the time of arrest would lead a reasonably prudent person to believe that the suspect is committing or has committed a crime. The officer must have more than a mere suspicion of guilt, but need not have evidence sufficient to convict the suspect. This standard speaks to probabilities; the decision to arrest relies upon factual and practical considerations of everyday life upon which a reasonable, prudent person (rather than a legal technician) acts. Thus, a trial court’s finding of probable cause will not be disturbed unless it is manifestly erroneous. See People v. Cabrera (1987), 116 Ill. 2d 474, 485-86, 508 N.E.2d 708, 712.

The record indicates that at the time of defendant’s arrest, the police had defendant’s general description and nickname, which is relevant to probable cause. (People v. Key (1984), 122 Ill. App. 3d 491, 495, 461 N.E.2d 517, 520.) The proximity of defendant’s apartment to the scene of the crime is also relevant. (People v. Pietryzk (1987), 153 Ill. App. 3d 428, 434, 505 N.E.2d 1228, 1232; People v. Gutknecht (1984), 121 Ill. App. 3d 839, 843, 460 N.E.2d 60, 63.) The police viewed apparent blood on the interior of defendant’s doorway and on defendant’s shoes. (See People v. Stachelek (1986), 145 Ill. App. 3d 391, 400, 495 N.E.2d 984, 989.) Although not as strong as the evidence of a fight in People v. Williams (1985), 137 Ill. App. 3d 736, 742, 484 N.E.2d 1191, 1196, the police believed that the victim had recently quarrelled with defendant and Bouchee. The police were told that defendant quickly left the hotel upon hearing that Collins was going to call the police. (Cf. Pietryzk, 153 Ill. App. 3d at 434, 505 N.E.2d at 1232 (furtive conduct or flight from police is relevant).) Ceasar Grant had told the police that the victim had no visitors recently. Collins told the police that “Prince” had told her he had previously killed four people and was just released from jail on a murder conviction; information that defendant had committed a similar offense may be relevant. (Cf. People v. Eddmonds (1984), 101 Ill. 2d 44, 60, 461 N.E.2d 347, 355 (murder victim appeared to have been sexually molested and suspect was known to be a previous sex offender).) Finally, it was relevant that the nature of the offense was both violent and serious. (See Stachelek, 145 Ill. App. 3d at 400, 495 N.E.2d at 989.) Although information known to the police at the time of defendant’s arrest also implicated Bouchee, the facts support the trial court’s finding of probable cause as to defendant.

II

Defendant also argues that his statement should have been suppressed as the involuntary product of a lengthy confinement in the interview room at Area 4 headquarters. Whether a statement is made voluntarily is judged by the totality of the circumstances, which may include: the age, education and intelligence of the accused; the accused’s prior experience, if any, with the criminal justice system; the duration of both the detention and the interrogations; whether the accused was advised of his constitutional rights; and whether defendant was subjected to physical mistreatment or abuse. (See People v. House (1990), 141 Ill. 2d 323, 376, 566 N.E.2d 259, 282-83; People v. Terrell (1989), 132 Ill. 2d 178, 198, 547 N.E.2d 145, 153.) If the police conduct was inherently coercive, however, the trial court need not examine the traits of the individual defendant. (See, e.g., Ashcraft v. Tennessee (1944), 322 U.S. 143, 88 L. Ed. 1192, 64 S. Ct. 921.) The trial court determines whether the statement was voluntary by a preponderance of the evidence; such a finding will not be reversed unless it is against the manifest weight of the evidence. (House, 141 Ill. 2d at 376, 566 N.E.2d at 283.) As the trial court resolved the conflicting testimony against defendant, this court will analyze the issue using the testimony of the State’s witnesses and the uncontroverted testimony of the defendant. House, 141 Ill. 2d at 370, 566 N.E.2d at 280.

Adopting this approach, we accept that defendant was given food, drink and opportunities to use the washroom facilities. Although defendant’s pants and shirt were taken for scientific analysis, defendant was provided with a paper gown to wear until the police had defendant’s mother bring new clothes to the station. We accept that defendant was not physically abused by the police. The police did not prevent defendant from sleeping in the interview room, though the room would not promote sleep. Thus, the crux of the issue is whether the length of detention and interrogation in the interview room was inherently coercive.

Defendant contends that he gave his statement only after being detained for 63 hours in a 12-foot-square, windowless room with only a table and chair. Defendant appears to arrive at this figure by calculating from the time he was first placed in the room to what defendant labels the seventh interrogation. It should be noted, however, that the record indicates that defendant agreed to give a statement during what defendant calls the sixth interrogation, which would be between 57 and 60 hours after the arrest. It should also be noted that defendant was removed from the interview room and taken for booking in the early morning hours of July 15, arguably reducing the time that defendant was held continuously in the interview room before agreeing to make a statement to 51 hours. Our analysis, however, does not depend on which figure is chosen.

Defendant refers to eight police interrogations during his detention. Calculating the duration of all the alleged interrogations identified by defendant, using the times indicated in the record, indicates that defendant was questioned for about four hours before giving a written inculpatory statement.

Our supreme court has condemned the police practice of detaining suspects in an interview room without basic facilities for extended periods of time. (House, 141 Ill. 2d at 378, 566 N.E.2d at 283.) The record indicates that the police station in House, located at Harrison and Kedzie (House, 141 Ill. 2d at 334, 566 N.E.2d at 263), is the same location involved in this case. The House court warned the police against “brinksmanship” in upholding a finding that statements given after 25 and 37 hours in an interview room were voluntary. House, 141 Ill. 2d at 379-80, 566 N.E.2d at 284.

On the other hand, the House decision was not handed down until more than four years after defendant’s arrest in this case, which precludes us from imputing knowledge of this condemnation to the police. Moreover, the House court indicated drawing a bright line in this type of case would be unworkable. (House, 141 Ill. 2d at 379, 566 N.E.2d at 284.) The House court’s application of the totality-of-the-circumstances standard leads us to conclude that this particular factual matrix does not lend itself to a determination of inherent coercion.

In addition, this court has previously held that statements given after more than 37 hours of detention may be voluntary under somewhat similar circumstances. (See People v. Matthews (1990), 205 Ill. App. 3d 371, 406, 562 N.E.2d 1113, 1133; see also People v. Williams (1984), 128 Ill. App. 3d 384, 470 N.E.2d 1140.) We note that in Matthews and Williams, the defendant was placed in a lockup when not under questioning, which did not occur in this case. On the other hand, “[a] jail cell is hardly a paradise for the senses” either. House, 141111. 2d at 379, 566 N.E.2d at 284.

Furthermore, the precedent of the United States Supreme Court leads us to conclude that the trial court did not err in finding defendant’s statement was voluntary. As a treatise cited in House indicates, “where the detention has been only a few days or the questioning lasted only a few hours, exclusion of the confession has typically occurred only when it was also shown that the defendant was especially susceptible to coercion.” (1 W. LaFave & J. Israel, Criminal Procedure §6.2(c), at 445 (1985).) For example, in Culombe v. Connecticut (1961), 367 U.S. 568, 621-35, 6 L. Ed. 2d 1037, 1068-76, 81 S. Ct. 1860, 1889-96, the Court noted that Culombe was mentally defective and likened his case to that of Fikes v. Alabama (1957), 352 U.S. 191, 1 L. Ed. 2d 246, 77 S. Ct. 281, in which the defendant had a third-grade education, was apparently schizophrenic and highly susceptible to suggestion. The Court distinguished Culombe from Brown v. Allen (1953), 344 U.S. 443, 97 L. Ed. 469, 73 S. Ct. 397, where the defendant did not have such attributes and the questioning was sporadic, even though the defendant was detained for five days. See Culombe, 367 U.S. at 626-27 & n.89, 6 L. Ed. 2d at 1071-72 & n.89, 81 S. Ct. at 1892 & n.89; Brown, 344 U.S. at 475-76, 97 L. Ed. at 498-99, 73 S. Ct. at 416-17.

The record shows that defendant was an educated adult. The State’s witnesses testified that defendant was fully advised of his constitutional rights. The record also shows that defendant also was aware of his constitutional rights from prior, extensive contacts with the criminal justice system, allowing the inference that defendant was aware of the consequences of making an inculpatory statement. (Terrell, 132 Ill. 2d at 198, 547 N.E.2d at 153.) Thus, we conclude that the finding of voluntariness was not manifestly erroneous.

In the alternative, defendant argues that his detention resulted in a 63-hour delay in presenting him to a magistrate, in violation of his State statutory and fourth amendment rights to a prompt determination of probable cause. (See U.S. Const., amend. IV; Ill. Rev. Stat. 1985, ch. 38, par. 109 — 1(a).) After a warrantless arrest, the State must provide defendant with a prompt determination of probable cause by a neutral, detached magistrate. (Gerstein v. Pugh (1975), 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854.) Providing this determination of probable cause within 48 hours generally satisfies this constitutional requirement. (See County of Riverside v. McLaughlin (1991), 500 U.S. 44, 56, 114 L. Ed. 2d 49, 63, 111 S. Ct. 1661, 1670.) Beyond 48 hours, the burden shifts to the State to show extraordinary circumstances justifying the delay. (See County of Riverside, 500 U.S. at 56, 114 L. Ed. 2d at 63, 111 S. Ct. at 1670.) However, failure to promptly present defendant before a magistrate does not invalidate a confession per se, but is merely a factor to consider in determining the voluntariness of a statement. House, 141 Ill. 2d at 380, 566 N.E.2d at 284.

In its brief, the State argues that “the scientific analysis could not be processed within 48 hours and some of the evidence was not found at the time of defendant’s arrest and processing therefore could not begin until later than the arrest. The results of the analyses were important to the charging and questioning of the defendant.” The Supreme Court, however, has specifically noted that delaying presentment to gather more evidence to support an arrest is an example of unreasonable delay. (County of Riverside, 500 U.S. at 56, 114 L. Ed. 2d at 63, 111 S. Ct. at 1670.) Defendant argues that he would have invoked his fifth and sixth amendment rights at the presentment, precluding further questioning. Yet, as noted above, the record indicates that defendant was aware of his sixth amendment right to counsel and fifth amendment privilege against self-incrimination and invoked neither during his detention. Thus, despite a seemingly unreasonable delay in presentment, defendant has failed to show any prejudice resulting from it. House, 141 Ill. 2d at 380-81, 566 N.E.2d at 285.

III

Defendant next contends that the trial court should have suppressed his statements because the State failed to produce Detectives Mientus and Elzy as witnesses. When the voluntariness of a statement is challenged, the State must produce all material witnesses connected with the statement or explain their absence. (People v. Watson (1989), 178 Ill. App. 3d 796, 807, 533 N.E.2d 1011, 1018.) Defendant failed to specify this alleged error in his motion for a new trial, thus waiving the issue. (People v. Sargent (1989), 184 Ill. App. 3d 1016, 1021-22, 540 N.E.2d 981, 984-85; People v. Nunez (1974), 24 Ill. App. 3d 163, 169-70, 320 N.E.2d 462, 467.) This court, however, may review the issue for plain error. E.g., People v. Ralon (1991), 211 Ill. App. 3d 927, 950, 570 N.E.2d 742, 758.

The record indicates that Elzy was a rebuttal witness at the hearing on the motion to suppress statements. Defendant’s brief does not indicate that prejudice resulted from the State’s failure to produce Elzy during its case in chief. Defendant has seemingly failed to show plain error in this regard.

The record indicates that Mientus did not testify at this hearing. Yet the record also indicates that Mientus did not question defendant alone in the interview room; rather, Mientus was always with Elzy, Sykes or O’Sullivan. Defendant’s brief does not indicate that Mientus’ testimony would have differed materially from that of Elzy, Sykes and O’Sullivan, all of whom testified that defendant was well treated while in custody. Thus, even if this court were to assume arguendo that Mientus was a material witness, defendant has failed to show plain error. Ralon, 211 Ill. App. 3d at 951, 570 N.E.2d at 758.

IV

Defendant next argues that the State purposefully discriminated against African-Americans during jury selection, in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Under Batson and its progeny, a defendant must establish a prima facie case of purposeful racial discrimination by showing that the State exercised its peremptory challenges to remove members of a cognizable racial group from the venire. (See Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) In this case, the record indicates that the State did not believe that defendant had made a prima facie case, but nevertheless offered explanations for its peremptory challenges. The trial court ruled on the ultimate question of intentional discrimination; the record does not indicate that the trial court specifically ruled regarding the prima facie case. Thus, the issue of whether defendant made a prima facie showing is moot. Hernandez v. New York (1991), 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859.

Thus, the burden shifts to the State to come forward with clear, reasonably specific, legitimate and race-neutral explanations for striking the venirepersons. (See Batson, 476 U.S. at 93-94, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) These explanations need not rise to the level justifying a challenge for cause, but a mere assertion of good faith or nondiscriminatory motive is insufficient. (People v. Harris (1989), 129 Ill. 2d 123, 174, 544 N.E.2d 357, 379.) The trial court must make a sincere, reasoned assessment of the genuineness of the State’s explanations. (People v. Baisten (1990), 203 Ill. App. 3d 64, 77, 560 N.E.2d 1060, 1068.) Whether a prima facie case has been rebutted is a factual question grounded in credibility; thus, the trial court’s decision will not be reversed unless it is against the manifest weight of the evidence. (Harris, 129 Ill. 2d at 175, 544 N.E.2d at 380.) The exclusion of even one venireperson on the basis of race requires reversal of defendant’s conviction. (People v. McDonald (1988), 125 Ill. 2d 182, 200, 530 N.E.2d 1351, 1359.) Therefore, the explanations for peremptorily excluding each African-American venireperson will be reviewed. (People v. Kindelan (1991), 213 Ill. App. 3d 548, 555, 572 N.E.2d 1138, 1142.) On appeal, defendant objects to two challenges; we address each in turn.

Turman Brown — The State volunteered that Brown had looked at the prosecutor with hostility during a sidebar regarding a prior peremptory challenge. The State also noted that Brown appeared effeminate and implied that he might sympathize with the defendant. Explanations that focus on a person’s demeanor must be closely scrutinized to insure they are not a pretext for discrimination. (Harris, 129 Ill. 2d at 176, 544 N.E.2d at 380.) Nevertheless, given the great deference accorded to the trial court’s assessment of the State’s credibility, we cannot say that the ruling was clearly in error.

Tyrone Bunton — The State volunteered that Bunion’s employment with Illinois Bell was undesirable for a juror and that Bunton also came from a large family, with 12 brothers and sisters, which might make him sympathetic to defendant. At this point in the proceedings, the trial court and the State had heard defendant testify (at the motion to suppress statements) that he inculpated himself to protect his brother. The State added at the hearing on defendant’s motion for new trial that the State believed siblings tend to help raise each other more in large families than in small families, creating a stronger familial bond. Given this record, it seems that the court’s finding of no intentional discrimination was not clearly erroneous.

Defendant argues that the trial court was required to make specific findings as to each excluded venireperson, but stated only that “the State seems to connect, at least, some of their challenges to the facts in this case.” However, the cases cited by defendant generally do not support this argument; rather, they refer to this court’s duty to examine the reasons offered for each exclusion. Harris, on appeal following a Batson remand, faulted the trial court for failing to make findings as to an excluded venireperson because the court believed it lacked sufficient information for review. The Harris court also distinguished People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107, where the trial court found that the facts were not in dispute and that all of the State’s reasons were legitimate. (Harris, 129 Ill. 2d at 187-88, 544 N.E.2d at 385-86.) In this case, the trial court did not explicitly find that the facts were not in dispute; on the other hand, defendant has not disputed any of the underlying facts on appeal. Moreover, the record on this issue, when read in its entirety, indicates that the trial court accepted the State’s explanations. Thus, the record is sufficient for review.

Defendant also suggests that the trial court merely accepted the State’s assertion of good intent. The record, however, indicates that the State did not assert good intent; rather, the trial court concluded that the State was acting with the best of intentions, a conclusion that is entitled to deference on appeal.

Defendant further contends that the trial court erred in ruling that defendant lacked standing to challenge the State’s exclusion of an Arab-American. Under Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364, defendant had third-party standing to challenge such an exclusion. The record indicates that defendant objected to this exclusion, that the trial court responded that the venireperson was not an African-American, and that defendant nevertheless registered his objection. Defendant did not actually obtain a ruling at that time. Defendant failed to reassert the objection either during the motion for mistrial which followed voir dire or in his written motion for a new trial. Consequently, defendant has waived the objection to this exclusion.

V

Defendant’s fifth argument is that the trial court erred by admitting into evidence a photograph of the victim, whose wounds were allegedly made to look more gruesome by the autopsy procedure and by the presence of maggots in the picture. Turning first to the alleged autopsic incisions, we note that defendant’s citations to the record do not contain objections to autopsy incisions. Moreover, the error is not specified in defendant’s motion for a new trial, resulting in waiver. People v. Nevitt (1990), 135 Ill. 2d 423, 441, 553 N.E.2d 368, 374.

Turning next to the alleged maggots, it must be noted that the decision to admit a photograph is generally within the discretion of the trial court, unless its prejudicial impact would outweigh its probative value. (See People v. Henderson (1990), 142 Ill. 2d 258, 319, 568 N.E.2d 1234, 1263-64.) Defendant has failed to identify or include the photograph at issue in the record on appeal. Thus, we are unable to determine whether there was an abuse of discretion. People v. Turner (1989), 128 Ill. 2d 540, 566, 539 N.E.2d 1196,1207.

VI

Defendant next argues that the trial court unduly restricted his ability to cross-examine witnesses on the issue of whether his confession was voluntary. Defendant identifies a number of instances where the trial court sustained the State’s objections to various questions asked by defendant on cross-examination. Defendant’s motion for new trial, however, only refers to: (1) the cross-examination of Detective O’Sullivan as to the contents of conversations between O’Sullivan and defendant while defendant was in custody during the State’s case in chief; and (2) the cross-examination of O’Sullivan and Elzy after rebuttal testimony that they did not coerce defendant into making a statement. Any other objections are waived on appeal. People v. Chevalier (1989), 131 Ill. 2d 66, 77, 544 N.E.2d 942, 946.

Even if none of these objections were waived, defendant’s argument is not persuasive. The trial court’s decisions regarding the scope of cross-examination will not be reversed absent an abuse of discretion resulting in prejudice to defendant. (People v. Owens (1984), 102 Ill. 2d 88, 103, 464 N.E.2d 261, 268.) Even so, defendant’s right to cross-examine witnesses is essential to his right to confront witnesses against him; thus, limitations thereon require scrutiny. People v. Rutledge (1985), 135 Ill. App. 3d 259, 262, 481 N.E.2d 348, 350.

The record indicates that the objections sustained by the trial court and complained of on appeal fall into two categories: (1) questions beyond the scope of direct examination; and (2) questions calling for facts beyond a witness’ personal knowledge. Such limitations on cross-examination do not violate defendant’s right to cross-examination. People v. Dortch (1982), 109 Ill. App. 3d 761, 767, 441 N.E.2d 100, 105.

Defendant relies upon Crane v. Kentucky (1986), 476 U.S. 683, 90 L. Ed. 2d 636, 106 S. Ct. 2142, in which the defendant was completely precluded from presenting testimony that he was detained in a small, windowless room until he confessed. Unlike Crane, however, defendant in this case was not completely precluded from introducing favorable evidence or disputing unfavorable evidence; rather, he was precluded from doing so on some topics in the context of cross-examination. (See People v. Richardson (1988), 123 Ill. 2d 322, 345, 528 N.E.2d 612, 620.) Defendant has failed to show that the trial court erred in sustaining the objections.

VII

Defendant’s seventh argument is that the trial court erred by allowing the State to use defendant’s prior murder conviction for impeachment without limiting the State to referring to it only as a prior felony conviction. A trial court may, in its discretion, exclude evidence of a prior felony conviction when the prejudicial effect of admitting it outweighs its probative value. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) Factors to consider in making this ruling include: (1) the nature of the prior crime; (2) the proximity in time of the prior crime; (3) the similarity of the prior crime to the current charge; and (4) the subsequent career of the defendant. (People v. Siebert (1979), 72 Ill. App. 3d 895, 902, 390 N.E.2d 1322, 1328.) The trial court also may limit the State to referring to the conviction as a felony without specifying the crime. (Williams, 137 Ill. App. 3d at 743, 484 N.E.2d at 1197.) The trial court may be reversed where its comments indicate that it failed to exercise its discretion. People v. Smith (1979), 73 Ill. App. 3d 577, 579, 392 N.E.2d 347, 349.

In this case, the trial judge stated that “I don’t think I have any right to deny [the State] the right to present evidence.” The record, however, also indicates that the trial court was aware of Montgomery, permitting the presumption that the trial court gave proper consideration to the relevant factors. (Siebert, 72 Ill. App. 3d at 902, 390 N.E.2d at 1328.) As the record also indicates that the trial court was aware it could limit the use of the conviction under Williams, it appears that the trial court exercised its discretion.

Defendant also cites Siebert to argue that the trial court erred because the prior murder conviction was not indicative of dishonesty and was similar to the crime for which defendant was being tried. The Siebert court held that a prior conviction should have been excluded because the similarity and proximity of the crimes would have inevitably suggested that defendant had a propensity to commit this type of crime. (Siebert, 72 Ill. App. 3d at 903, 390 N.E.2d at 1329; see also People v. Wright (1977), 51 Ill. App. 3d 461, 463-64, 366 N.E.2d 1058, 1061 (trial court’s comments indicated that the basis for the ruling was to prove propensity).) In this case, the prior crime was far more remote in time and the trial court’s comments do not indicate that the conviction was admitted to prove propensity. Thus, defendant has not shown that the trial court erred, given the record on appeal.

VIII

Finally, defendant contends that he was deprived of a fair trial due to improper comments made by the State during closing arguments. This court has held the exact allegation appearing in defendant’s post-trial motion to be too vague to preserve the issue for review. (Sargent, 184 Ill. App. 3d at 1021-22, 540 N.E.2d at 986-87.) Even if this court were to assume arguendo the issue had not been waived and that some or all of the comments identified by defendant were improper, they may be deemed harmless error where the evidence of defendant’s guilt is overwhelming and the jury was instructed not to consider closing arguments as evidence. (See People v. Faysom (1985), 131 Ill. App. 3d 517, 525, 475 N.E.2d 945, 952.) The record indicates that this is such a case.

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

Affirmed.

O’CONNOR and MANNING, JJ., concur.

      As noted earlier, Blomstrand testified at the suppression hearing that he observed the knife lying on Musgrove’s shoulder. Murzyn testified that he observed the knife protruding from Musgrove’s neck. However, these portions of the record are not questioned by defendant on appeal.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREIMAN

license: Public Domain

text:
    WILLIAM RUTLEDGE, Plaintiff-Appellant, v. ST. ANNE’S HOSPITAL, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—1653
    Opinion filed June 10,1992.

      Propp & Schultz, of Chicago, for appellant.
    Hinshaw & Culbertson, of Chicago (Debra S. Davy, Nancy G. Lischer, and Gary J. Bazydlo, of counsel), for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff William Rutledge appeals a judgment entered after an adverse jury verdict in a medical malpractice action. Plaintiff contends that he was prejudiced (1) by numerous remarks and arguments made by defense counsel in her opening and closing statements; (2) by defense counsel’s violation of a stipulation as to the whereabouts of a witness not under either parties’ control; and (3) by defense counsel’s violation of defendant’s own motion in limine.

We find that the cumulative effect of defense counsel’s actions in ignoring the motion in limine and making improper statements which went far beyond the bounds of mere advocacy so prejudiced plaintiff that he was denied a fair trial and we remand this cause for a new trial.

Plaintiff brought this action for injuries he claims were sustained as a result of the negligence of Nurse Regina Zaworski, an employee of the defendant hospital. Plaintiff was hospitalized for a bladder infection in June of 1983, and on June 14 an intravenous needle and plastic catheter (IV) were inserted into his left wrist. The needle was removed and the catheter was taped to keep it in place if needed to transmit fluids or medication.

When Nurse Zaworski later removed the catheter, plaintiff claims she attempted to remove the tape and catheter at the same time but the tape would not come loose. Nurse Zaworski tried three or four times to extract the catheter but the tape remained adhered to his wrist and caused the catheter to move in a plunging direction while still inserted in his wrist. When the catheter repeatedly plunged into his wrist, it “wiggled” in a manner that caused extreme pain and plaintiff complained of the pain to Nurse Zaworski.

On the morning after plaintiff was discharged from the hospital on June 16, 1983, he noticed swelling in his wrist where the IV had been placed and called the hospital to report it. Three weeks later when plaintiff appeared for his next doctor’s appointment, plaintiff told his physician, Dr. George Detrana, that he experienced pain in his left wrist and arm and that the vein in his wrist where the IV had been “was gone.” Dr. Detrana diagnosed plaintiff as having arthritis. Unsatisfied with this determination as to the cause of the pain, plaintiff sought help from Dr. Peter Mayer in November of 1983, five months after his discharge from the hospital.

Dr. Mayer saw plaintiff six or seven times between November 1983 and November 1986 and diagnosed that plaintiff had a blood clot which resolved itself, leaving plaintiff with thrombophlebitis, an inflammation of the vein. Dr. Mayer testified that plaintiff currently has a chronic post-thrombophlebitic condition, which is a lesser but lasting pain associated with thrombophlebitis.

Testifying as an expert, Dr. Mayer stated that based upon the medical history which plaintiff gave him, he believes plaintiff’s thrombophlebitis was caused by an IV which was roughly manipulated upon withdrawal.

Nurse Jeri Fiset, director of nursing at Lutheran General Hospital, also testified as an expert for plaintiff, stating that the standard of care for removing an IV requires removal of any dressings or tape securing the IV prior to removal of the IV itself. Her opinion, based upon the passages she read in plaintiff’s deposition, was that Nurse Zaworski violated the standard of care in her removal of the IV.

Expert testimony for defendant included Claudia Beckmann, a part-time practicing nurse and part-time nursing instructor. Ms. Beckmann stated that she did not believe it necessary to remove all tape from the catheter prior to removal, nor did she believe that the hospital deviated from the standard of care, based upon her examination of plaintiff’s medical records.

Nurse Zaworski testified for defendant, stating that while she had no independent memory of plaintiff, she did not believe she pulled on the catheter in the way plaintiff described, had never had such an experience, and would have noted it on plaintiff’s hospital chart.

Plaintiff first alleges that in her opening statement, defense counsel strayed from the facts to make speeches, arguments and legal dissertations, sometimes using inflammatory language. Among the alleged transgressions in defense counsel’s opening, all of which sustained objection: (1) counsel’s characterization of the situation that “although the hospital is being sued here, the contest here is between Mr. Rutledge and Nurse Zaworski”; (2) counsel’s improper attempts to argue law to the jury despite the parameters of appropriate legal theory and terminology set by the trial judge in chambers; (3) counsel’s description of a “smoking gun” as an example of real evidence; (4) counsel’s improper explanation to the jury that an expert witness must be in the same field as the person being charged; (5) counsel’s gratuitous comments that the evidence is composed of “the medical records that were created before lawyers were involved”; (6) counsel’s statement that plaintiff tells “two different stories”; and (7) counsel’s use of inflammatory language in stating that plaintiff accused Nurse Zaworski of “mangling” his arm.

Plaintiff also contends that there were numerous prejudicial comments made in defense counsel’s closing argument as well, including: (1) counsel’s comment that plaintiff failed to call Dr. Detrana as a witness, this after the parties had stipulated that the doctor, under neither party’s control, was unavailable because of illness; (2) counsel’s implication that plaintiff failed to sue the proper doctor; (3) counsel’s statement that defendant was responsible for showing the jury “the only real evidence,” meaning the medical records, when it was plaintiff who placed them into evidence; (4) defense counsel’s second use of the term “smoking gun” when it had been deemed objectionable in opening argument; and (5) counsel’s statement to the jury that Nurse Zaworski’s parents were in the courtroom watching her, an improper implication that defendant’s witness must be telling the truth.

A reviewing court may not reverse a trial court’s decision to grant a new trial merely because it would have come to a different conclusion, but rather it is required to find that the trial court abused its discretion in granting the post-trial relief. (Marotta v. General Motors Corp. (1985), 108 Ill. 2d 168, 177, 483 N.E.2d 503; Bishop v. Baz (1991), 215 Ill. App. 3d 976, 980, 575 N.E.2d 947.) In determining whether such discretion was abused, we must consider whether the losing party was denied a fair trial. Marotta, 108 Ill. 2d at 177-78.

Defendant contends that plaintiff waives the alleged prejudice resulting from defense counsel’s opening statement and violation of the motion in limine because plaintiff did not raise them in his post-trial motion.

While this is generally true, and the record in this case demonstrates that plaintiff did fail to raise them in his post-trial motion, it has long been held that a reviewing court can override waiver considerations in order to carry out its responsibility to provide a just result. In re Marriage of Sutton (1990), 136 Ill. 2d 441, 446, 557 N.E.2d 869; Hux v. Raben (1967), 38 Ill. 2d 223, 225, 230 N.E.2d 831; American National Bank & Trust Co. v. Bus (1991), 212 Ill. App. 3d 133,139, 569 N.E.2d 1377.

The rule of waiver is a limitation on the parties and not upon the jurisdiction of the reviewing courts. (Sutton, 136 Ill. 2d at 446; Be coraro v. Kesner (1991), 217 Ill. App. 3d 1039, 1045, 578 N.E.2d 53.) Supreme Court Rule 366 allows a reviewing court to use its discretion to “enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief *** that the case may require.” 134 Ill. 2d R. 366(aX5).

In Hux, the supreme court determined:

“These provisions recognize that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system.” Hux, 38 Ill. 2d at 224-25.

In the present case, plaintiff made appropriate objections at trial, thus alerting defendant and the trial court to its concerns about the issues here asserted. Therefore, we may invoke our power to examine plaintiff’s issues regarding defendant’s opening statement and violation of the motion in limine in order to provide a just result. Sutton, 136 Ill. 2d 441.

Plaintiff did raise the issue of defense counsel’s closing argument in his post-trial motion and we examine that argument to determine whether plaintiff was denied a fair trial. Marotta, 108 Ill. 2d at 177-78.

Generally, improper argument or misconduct of counsel can be a sufficient basis to require a new trial. Mykytiuk v. Stamm (1990), 196 Ill. App. 3d 928, 936, 554 N.E.2d 505; Bisset v. Village of Lemont (1983), 119 Ill. App. 3d 863, 865, 457 N.E.2d 138.

In examining defense counsel’s closing argument, we find that plaintiff was denied a fair trial because of defense counsel’s prejudicial remarks which distorted and misrepresented the evidence and the law and was calculated to mislead the jury.

There are several transgressions upon which we particularly focus to form the basis of our findings. The first is the comment by defense counsel in her closing argument that plaintiff failed to call Dr. Detrana as a witness. In a conference with the trial judge, the parties agreed that Dr. Detrana was under neither party’s control and they stipulated that he was unavailable to testify because of illness. In her closing, however, defense counsel stated:

“He’s also angry at Dr. Detrana, he tells you, because Dr. Detrana told him there’s nothing wrong with your arm. Dr. Detrana didn’t treat him for that arm. Dr. Detrana didn’t even want to look at the arm.
Has anyone come in here and said Dr. Detrana wasn’t qualified? Where is Dr. Detrana? How come they didn’t bring him in?”

Comments in closing argument have been held improper where a party draws attention to an opponent’s failure to call a witness when that witness is not under the opponent’s control. (Gillespie v. Chrysler Motors Corp. (1990), 135 Ill. 2d 363, 382, 553 N.E.2d 291.) Here, even though the parties had discussed and agreed that Dr. Detrana was unavailable due to illness, defense counsel willfully disregarded the stipulation in a clear attempt to mislead the jury into believing plaintiff did not want the jury to hear Dr. Detrana’s testimony.

Next, we find defense counsel improperly implied to the jury that plaintiff was suing the wrong doctor when she stated in her closing:

“There’s been some implication in this courtroom that maybe the Valium that was given in the operating room to sedate the patient, Valium, ten milligrams I-V, per, meaning by Dr. Dahms, caused the patient a problem. They didn’t sue Dr. Dahms.”

Arguments concerning the nonjoinder of a potential party are improper (Rapacki v. Pabst (1980), 80 Ill. App. 3d 517, 522, 400 N.E.2d 81; Peluso v. Singer General Precision, Inc. (1977), 47 Ill. App. 3d 842, 852, 365 N.E.2d 390) and such argument can be reversible error if the party can show prejudice resulted so as to deny a fair trial. (Rapacki, 80 Ill. App. 3d at 522.) Here, with nothing in the record upon which to base these remarks, defense counsel again insinuates that plaintiff is hiding something from the court or jury.

We also find that defense counsel improperly misrepresented plaintiff’s exhibits as evidence which defendant alone presented to the jury. Plaintiff requested from defendant and entered into evidence hospital charts relating to plaintiff and hospital policies regarding insertion and withdrawal of IVs. However, in her closing, defense counsel states:

“And I would submit to you that the only real evidence that you saw whatsoever [sic] in this case was the medical records from St. Anne’s Hospital and the policy and procedure from St. Anne’s Hospital. Neither of which the Plaintiff showed you. They were shown to you by the Defendant.”

Defense counsel’s outright mischaracterization and subtle chicanery here is an attempt once again to induce the jury into believing that plaintiff is hiding evidence from the jury that will favor defendant. This court in Mykytiuk granted plaintiff a new trial where defendant was found to have prejudiced plaintiff by creating an impression to the jury that plaintiff was holding back evidence. (Myky tiuk, 196 Ill. App. 3d at 936.) While that case involved defendant’s attempt to improperly introduce evidence at trial, the two circumstances leave similar impressions upon the jury that plaintiff is not completely honest and credible. See also People v. Lopez (1987), 152 Ill. App. 3d 667, 679, 504 N.E.2d 862; People v. Clark (1983), 114 Ill. App. 3d 252, 256, 448 N.E.2d 926.

Defense counsel argues that because the trial court sustained plaintiff’s objections and generally admonished the jury to disregard most of them, there has been no prejudice to plaintiff. We disagree and find that plaintiff has been denied a fair trial. We determine that defense counsel’s remarks and insinuations at closing argument, taken with the previously mentioned overreaching, were too pervasive and insidious to have had no prejudicial effect on the jury.

We also address plaintiff’s contention that he was prejudiced by defense counsel’s violation of defendant’s own motion in limine which prohibited Nurse Fiset, plaintiff’s expert, from “looking at and commenting on, and basing her opinions at trial on any material she hadn’t used to compile her affidavit, on any materials not used to form the basis of her deposition.” This motion prohibited Nurse Fiset from commenting on plaintiff’s hospital records, since her opinion was based upon her review of plaintiff’s deposition.

The record establishes that just prior to her direct examination, defense counsel asked to be heard in chambers, whereupon she sought to receive assurances from the court that plaintiff’s direct would be within the limitations of the motion in limine. At that time, defense counsel specifically represented that she relied upon the motion’s limitations in preparing her cross-examination of the witness. The trial judge gave assurances that he would enforce the motion and plaintiff’s counsel agreed to honor it.

Although plaintiff’s attorney did not stray beyond the limits of the motion upon direct, during cross-examination defense counsel improperly proceeded to initiate a line of questioning regarding the same medical records which she sought to put beyond plaintiff’s reach.

During this cross-examination, defense counsel continued to violate the motion in limine after the court sustained plaintiff’s objections and admonished the jury. Defense counsel also continued to barrage the jury after the court’s rulings.

The purpose of a motion in limine is to permit a party to obtain an order before trial excluding inadmissible evidence and prohibiting interrogation concerning such evidence without the necessity of having the questions asked and objections thereto made in front of the jury. In this way, the moving party is protected from whatever prejudicial impact the mere asking of the questions and the making of the objections may have upon the jury. Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549, 416 N.E.2d 268.

Defendant argues that since the purpose is to protect the moving party, the moving party is free to violate its own motion without error since the nonmoving party may examine the witness on redirect. Defense counsel also contends that she had a right to make repeated attempts along that line of questioning since plaintiff’s objections and the four sustained rulings failed to alert her to the nature of the objections.

We find that defense counsel violated her own motion to create an appearance that plaintiff was concealing the hospital records from his own witness.

Courts caution the use of a motion in limine since there is potential danger that the motion may unduly restrict the opposing party’s representation of its case. (Reidelberger, 83 Ill. 2d at 550; Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 935, 479 N.E.2d 1091.) The motion should not frustrate the search for and presentation of the truth, and both sides must be heard so that the trier of fact does not reach a decision based upon misinformation. (Zelinski, 133 Ill. App. 3d at 936.) In fairness to the parties, the limitations should apply to all sides to allow careful practitioners to thoughtfully prepare their examination and cross-examination of witnesses.

While defense counsel’s violation of the motion, standing alone, might not have prejudiced plaintiff, we find it substantially contributes to a cumulative prejudice against plaintiff caused by defense counsel over the course of the trial. The jury, comparing the content of plaintiff’s direct examination of the witness to defendant’s accusatory cross-examination, may well have concluded that plaintiff chose not to interrogate Nurse Fiset on the hospital records because such testimony would damage plaintiff’s case.

Prejudice from repeated attempts to question a witness on inadmissible evidence has previously been condemned in Geisberger v. Quincy (1972), 3 Ill. App. 3d 437, 441, 278 N.E.2d 404. In that case, defense counsel repeatedly attempted to introduce immaterial evidence, and the trial court repeatedly sustained plaintiff’s objections and admonished the jury. The court stated that defense counsel’s persistence demonstrated that prejudice against plaintiff was intended and that defendant’s goal was to create in the mind of the jurors the impression that the objecting party was attempting to conceal evidence. Geisberger, 3 Ill. App. 3d at 441.

Upon examination of the record, we do not believe that defense counsel was unaware of the basis of plaintiff’s objections and the trial court’s rulings and so could innocently forge ahead with her misleading line of questioning since (1) defense counsel had requested a hearing in chambers prior to this witness’ testimony specifically to emphasize her reliance upon the motion and its limitations, and (2) plaintiff made it clear in his objections that defense counsel was ignoring the limitations of the motion in limine.

Further, we disagree with defendant that plaintiff had a chance to cure any prejudice upon redirect. Plaintiff’s attempt to correct the impression of chicanery created by defense counsel’s cross-examination was likely to be of little value since the perception was quite strong that plaintiff attempted subterfuge on the issue of hospital charts and records. Also, defense counsel upon recross again attempted the same line of questioning.

While defense counsel argues that she was merely trying to show that the witness was not qualified as an expert, the Geisberger court states:

“[Ijnnuendos and prejudice created by such questions cannot always be overcome, and approval of such questions affecting credibility, under the guise and pretense of laying a foundation for impeachment could defeat many meritorious causes without proof made or offered.” Geisberger, 3 Ill. App. 3d at 442.

Lawyers are properly advised that they should zealously represent their clients, but that zeal has its bounds. Although the trial court made appropriate evidentiary rulings, defense counsel ignored the directions of the court in her efforts to impact upon the jury.

While the adversary system of litigation is alive and well, it does not require that counsel become gladiators prepared to fight to the death. It is not enough for courts of review, bar association leaders and others to decry the lack of civility and fairness in our judicial system. When counsel goes beyond the rules, her client must bear some of the responsibility for her inexcusable conduct.

Because we find plaintiff was prejudiced by remarks in defense counsel’s closing statement and by her violation of defendant’s own motion in limine, we need not decide whether remarks made in defense counsel’s opening statement could, by themselves, be prejudicial error.

We do not grant a new trial lightly, and gravely consider the trial court’s determination in this regard. We are also mindful of the respect to be accorded juries and the unlikelihood that they will be deflected from their sworn duty by the lawyer’s conduct. Further, we recognize that special care must be taken when reviewing a case such as this since it is difficult to determine the precise impact of such misconduct. There is no magic number of instances that tilts the scales of justice.

Rather, our determination here is predicated on the weight of prejudice cumulatively applied by defense counsel’s actions. We note that throughout the record, not only in the passages cited in this opinion, counsel’s conduct, both in chambers and in front of the jury, too often goes beyond the margin of zealous advocacy to become acrimonious, overly contentious, and unswervingly determined to persuade the jury that plaintiff is attempting to conceal evidence without any evidentiary foundation.

The fact that this inflammatory disposition survives to become apparent in the record only supports our finding that the jury’s decision was prejudiced by her actions and that plaintiff was denied a fair trial.

For the foregoing reasons, the judgment of the trial court is reversed and the cause remanded for new trial.

Reversed and remanded.

RIZZI and CERDA, JJ., concur.


text:
    PATRICK MITCHELL, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—90—2176
    Opinion filed June 10,1992.

      Griffin & Fadden, Ltd., of Chicago (Lawrence G. Staat and John E. Fish, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for appellee Department of Revenue.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Defendant Patrick Mitchell appeals from the circuit court’s administrative review which affirmed the assessment of the administrative law judge (ALJ) that defendant is liable to the Illinois Department of Revenue (DOR) for penalties totaling $39,774.78 for willful failure to remit employer’s withholding tax payments for 1981, 1982 and the first and fourth quarters of 1983.

Our decision in this case turns upon a determination as to the appropriate section of the Illinois Income Tax Act employed to impose the assessment against defendants and accordingly which statute of limitations is applicable to that assessment.

Section 905(c) provides that if no return is filed, a notice of deficiency may be issued at any time. Ill. Rev. Stat. 1989, ch. 120, par. 9 — 905(c).

Section 905®, however, deals expressly with withholding taxes and provides that in the case of returns required by the Act, a notice of deficiency shall not be issued later than three years, three months and 15 days following the close of the calendar year. Ill. Rev. Stat. 1989, ch. 120, par. 9 — 905®.

Defendant contends that (1) he was improperly found liable for the penalties under section 905(c) of the Illinois Income Tax Act, since section 905® and its statute of limitations should have been applied to find the action against him time-barred, and (2) even if this court finds him liable under section 905(c), he cannot be penalized for the 1981 and 1982 returns because the DOR failed to make a prima facie showing that those returns were not filed.

We affirm the lower court’s finding that defendant is liable under section 905(c) for the 1983 penalties, but we reverse as to the 1981 and 1982 penalties since we find the DOR failed to make a prima facie showing that those returns were never filed.

Mitchell was president, chief executive officer and a 50% shareholder of Mitco Sales, Inc., which, having accumulated Federal payroll tax arrearages, was dissolved in December 1983. After an audit conducted by the DOR’s Bureau of Criminal Investigation, the DOR determined that Mitco had failed to file withholding returns for all quarters of 1981, 1982 and the first and fourth quarters of 1983. On May 27, 1988, DOR then issued notices of deficiency to Mitchell and other Mitco officers seeking penalties for willful failure to collect and pay over withholding taxes for the quarters in question, pursuant to section 1002 of the Illinois Income Tax Act. Ill. Rev. Stat. 1989, ch. 120, par. 10-1002.

Mitchell and the other officers filed protests, and after an evidentiary hearing, the ALJ found Mitchell to be the responsible officer for payment of withholding taxes, that he willfully failed to remit those taxes, and that he was liable for penalties under section 1002(d) of the Act for $39,774.

After that finding was accepted by the Director of the DOR, Mitchell sought administrative review in the circuit court of Cook County. That court affirmed the DOR’s decision.

Defendant first contends section 905® should apply to his situation instead of section 905(c) and that issuance of the DOR’s notice of deficiency was barred by section 905®, which provides:

“(j) Withholding tax. In the case of returns required under Article 7 of this Act (with respect to any amounts withheld as tax or any amounts required to have been withheld as tax) a notice of deficiency shall be issued not later than 3 years after the 15th day of the 4th month following the close of the calendar year in which such withholding was required.” Ill. Rev. Stat. 1989, ch. 120, par. 9 — 905(j).

Defendant argues that pursuant to the statute of limitations set out in section 905(j), the notice of deficiency sent to him on May 27, 1988, was time-barred since the final day for issuing a notice for each of the years in question was: For 1981, the last day to issue a notice was April 15, 1985; for 1982, the last day was April 15, 1986; for 1983, the last day was April 15, 1987.

Defendant argues that the plain language of section 1002(e)(1) also supports his contention that the section 905(j) time limitation applies since that section provides that as to any penalty assessed, the notice, demand and collection shall be in the same manner as the original tax upon which the penalty is predicated. Ill. Rev. Stat. 1989, ch. 120, par. 10-1002(e)(l).

Defendant claims section 1002(e)(1) provides that any notice of deficiency asserting penalties for failure to pay withholding taxes must be issued within the period permitted for the assessment of withholding taxes, and that the DOR’s notice for penalties was time-barred in this case.

We disagree with defendant’s contentions.

While an administrative agency’s factual findings are considered prima facie correct and will not be set aside unless they are against the manifest weight of the evidence, a reviewing court is not bound to give the same deference to an agency’s conclusions of law since a reviewing court must exercise independent review and judgment. Kankakeeland Community Action Program, Inc. v. Department of Commerce & Community Affairs (1990), 197 Ill. App. 3d 1067, 1077, 557 N.E.2d 277; Russell v. Department of Central Management Services (1990), 196 Ill. App. 3d 641, 644, 554 N.E.2d 464; Illinois Bell Telephone Co. v. Human Rights Comm’n (1989), 190 Ill. App. 3d 1036, 1045-46, 547 N.E.2d 499; Rodgers v. Department of Employment Security (1989), 186 Ill. App. 3d 194, 198, 542 N.E.2d 168.

The penalties at issue here were imposed upon Mitchell in his capacity as a responsible officer of Mitco for his willful failure to cause a return to be filed and to collect and pay withholding taxes, pursuant to section 1002(d) of the Act.

Section 905(a) provides the general three-year statute of limitations for notices of deficiency.

Section 905(c) provides an exception to the general statute of limitations and is applicable in this instance. This section addresses the consequences of a total failure to file any return.

By its express terms, section 905(j) applies only to those withholding tax situations where returns have actually been filed. Where the return has been filed, a notice of deficiency must be filed within three years, three months and 15 days after the close of the calendar year.

The General Assembly further provided that there be an additional penalty for the failure to file withholding returns. Ill. Rev. Stat. 1989, ch. 120, par. 10 — 1004.

This seemingly minor penalty is “[i]n addition to any other penalties imposed by (the) Act.” Ill. Rev. Stat. 1989, ch. 120, par. 10— 1004.

Accordingly, the circumstances of this case are governed by section 905(c), which relates to taxpayers or persons derivatively liable for taxes who fail to file tax returns. In such cases, the notice of deficiency may be issued at any time without limitation.

The legislature’s distinction in this regard is perfectly reasonable. On the one hand (under section 905(j)), a return has been filed and the State may examine it, determine its reasonableness, conduct an audit or such other inquiry as may be appropriate. On the other hand (under section 905(c)), the State is not on notice that any wages were paid and sums withheld and ought not to be foreclosed from asserting the claim against the employer or someone derivatively liable for such taxes.

In order to come within the penumbra of section 905(c), the State must allege and prove that returns were not filed for the years in question, since the filing of returns would make section 905(j) applicable.

As to the returns for the years 1981 and 1982, defendant contends, and we agree, that the DOR made no attempt to check its records to determine whether the returns were filed and therefore did not carry its burden in showing that the returns were not filed.

The DOR’s investigator testified that he requested copies of Form IL-941 from the DOR Taxpayer Record Section for the quarters of 1983 only, and stated that he did not know if anyone else at DOR had requested copies of the 1981 and 1982 returns. Without foundation, he testified that it was his “recollection” that returns were not filed for 1981 and 1982. The DOR’s auditor acknowledged that she did not attempt to determine whether returns for the 1981 and 1982 period were filed, but rather relied upon the evidence produced in the investigation. She simply used the returns provided, which were for two quarters in 1983, to project back to 1981 and 1982 to compute defendant’s penalties for those years.

The Code of Civil Procedure specifies that “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110.) However, whether an agency has properly stated a prima facie case is a question of law, and a reviewing court must determine whether an agency abused its discretion. (City of Chicago v. Illinois Local Labor Relations Board (1988), 182 Ill. App. 3d 588, 594, 536 N.E.2d 1219.) It is an abuse of discretion if the agency’s factual determinations are against the manifest weight of the evidence. Basketfield v. Police Board (1974), 56 Ill. 2d 351, 358, 307 N.E.2d 371; Campbell v. Department of Employment Security (1991), 211 Ill. App. 3d 1070, 1080, 570 N.E.2d 812; Wilson v. Board of Fire & Police Commissioners (1990), 205 Ill. App. 3d 984, 990, 563 N.E.2d 941.

While we do not reweigh the evidence, we cannot say that the ALJ’s finding that defendant did not file returns for 1981 and 1982 is just and reasonable in light of the evidence presented. The evidence presented was merely the investigator’s “recollection” that those returns were not filed. There was no evidence introduced to establish that the returns were not filed, nor even any testimony that a search had been made for the 1981 and 1982 returns. There was no indication in the record of the basis of the investigator’s recollection.

A court may not hesitate to grant relief where the record does not disclose evidentiary support for the agency’s determination. (Basketfield, 56 Ill. 2d at 359; Commonwealth Edison Co. v. Property Tax Appeal Board (1983), 115 Ill. App. 3d 371, 378, 450 N.E.2d 780; Greene v. Board of Election Commissioners (1983), 112 Ill. App. 3d 862, 871, 445 N.E.2d 1337.) We find that the record in this case is devoid of any evidentiary support for the agency’s factual determination that returns were not filed for 1981 and 1982.

We disagree with the trial court that the DOR’s allegations that returns were not filed for 1981 and 1982 are entitled to a “prima facie presumption of correctness” so as to encourage taxpayers to keep comprehensive and accurate records, relying on Smith v. Department of Revenue (1986), 143 Ill. App. 3d 607, 493 N.E.2d 653. That case involved owners’ failure to pay taxes due under the Retailers’ Occupation Tax Act for seven furniture stores operated in Missouri and Illinois. However, in that case, the DOR had already established that the defendants filed no returns for taxes owed. The Smith court held that the DOR, having established a failure to file returns, was entitled to a presumption of correctness regarding its computation of the amount of tax owed. Smith, 143 Ill. App. 3d at 608, 610-11.

Plaintiff also contends that there is a presumption of correctness that attaches to the DOR’s determination and that defendant did not adequately rebut that presumption by testifying that he believed the returns were filed. However, we point out that before any presumption of correctness attaches, the agency must properly make its prima facie showing. Only after that is done is any presumption of correctness taken by a reviewing court. There was no prima facie showing here since the record fails to establish the DOR’s contention as being in accordance with the manifest weight of the evidence presented.

We acknowledge, however, that where the issue is merely one of conflicting testimony and a witness’ credibility, the agency’s determination is generally sustained. (Keen v. Police Board (1979), 73 Ill. App. 3d 65, 70-71, 391 N.E.2d 190; Letourneau v. Department of Registration & Education (1991), 212 Ill. App. 3d 717, 726, 571 N.E.2d 783.) But in the case at bar, the issue is whether the evidence provides just and reasonable support for the agency’s conclusion and is not a matter of witness credibility. See Letourneau, 212 Ill. App. 3d at 728.

Therefore, we must reduce the penalties assessed defendant under section 1002(d) to exclude those penalties charged for 1981 and 1982. According to the ALJ’s figures, a penalty was assessed against plaintiff for a total of $14,384.09 for all of 1981 and $20,143.60 for all of 1982. Subtracting these two amounts from the total penalty of $39,774.58 originally assessed defendant, we find defendant now owes only $5,246.89.

For the foregoing reasons, we affirm in part and reverse in part by reducing defendant’s section 1002(d) penalties to exclude the amounts from 1981 and 1982.

Affirmed in part and reversed in part.

RIZZI and CERDA, JJ., concur.

      Section 1002(e)(1) (Ill. Rev. Stat. 1989, ch. 120, par. 10 — 1002(eXl)) provides:
      “Except as provided in paragraphs (2), (3) and (4), the penalties provided by this Act shall be paid upon notice and demand and shall be assessed, collected, and paid in the same manner as taxes and any reference in this Act to the tax imposed by this Act shall be deemed also to refer to penalties provided by this Act.”

      Section 905(a) (Ill. Rev. Stat. 1989, ch. 120, par. 9 — 905(a)) provides:
      “Except as otherwise provided in this Act:
      (1) A notice of deficiency shall be issued not later than 3 years after the date the return is filed, and
      (2) No deficiency shall be assessed or collected with respect to the year[s] for which the return was filed unless such notice is issued within such period.”

      Section 905(c) (Ill. Rev. Stat. 1989, ch. 120, par. 9 — 905(c)) provides:
      “No return or fraudulent return. If no return is filed or a false and fraudulent return is filed with intent to evade the tax imposed by .this Act, a notice of deficiency may be issued at any time.”


author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISIS PINO, Defendant (Sam Adam, Petitioner-Appellant).
    First District (4th Division)
    No. 1—90—1440
    Opinion filed June 11,1992.

      Sam Adam, pro se, and Marc W. Martin, of Genson, Steinback & Gillespie, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Carol L. Gaines, Special Assistant State’s Attorney, and Renee G. Goldfarb and Joseph W. Colaianne, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Petitioner Sam Adam (hereinafter petitioner) appeals from the trial court’s award of reasonable attorney fees for his representation of defendant Isis Pino (hereinafter defendant), who was tried and convicted in absentia on various drug charges. Upon review, petitioner argues that the trial court should have awarded him attorney fees in the full amount of defendant’s bail bond ($200,000). Petitioner asserts that this award would be appropriate, because defendant agreed, before she disappeared prior to trial, that petitioner would receive the full amount of her bail bond deposit as attorney fees for petitioner’s representation of defendant. In the alternative, petitioner argues that the court should have granted him attorney fees for his representation of defendant in a prospective appeal from defendant’s convictions.

We affirm the trial court’s order, finding that the trial court properly awarded petitioner reasonable attorney fees for his representation of defendant at trial, and that the trial court was not obligated to award petitioner prospective attorney fees for his anticipated representation of defendant in an appeal from defendant’s convictions.

The record establishes the following. Petitioner agreed to represent defendant with respect to various drug charges that had been filed against her. This representation was to include matters arising during pretrial, trial, and post-trial proceedings against the defendant, as well as any appeal in the event the defendant were convicted of the charges against her. The defendant agreed that petitioner would receive the full amount of defendant’s bail bond, $200,000, as compensation for this representation.

The defendant did not appear for trial, and the matter proceeded against her in absentia. Following trial, defendant was found guilty and convicted of the various drug charges against her. Petitioner filed a notice of appeal on her behalf.

Petitioner then requested that the trial court award him the full amount of defendant’s bail bond, less clerk’s costs, as compensation for his representation of the defendant. The trial court refused to award the full amount of defendant’s bail bond to petitioner for legal fees, and declined to award petitioner attorney fees for his prospective representation of the defendant in an anticipated appeal from the defendant’s conviction.

The court held an evidentiary hearing with respect to the reasonable legal fees petitioner should receive for his representation of the defendant. Based upon this evidentiary hearing, the court concluded that petitioner was entitled to a net balance of reasonable attorney fees in the amount of $54,500. The petitioner appeals.

Upon review, petitioner does not contend that the sum awarded to him constitutes an unreasonable or inadequate attorney fee for the legal services he has provided to date on defendant’s behalf. Petitioner claims that the trial court should have awarded him the full amount of the defendant’s bail bond, less clerk’s costs, simply because this was the contractual arrangement to which defendant agreed before defendant absented herself from trial.

To support his position, petitioner relies upon section 110— 7(f) of the Code of Criminal Procedure of 1963, which provides in pertinent part that when the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause, the court may, at defendant’s request, order the bail deposit paid over to defendant’s attorney of record. (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 7(f).) However, the defendant in the instant cause did not perform all the conditions of her bail bond, i.e., she did not appear for trial, and her bail was therefore forfeited. (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 7(g).) Consequently, under the terms of section 110 — 7, the trial court was not obligated to award petitioner the full amount of the bail bond deposit for petitioner’s attorney fees in representing the defendant.

The trial court in the instant cause properly relied upon section 115 — 4.1(a), which states that if the defendant fails to appear for trial, the trial court may, “at the conclusion of all of the proceedings, *** order the clerk of the circuit court to pay counsel such sum as the court deems reasonable, from any bond monies which were posted by the defendant with the clerk, after the clerk has first deducted all court costs.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 4.1(a).) The trial court held an evidentiary hearing and based thereon determined the reasonable sum to be awarded petitioner for his attorney fees. (See People v. Maya (1985), 105 Ill. 2d 281, 473 N.E.2d 1287 (enumerating factors to be considered in determining reasonable fee to be awarded for legal representation of defendant tried in absentia).) The petitioner does not claim that the award granted by the trial court was against the manifest weight of the evidence presented at the court’s hearing.

In light of section 115 — 4.1(a), the trial court properly determined that petitioner was not entitled to the full amount of defendant’s bail bond, less clerk’s costs, for petitioner’s representation of defendant. Section 115 — 4.1 provides for the award of reasonable fees for an attorney’s representation of a defendant tried and convicted in absentia. The provision does not require that the trial court enforce the exact terms of the defendant’s original fee agreement with the attorney who appeared on the defendant’s behalf at trial. The purpose of section 115 — 4.1 is to ensure that a defendant tried in absentia receive adequate legal representation during his absence. (See Maya, 105 Ill. 2d 281, 473 N.E.2d 1287; People v. Barraza (1990), 193 Ill. App. 3d 655, 550 N.E.2d 59.) This goal is adequately achieved by an award of reasonable attorney fees to counsel who provided such representation at trial. There was no error in the trial court’s refusal to award petitioner the full sum of defendant’s bail bond deposit, less court costs, in the instant cause.

We also find no error in the trial court’s refusal to award petitioner a sum for his prospective representation of defendant in an anticipated appeal from defendant’s convictions. There is nothing in section 110 — 7 or 115 — 4.1 that allows the trial court to award prospective attorney fees for an anticipated appeal on behalf of a defendant who was tried and convicted in absentia and remains absent during the appeal. Petitioner attempts to justify this award on the theory that if he is not awarded prospective attorney fees for an appeal, the defendant’s right to an appeal will be thwarted. However, the defendant has no automatic right to an appeal while she remains in absentia, since the appellate court has the discretionary authority to refuse to hear her appeal until she returns to this jurisdiction. (See People v. Partee (1988), 125 Ill. 2d 24, 37, 530 N.E.2d 460.) We also note that although petitioner filed a notice of appeal on defendant’s behalf, petitioner did not file appellate briefs or perform other legal services with respect to the defendant’s appeal. Consequently, petitioner essentially seeks an award in attorney fees for services he has not yet provided. We do not believe the pertinent statutes were designed to grant petitioner speculative attorney fees for legal representation he may provide at an unspecified point in the future.

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

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.