text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT DUGAN, SR., Defendant-Appellant.
    Second District
    No. 2—92—0126
    Opinion filed December 4, 1992.

      Carol J. Lazzaro, of Lazzaro & Lazzaro, P.C., of Waukegan, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Robert Dugan, Sr., defendant, was charged by information with five counts of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(c)(1)(i).) Thereafter, the grand jury returned a true bill on a seven-count indictment. Following a bench trial, defendant was convicted of six counts of aggravated criminal sexual abuse and was sentenced to a term of seven years’ imprisonment. Defendant appeals both his conviction and sentence. For the following reasons, we affirm.

The victims in this case are B.B. and J.B., who were 11 and 12 years old at the time of trial, respectively. For three years prior to the time of the alleged offenses, defendant had been involved in a relationship with the mother of the children, Laura B.

Rodney B., the father of the children, and his wife, Robyn B., live in Florida. In a telephone conversation that took place on January 23, 1991, J.B. told.Robyn B. of a film on sexual abuse that she saw in health class. J.B. related to Robyn B. that defendant touched her breasts. In a telephone conversation later that day, J.B. informed Rodney B. that defendant touched her breasts on various occasions while she was lying on the couch with him. In a subsequent conversation, J.B. told Rodney B. of her bed-wetting problem and that defendant would check if she was wet by slipping his hand inside her underpants.

When Rodney B. questioned B.B. on January 23, 1991, she denied that any improper touches occurred. However, in a conversation on March 16, 1991, B.B. informed Rodney B. of an incident in December 1990 where defendant placed his penis between her legs and “started bouncing like when you’re trying to hold it when you have to go to the bathroom.”

The trial began on December 5, 1991. J.B. testified that she was 12 years old. J.B. reiterated that defendant touched her breasts under her bra and moved his hand in a circular motion on several occasions while she and defendant were lying on the couch watching television. J.B. also related that defendant sometimes checked if she wet her bed by touching her vaginal area inside of her underpants. Although J.B. thought these were bad touches, she was unsure until she viewed a film on sexual abuse at school. The activities to which J.B. testified constituted four counts of the indictment.

B.B. testified that she was 11 years old. B.B. stated that on several occasions while she was lying on the couch, defendant would rub her breasts. B.B. recalled that, in the early morning hours in December 1990, defendant went into her bedroom, woke her, and asked if she would like to watch a movie on television. Defendant took her to the living room couch, tuned in the Playboy channel, and removed his underwear. After defendant told B.B. to remove her underpants and get on top of him, he placed his penis between her legs and began “jumping,” or gyrating his hips. After a few minutes passed, defendant sat up and began to rub his penis. B.B. ran back to her bedroom and got into bed. Defendant followed her and “rub[bed] all over [her].” B.B. stated that she did not inform anyone of this incident because she saw movies with bad people on television and was afraid that defendant would kill her if she told. The activities to which B.B. testified constituted three counts of the indictment.

Defendant first contends that he was denied the right to fully confront the witnesses against him, particularly the children. During an interview with Timothy Rossi of the Department of Children & Family Services (DCFS) pursuant to a neglect petition filed against Laura B. in juvenile court, B.B. expressed the desire to live with her father in Florida. Following the trial, the defense became aware of B.B.’s statements to Rossi. Defendant contends that the State was obligated to disclose this information and the failure to do so foreclosed the opportunity to effectively cross-examine the children at trial.

In Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97, the Supreme Court held that the prosecution’s suppression of evidence favorable to an accused, upon request, violates due process where the evidence is material either to defendant’s guilt or to punishment. The Brady standard has been adopted by Illinois courts. (People v. Hoffman (1965), 32 Ill. 2d 96, 99-100.) Additionally, Supreme Court Rule 412 (134 Ill. 2d R. 412) specifically provides for pretrial disclosure of relevant information to the accused. Paragraph (c) is essentially a codification of Brady v. Maryland and requires the State to disclose to defense counsel “any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor.” (134 Ill. 2d R. 412(c).) Paragraph (g) of the rule delineates the scope of the State’s disclosure responsibilities as follows:

“Upon defense counsel’s request and designation of material or information which would be discoverable if in the possession or control of the State, and which is in the possession or control of other governmental personnel, the State shall use diligent good-faith efforts to cause such material to be made available to defense counsel; and if the State’s efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel.” 134 Ill. 2d R. 412(g).

Violations of the discovery requirements of Rule 412 are governed by the same standard as Federal due process claims under Brady. (People v. Gutirrez (1990), 205 Ill. App. 3d 231, 255.) Under this standard, a new trial is not warranted unless the information that was requested but undisclosed was “material.” In United States v. Agurs, the Supreme Court stated that “implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.” (United States v. Agurs (1976), 427 U.S. 97, 104, 49 L. Ed. 2d 342, 350, 96 S. Ct. 2392, 2398.) Regardless of whether the defense has made a general or specific request for the undisclosed information, “[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (United States v. Bagley (1985), 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383.) The defendant bears the burden of proving there was a reasonable probability that timely disclosure of the requested material to the defense would have affected the verdict. (Bagley, 473 U.S. at 683, 87 L. Ed. at 494, 105 S. Ct. at 3384; Agurs, 427 U.S. at 112, 49 L. Ed. 2d at 355, 96 S. Ct. at 2402.) When applying the materiality standard, the State’s omission must be evaluated in the context of the entire record, and the reviewing court may consider any adverse effect the nondisclosure may have had on defendant’s case. Gutirrez, 205 Ill. App. 3d at 254.

Defendant contends that the information concerning B.B.’s express desire to live with her father was the type of Brady information the State was required to disclose to him, and the failure to do so violated the discovery rules quoted above. Defendant was fully aware of the case pending against Laura B. in juvenile court. As the sentencing judge indicated, defendant could have moved for discovery of the file containing B.B.’s statements to DCFS prior to trial. Nothing in defendant’s boiler-plate discovery request indicates that he sought the information he now claims was wrongfully withheld. The committee comments to Supreme Court Rule 412 emphasize the role of the State regarding discovery:

“[T]he burden is upon defense counsel to make the request and to designate the material or information which he wishes to inspect. This paragraph avoids placing the burden on the prosecutor, in the first instance, of canvassing all governmental agencies which might conceivably possess information relevant to the defendant.” (134 Ill. 2d R. 412, Committee Comments, at 350.)

Defendant’s position on appeal places the burden to produce information on the prosecution, which is exactly what Rule 412 seeks to avoid.

Furthermore, defendant magnifies the importance of the alleged discovery violation. One line of the report states that B.B. missed her father and friends in Florida and wanted to return. Because the trial court found the credibility of the witnesses an important issue in this case, defendant contends the undisclosed information is “material” under Brady because it indicates a motive to fabricate.

In rendering its ruling, the court stated as follows:

“[The children] indicated they had no desire to be removed from the custody of their mother. They had no desire to leave this area to live physically. They had no desire to move to the state of Florida presumably to live with their natural father and what would be their stepmother. So I cannot conceive of their motivation for fabricating the story that they have testified to here today.”

However, we do not believe that disclosure of the DCFS report contained in the juvenile court file would have affected the judgment in this case. The trial judge stated that he found the children’s testimony “highly compelling, highly believable, highly credible,” and was satisfied that six counts of the indictment were “proven by more than beyond a reasonable doubt.” Although defendant contends that the nondisclosure inhibited his opportunity to cross-examine the children concerning their motive to fabricate, the record reveals the following interchange on J.B.’s cross-examination:

“Q. Would I also be correct, [J.B.], that you were somewhat jealous of Bobby [defendant] and the time your mother spent with him?
A. Yes.
Q. And you in fact were unhappy about your mother spending as much time with Bobby and little time with you, is that right?
A. Yes.
Q. And you called your father numerous times and told him about that?
A. Yes.”

The record also reveals that the defense repeatedly questioned B.B. on cross-examination concerning the reason she did not tell anyone of the incident where defendant allegedly placed his penis between her legs.

In entering his ruling, the trial judge stated that the children’s testimony that they loved defendant and believed he was a kind man “reinforces or indicates to me that [the children] would not make this up to harm someone that they loved or that they otherwise care for. It simply seems preposterous that they would do that.” Given that both girls were cross-examined concerning their motive to fabricate and the trial judge still found their testimony highly credible, we find that the information was not Brady material because there was no showing of a reasonable probability that the disclosure of the information contained in the DCFS reports would have changed the judgment of the court.

Section 115—10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115—10) provides an exception to the hearsay rule in a prosecution for a sexual act perpetrated upon a child under age 13. The rule allows testimony of out-of-court statements describing the child’s complaint of the sexual acts to another (Ill. Rev. Stat. 1989, ch. 38, pars. 115—10(a)(1), (a)(2)) to be admitted as evidence if the court finds after a hearing in camera “that the time, content, and circumstances of the statement provide sufficient safeguards of reliability” (Ill. Rev. Stat. 1989, ch. 38, par. 115—10(b)(1)) and the child either testifies at the proceeding or there is corroborative evidence of the act when the child is unavailable as a witness (Ill. Rev. Stat. 1989, ch. 38, pars. 115-10(b)(2)(A), (b)(2)(B)). The rule also provides that “[t]he proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” (Ill. Rev. Stat. 1989, ch. 38, par. 115—10(d); see also People v. Denning (1991), 219 Ill. App. 3d 428, 433.) The disclosure provisions of section 115—10(d) are designed to protect the defendant against surprise, unfairness, and inadequate preparation. However, when there has been no such prejudice, the admission of evidence is not reversible error even where the State has committed a discovery violation. Denning, 219 Ill. App. 3d at 432.

The State’s section 115—10 witnesses were Robyn B., Rodney B., and Douglas Schultze, principal of the children’s school. Each witness proffered testimony concerning statements made by the children concerning improper touches made by defendant. Defendant contends that the court abused its discretion by allowing the witnesses to introduce section 115—10 testimony without first requiring the State to disclose the particularities of their proposed testimony. In defendant’s words, this failure “created a trial by ambush consisting of evidence which the defense had no opportunity to investigate or to cross examine [sic], or to defend.”

The record in this case reveals that defendant requested discovery of the names and addresses of the State’s witnesses and their written or oral statements. The State responded to defendant’s request by disclosing the names and addresses of their proposed witnesses and attaching reports containing written recorded statements or verbatim reports of the proposed witnesses to the extent that they existed. Although Robyn B. testified at trial, her name was not on this list. Accordingly, defendant objected to Robyn B.’s section 115—10 testimony as undisclosed. However, the objection was overruled, since the defense failed to object at the time the section 115—10 testimony was introduced. Similarly, defense counsel made the following hearsay objection in response to Rodney B.’s testimony concerning conversations during which the girls related incidents of improper behavior by defendant:

“MR. LAZZARO [defense counsel]: The girls haven’t testified as to any of this. I think in fact they are testifying. I don’t know if counsel is going to make an offer of proof that they are going to testify. I realize the Court, instead of calling these out of order, that they are going to testify and they are going to testify to the substance of this, fine.
THE COURT: At this juncture I’ll overrule it. You may renew the objection in the event those witnesses don’t testify, but at this point, as you correctly stated, I was apprised that they’re witnesses who are here from some distance and I presume some witnesses are going to be presented on a normal, chronological or sequential order. So at this point I’m [going to] overrule the objection. ***
MR. LAZZARO: Just so I don’t continue interrupting, your Honor, I will have a continuing objection to any hearsay, understanding that it is being admitted subject to being stricken if the girls do not testify to this themselves.
THE COURT: Provided you renew the objection at the close of the State’s case assuming the witnesses don’t testify.
MR. LAZZARO: Show it’s a continuing objection.
THE COURT: I appreciate it and it will be noted and has been noted for the record.”

The court reiterated the above ruling after defense counsel objected to Douglas Schultze’s section 115—10 testimony on the same basis. However, these objections subsequently became moot since the children did testify at trial.

In spite of the lengthy discussion concerning defense counsel’s objections to the witnesses’ section 115—10 testimony, the record fails to indicate that any objection concerning section 115—10 disclosure was raised. The record also indicates that defendant failed to raise this objection in a post-trial motion. Defendant might have endured some prejudice if the State failed to disclose the particularities of its section 115—10 testimony prior to trial. However, the trial court must be afforded the opportunity to correct any errors by tendering an objection during trial and renewing the objection in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87.) Since the record fails to indicate that defendant preserved this issue for review by making the proper objections, we deem the issue waived. (See People v. Pinta (1991), 210 Ill. App. 3d 1071, 1076.) We further decline to address this issue under the plain error doctrine (134 Ill. 2d R. 615(a)) since the children themselves testified about the events related by the State’s section 115—10 witnesses and the defense failed to argue that it was surprised or prejudiced by such testimony.

Next, defendant contends that the court abused its discretion by allowing the testimony of the State’s section 115—10 witnesses to be admitted without making reliability findings. Under section 115—10, hearsay statements made by the victim regarding the sexual acts may only be admitted if, after a hearing in camera, the court finds that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. (Ill. Rev. Stat. 1989, ch. 38, par. 115—10(b)(1).) In People v. Coleman (1990), 205 Ill. App. 3d 567, the court reviewed section 115—10 in light of Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139, and determined that the admission of hearsay evidence under section 115—10 did not violate the confrontation clause if the State was able to show that (1) the witness was unavailable, and (2) the witness’ statement bears adequate “indicia of reliability.” (Coleman, 205 Ill. App. 3d at 581.) The Coleman court determined that the reliability finding provided by section 115— 10 “must be understood to be of a comparable nature with a finding that the circumstances of the statement render the declarant ‘particularly worthy of belief’ and, in reaching this decision, the court must consider only those circumstances which surround the making of the statement.” Coleman, 205 Ill. App. 3d at 584.

In People v. Kargol (1991), 219 Ill. App. 3d 66, 72-73, the Appellate Court, Fourth District, determined that the burden to request a hearing and reliability findings is on the proponent of the hearsay testimony or on the State. As such, the court held that the defendant did not waive the issue by failing to request a hearing. We note, however, that the defendant in Kargol was convicted by a jury. (See also People v. Smith (1991), 221 Ill. App. 3d 605 (jury conviction reversed and cause remanded for a new trial because the State did not seek a pretrial section 115—10 hearing for reliability findings before introducing hearsay testimony).) In People v. Roy (1990), 201 Ill. App. 3d 166, 182, a bench trial, defendant failed to object to the trial court’s failure to conduct a hearing and enter reliability findings. On review, the court found section 115—10’s requirement that the hearing be held “outside the presence of the jury” did not render it inapplicable to bench trials. (Roy, 201 Ill. App. 3d at 183.) However, the Roy court further found that the trial court’s failure to articulate reliability findings did not amount to plain error as “the trial court, as a trier of fact, is presumed to have only considered admissible evidence.” (Roy, 201 Ill. App. 3d at 183; see also People v. West (1992), 234 Ill. App. 3d 578, 590.) Similarly, in People v. C.H. (1992), 237 Ill. App. 3d 462, 471), also a bench trial, the trial court did not conduct a separate reliability hearing, but stated that it would rule on the admissibility of the hearsay statements after it heard the testimony. Since defendant did not object to this procedure during trial, the court in C.H. deemed the issue waived. Given the trial court’s remarks concerning the admissibility of the testimony and the presumption that the trial court considers only admissible evidence in a bench trial, the procedure did not amount to plain error.

These cases reveal an obvious distinction between plain error in a bench trial and a jury trial. The plain error rule applies only when the evidence is closely balanced or the alleged error so prejudicial that the defendant was deprived of a fair trial. (People v. Hayes (1990), 139 Ill. 2d 89, 143.) In a bench trial, it is presumed that the court considers only admissible evidence. However, without specific evidence that the trial court placed undue emphasis on unreliable evidence, the reviewing court is unable to determine that the alleged error or omission was so prejudicial that it deprived the defendant of a fair trial.

In this case, no reliability hearing was held prior to trial and, as noted by the trial court, defendant did not request a hearing or object to its absence either during trial or by post-trial motion. As each of the State’s section 115—10 witnesses testified, the defense failed to object on the basis that their testimony was not previously found to have the requisite “indicia of reliability.” Therefore, we deem the issue waived on review. Enoch, 122 Ill. 2d at 186-87.

We further find that this omission did not amount to plain error. As in C.H., the trial court made findings concerning the section 115—10 hearsay testimony after it was introduced. The court stated “with respect to the findings, had this been a jury trial, that the Court would have been required to make outside the presence of the jury under 115—10 ***, in fact I would find that they have been complied with.” Furthermore, the children’s testimony corroborated the hearsay statements introduced under section 115—10. For these reasons, we find that the trial judge considered the time, content, and circumstances during which the children’s statements were made to the witnesses who testified about the conversations. Although we do not condone the procedure of entering reliability findings after the witness has testified, any error which may have occurred was harmless.

Next, defendant contends that the State failed to prove him guilty beyond a reasonable doubt. Defendant notes that B.B. initially denied that defendant touched her improperly and that both girls testified that their mother or sister may have been in the same room when defendant touched their breasts. Defendant asserts that the evidence against him, namely, the section 115—10 hearsay statements and testimony of the victims, was inconsistent and improbable. He also contends that there was no evidence that he committed any of the offenses in question for the purpose of sexual arousal. Therefore, defendant asserts that the evidence was insufficient to prove him guilty beyond a reasonable doubt.

In People v. Schott (1991), 145 Ill. 2d 188, 203, our supreme court rejected its prior standard and held that a criminal conviction in a sex offense case will not be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. The proper test is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Schott, 145 Ill. 2d at 203.) It is the function of the trier of fact to weigh the credibility of the witnesses and resolve conflicts or inconsistencies in their testimony. A reviewing court will not substitute its judgment for that of the trier of fact who heard the evidence and had the opportunity to observe the demeanor of the witnesses unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. People v. Kelchner (1991), 221 Ill. App. 3d 25, 30.

In this case, the State introduced photographs of the children in poses where they were hugging defendant. Some of the photographs depicted defendant and one of the girls lying intertwined on the couch while dressed only in their underwear. These photographs demonstrated the type of behavior that was typical in the home. The girls’ mother, Laura B., found nothing wrong with the activities depicted in the photographs and admitted that she did not pay much attention to the actions of defendant and the girls while they were lying on the couch. The trial court viewed the photographs as a benchmark of the normal environment of the home. Consequently, the court did not find it unusual that the girls were unsure that these actions were improper until viewing a film on sexual abuse at school. Furthermore, the girls testified that they liked defendant and that he also gave them “good” touches.

In his brief, defendant compares the instant case with People v. Findlay (1988), 177 Ill. App. 3d 903, and People v. Falk (1970), 121 Ill. App. 2d 1, where convictions of sexual abuse were reversed because of insufficient evidence. In both cases, the alleged sexual abuse occurred where other persons were in close vicinity. However, the appellate court applied the prior standard of review which upheld a conviction only where the complainant’s testimony was clear and convincing or substantially corroborated by other evidence. Assuming arguendo these cases have any vitality after People v. Schott, the factual scenario in this case is quite different, as Laura B.’s testimony indicates that it is unlikely she would have recognized or disapproved of defendant’s improper behavior.

The thrust of defendant’s evidence consisted of denying any improper contact with the victims for the purpose of sexual arousal. In response to his claim that he would rub the girls’ breasts only while applying Vicks Vapo-Rub when they were ill, the court commented that “if the defendant applied Vicks, whether I look at it as a medicinal application or not, in the frequency that he testified, they would be buying that in 55-gallon drums.” The trial court stated that the credibility of the witnesses was an important issue and found the girls’ testimony “highly compelling, highly believable, highly credible.” The comment regarding the Vicks illustrates that the court did not have a high regard for defendant’s testimony. Further, the trial court carefully considered all the evidence, as demonstrated by the directed finding entered in favor of defendant on the count of the indictment alleging that defendant touched the vagina of J.B. for the purpose of sexual arousal.

A defendant’s intent may be established by circumstantial evidence and may be inferred from defendant’s conduct. (Kelchner, 221 Ill. App. 3d at 31.) An incident where a man places his penis between the legs of a child, begins to “bounce” or gyrate his hips, and masturbates in front of the child clearly demonstrates the intent of sexual arousal. Rather than inferring that defendant merely brushed up against their breasts, the girls testified that defendant touched them in a “circular motion” under their clothes and bra. Based on the evidence presented, we find that any rational trier of fact could have found that defendant possessed the intent to arouse his sexual desires and that he was guilty of the counts of the indictment of which he was convicted.

Finally, defendant contends that the court abused its discretion by imposing a sentence of seven years’ imprisonment. A trial judge is given broad discretion in determining the length and type of sentence. (People v. Black (1992), 223 Ill. App. 3d 630, 633.) A reviewing court will not substitute its judgment for that of the trial court because it might have given a different sentence by balancing the aggravating and mitigating factors differently. (People v. Carlson (1992), 224 Ill. App. 3d 1034, 1044.) Rather, the trial court may exercise wide discretion in the source and type of evidence it uses in determining the appropriate sentence. (People v. LaPointe (1981), 88 Ill. 2d 482, 496.) Thus, a sentence will not be reduced or vacated as excessive unless the sentencing judge abused his discretion by imposing a sentence that is manifestly unjust or palpably erroneous. People v. Wilson (1991), 143 Ill. 2d 236, 250; Kelchner, 221 Ill. App. 3d at 32.

Defendant asserts that he treated the victims like a father and that his contact with them resulted in no physical harm. We note that any sexual abuse, regardless of its extent, causes harm to the victims. The therapist’s analysis and victim impact statements indicate that both girls experienced emotional difficulties, exhibited by frequent crying, rage, nightmares, and feelings of guilt. However, the record indicates that the court did not consider the victim impact statements in imposing the sentence. After reviewing the presentence report and the statutory factors in aggravation and mitigation, the court found that defendant was not an appropriate candidate for probation. This decision was based mainly on defendant’s evaluation which indicated a wide range of abusive behaviors which are chronic and highly ingrained for which defendant exhibits little guilt or remorse. The court also commented on defendant’s status as a “surrogate father or perhaps husband” to Laura B. and the girls and that he abused their trust in this relationship. On this basis, the court considered defendant a dangerous individual.

We note that aggravated criminal sexual abuse is a Class 2 felony (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(g)), which carries a sentence of three to seven years’ imprisonment (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(5)). We conclude that defendant has not demonstrated an abuse of discretion in the imposition of a seven-year sentence.

For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.

Affirmed.

INGLIS, P.J., and BOWMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    JOSEPHINE CASTORENA, Plaintiff-Appellant, v. BROWNING-FERRIS INDUSTRIES OF ILLINOIS, INC., et al., Defendants-Appellees.
    Second District
    No. 2—90—1049
    Opinion filed July 22, 1992.
    Rehearing denied January 11, 1993.
    Caluwaert, Panegasser, Hancock & Schousen, of Elmhurst (Daniel J. Kordik, of counsel), for appellant.
    Coleman & O’Halloran, of Chicago (John M. O’Halloran, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Josephine Castoreña, filed a four-count amended complaint against the defendants Browning-Ferris Industries, Inc. (BFI), the City of Elmhurst (City) and Don Grotz (Grotz). The amended complaint alleged that plaintiff was injured when the car driven by Grotz, in which she was a passenger, struck a dumpster belonging to BFI, which was on a roadway controlled by the City. Following the close of the plaintiff’s case, the trial court directed a verdict in favor of BFI and the City. The jury returned a verdict in favor of plaintiff and against Grotz (an uninsured motorist) in the amount of $164,280.

Plaintiff appealed to this court. This court reversed the order directing a verdict in favor of BFI and the City, and remanded the cause. (See Castorena v. Browning-Ferris Industries of Illinois, Inc. (1991), 217 Ill. App. 3d 328.) The supreme court denied leave to appeal but remanded the cause to this court for reconsideration of our decision as to the City only, in light of its decision in West v. Kirkham (1992), 147 Ill. 2d 1.

The relevant facts have been set forth in the prior opinion in this case and will not be repeated here. (See Castorena, 217 Ill. App. 3d at 337-38 (Geiger, J., specially concurring).) The sole issue to be resolved is whether the trial court erred in directing a verdict in favor of the City on the basis of section 3—104 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3—104).

Section 3—104 provides as follows:

“Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” (Ill. Rev. Stat. 1987, ch. 85, par. 3-104.)

Relying on Janssen v. City of Springfield (1980), 79 Ill. 2d 435, and modifying the view previously taken in Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, this court determined that the immunity under section 3—104 was not available to the City in this cause because there was evidence that the City had been placed on notice that a dangerous condition existed by virtue of a prior similar accident. We distinguished the case of Newsome v. Thompson (1990), 202 Ill. App. 3d 1074, on the basis that there was no evidence in that case that placed the City of Chicago on notice of the existence of a dangerous condition. Castorena, 217 Ill. App. 3d at 333-35.

Recently, our supreme court decided the case of West v. Kirkham. In that case, West was injured when, while attempting to make a left-hand turn, her car was struck by the Kirkham car, which was proceeding through the intersection. West filed suit inter alia against the City of Urbana (Urbana), alleging that Urbana had failed to provide traffic control devices and proper warnings. The trial court granted Urbana’s motion for summary judgment, finding that Urbana’s alleged negligence was immunized by the Tort Immunity Act. The appellate court reversed, finding no immunity. The supreme court granted leave to appeal.

The supreme court concluded that the motion for summary judgment had been properly granted by the trial court. The court first pointed out that section 3—104 applies where the municipality fails to provide a traffic control device in the first place, not where an existing device failed to work. Next, the court pointed out that, unlike sections 3—102(a) and 3—103(a) (Ill. Rev. Stat. 1987, ch. 85, pars. 3—102(a), 3—103(a)), no reference is made to notice in section 3—104. From this, the court concluded that the legislature did not intend for the immunity conferred by section 3—104 to be limited to situations where the municipality is not on notice of a dangerous condition. West, 147 Ill. 2d at 6-9.

The special concurring opinion in Castoreña would have based the liability of the City on its general duty to exercise ordinary care in maintaining its property in a reasonably safe condition. (Ill. Rev. Stat. 1987, ch. 85, par. 3—102(a).) In West, plaintiff argued that Urbana was required to install a left-hand turn arrow as part of its duty to maintain its property under section 3—102(a). The supreme court rejected that argument, stating as follows:

“[West’s] argument ignores the opening phrase of the section which states, ‘[ejxcept as otherwise provided in this Article.’ It is ‘otherwise provided’ in section 3—104, which is located in article III with section 3—102(a), that a municipality does not have a duty to provide traffic control devices. Thus, the obligation to provide traffic control devices is expressly excluded from the purview of the general duty to maintain found in section 3—102(a). This limitation on the scope of the duty in section 3—102(a) is in keeping with the scope of that duty as it existed at common law. The Tort Immunity Act creates no new duties but merely codifies those existing at common law.” (Emphasis in original.) (147 Ill. 2d at 14.)

As section 3—104 includes not only traffic control devices but warning devices as well, the City was under no duty to provide warning devices under section 3—102(a).

Based upon our supreme court’s decision in West v. Kirkham, we hold that, as to the City only, the trial court was correct in granting the motion for a directed verdict in its favor. See also Wood v. Village of Grayslake (1992), 229 Ill. App. 3d 343.

The judgment of the circuit court is affirmed as to the City; the judgment is reversed and the cause remanded as to BFI.

Affirmed in part; reversed and remanded in part.

BOWMAN and GEIGER, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICARDO SPANN, Defendant-Appellee.
    Second District
    No. 2—91—0685
    Opinion filed December 8, 1992.

      Gary V. Johnson, State’s Attorney, of Geneva, and Michael B. Levy, of Chicago (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    George W. Chabalewski, Public Defender, of Geneva, and G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, and Anne S. Quincy, both of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The State appeals the order of the circuit court granting the motion of defendant, Ricardo Spann, to quash his arrest. The issues on appeal are whether the police had grounds to stop and frisk defendant and whether the police had probable cause to believe a bag concealed in defendant’s pocket contained contraband.

A grand jury indicted defendant for the possession of a controlled substance (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(b)). On October 9, 1990, detective sergeant Mark Brictson of the Elgin police department obtained a warrant to search the apartment of Haywood Hughes at 602 Raymond Street in Elgin. Brictson had been in the apartment four times, had participated in two controlled drug purchases there, had watched the location periodically in September 1990, and had obtained information from a confidential informant. Brictson saw people enter the apartment and leave a couple minutes later; this traffic is typical of drug sales. He also had information that guns were in the apartment. The warrant made no reference to defendant, and Brictson had never seen him there. On the evening of October 9, Brictson and five other officers executed the warrant. One of the officers was from the Bureau of Alcohol, Tobacco and Firearms. Brictson testified that, when raiding narcotics operations, drug dealers use weapons to protect the premises and the police will often recover weapons.

Detective Philip Danner also executed the warrant. When the officers arrived outside Hughes’ apartment, they did not see Hughes’ car. They saw a different man drive to the location, park, knock on the apartment door, and enter the apartment when someone opened the door. Two minutes later, the officers saw Hughes’ car arrive, but he was not in it. The officers then entered the apartment. Brictson knocked on the door and announced “police” as he opened the door. Hughes and the man who previously arrived, whom Danner then recognized as defendant, were walking toward the door. Danner said, “Hello,” and defendant said, “Oh, shit.” He was looking around the apartment nervously, but he was not moving his hands or feet. Danner testified he was concerned with his safety. Danner knew that defendant had pending charges concerning the possession of cocaine and that he had an extensive criminal history, which included arrests for weapons charges. Danner ordered him to stand against the wall and frisked him.

Danner felt a bulge in defendant’s right front pocket. The bulge was smaller than an egg or about an inch wide. Danner squeezed it through defendant’s denim, and the bulge felt as if it had a powdery consistency. It did not appear to be a weapon. Danner thought that the bulge possibly contained cocaine. He pulled the bag from defendant’s pocket and saw a white, powdery substance in the bag. At the hearing, Danner stated he had seen and felt cocaine a hundred times, but he did not answer defendant’s question whether he had any training in distinguishing the feel of various substances. He knew cocaine felt powdery and crystalline. Danner had no definite information that defendant had cocaine prior to the removal of the bag from his pocket.

The trial court entered written findings in which it stated that the stop and frisk of defendant were proper but that the police officers failed to articulate a basis for suspecting defendant had a weapon or a basis for a more intrusive search grounded upon the feeling of something that did not appear to be a weapon. The trial court granted defendant’s motion to suppress evidence^ and the State appeals.

The State argues that the officers had justifiable reasons to frisk defendant because they believed a weapon was on the premises of a drug operation. The State also argues that, based on the totality of the circumstances involving defendant’s history and location, Danner had enough information supporting probable cause to believe the soft bulge in the pocket was cocaine. Defendant argues that the stop and frisk were improper and that Officer Danner did not have probable cause to search defendant.

A trial court’s decision to suppress evidence will not be overturned on review unless that decision is clearly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162.) Although the defendant has the burden of proof to make a prima facie showing that the police obtained the evidence illegally, once the defendant satisfies that burden, the burden of proof shifts to the State to show that the search was legal. (People, v. Simmons (1991), 210 Ill. App. 3d 692, 696.) Warrant-less searches are per se unreasonable; thus, when the defendant challenges a warrantless search and has presented evidence that he was doing nothing unusual at the time of the search, the State must demonstrate the legal justification for the search. 210 Ill. App. 3d at 699.

A police officer may make a valid investigatory stop even without probable cause to make an arrest if the officer knows sufficient articulable facts which create a reasonable suspicion that the person has committed or is about to commit a crime. (People v. Morales (1991), 221 Ill. App. 3d 13, 17.) For fourth amendment purposes, a valid warrant to search a location for contraband implicitly authorizes the detention of the occupants while the premises are being searched. (People v. Edwards (1991), 144 Ill. 2d 108, 126.) However, a person may not be searched during the execution of the search warrant merely because that person happens to be on the premises. (Ybarra v. Illinois (1979), 444 U.S. 85, 90-91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 341-42; Simmons, 210 Ill. App. 3d at 699.) The State must show an independent probable cause or show a sufficient connection between the premises and the person searched. (People v. Gutierrez (1985), 109 Ill. 2d 59, 62.) Moreover, the inference that a person talking to a narcotics dealer at a trafficking location is engaging in criminal traffic of narcotics is not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security. (People v. Harper (1992), 237 Ill. App. 3d 202, 206, citing Sibron v. New York (1968), 392 U.S. 40, 62, 20 L. Ed. 2d 917, 934, 88 S. Ct. 1889, 1902.) The police had no information connecting defendant with Hughes or his residence; they saw defendant commit no crime; and he was doing' nothing threatening. Nevertheless, the trial court upheld the validity of the stop and frisk. Thus, the court put more weight on the officers’ testimony that defendant was acting suspiciously. While there are few facts to support the conclusion, it is not against the manifest weight of the evidence.

Defendant also argues that even if the police could stop a suspect, the right to frisk that person does not automatically follow the right to stop. (Galvin, 127 Ill. 2d at 165.) An officer may frisk the person only if the officer has reason to believe that he is dealing with an armed and dangerous individual and that the safety of the officer or others is in danger. (Morales, 221 Ill. App. 3d at 17.) The sole justification of the frisk is to protect the officer or others nearby but not to gather evidence. Galvin, 127 Ill. 2d at 170; Morales, 221 Ill. App. 3d at 17-18.

The trial court found that the State was justified in making a protective frisk but that the officer failed to articulate a basis for believing defendant had a weapon. This finding is not manifestly erroneous. Although Brictson said he brought a firearms officer with him, he never specified what source of information led him to believe a weapon was present in the apartment. Moreover, defendant was not named in the search warrant, made no furtive gestures, and showed no indicia of having a concealed weapon. (Cf. Morales, 221 Ill. App. 3d at 18 (large object made a visible bulge in suspect’s clothing).) The State argues, citing People v. Pantoja (1989), 184 Ill. App. 3d 671, that an officer may consider a suspect’s dangerous history, but in Pantoja we held that no facts corroborated the belief that the defendant there was armed at the time of the stop (184 Ill. App. 3d at 675; see also People v. Condon (1992), 148 Ill. 2d 96, 104 (record did not indicate any threatening behavior)). Similarly, here there was no evidence that defendant was armed at the time he was ordered to put his hands on the wall. See Harper, 237 Ill. App. 3d at 207.

Moreover, because the bulge in defendant’s pocket was small and soft and did not seem to be a weapon, Danner could not further search defendant to satisfy the officer’s curiosity. (People v. Goodey (1991), 223 Ill. App. 3d 393, 396; People v. Ricksy (1990), 206 Ill. App. 3d 302, 309-10.) During an investigatory stop, the officer may not remove an item that does not feel like a weapon. Morales, 221 Ill. App. 3d at 18; cf. People v. Day (1990), 202 Ill. App. 3d 536, 545 (where officer felt something under the suspect’s clothing that had a straight edge like a razor, the officer was justified in pulling out the item, which happened to be an envelope containing drugs).

The State next argues that the trial court erred in determining the officer did not possess probable cause to justify a search of the pocket. Even when the officer knows the item hidden under the clothing is not a weapon, the inquiry into the reasonableness of his further search is not final.

“ ‘Assuming the object discovered in the pat-down does not feel like a weapon, this only means that a further search may not be justified under a Terry analysis. There remains the possibility that the feel of the object, together with other suspicious circumstances, will amount to probable cause that the object is contraband or some other item subject to seizure, in which case there may be a further search based upon that probable cause.’ ” (Morales, 221 Ill. App. 3d at 18, quoting 3 W. LaFave, Search & Seizure §9.4(c), at 524 (2d ed. 1987).)

An officer’s entry into an individual’s pocket may be justified if the experienced officer’s tactile perception, coupled with other circumstances, is sufficient to establish probable cause to arrest that individual for possession of narcotics before entry into the pocket. (Morales, 221 Ill. App. 3d at 19.) Before the trial court, the prosecutor argued that an officer need not ignore an item, immediately apparent as contraband, found during a protective search merely because the item is not a weapon and cited Michigan v. Long (1983), 463 U.S. 1032, 1050, 77 L. Ed. 2d 1201, 1220, 103 S. Ct. 3469, 3481. See also Texas v. Brown (1983), 460 U.S. 730, 742-43, 75 L. Ed. 2d 502, 514, 103 S. Ct. 1535, 1543-44; People v. House (1986), 141 Ill. App. 3d 298, 300-01.

An officer has probable cause to make an arrest when the totality of circumstances would permit a reasonably prudent person to believe that the suspect is committing a crime. (People v. Montgomery (1986), 112 Ill. 2d 517, 525.) A seizure, for fourth amendment purposes, is synonymous with an arrest. (People v. Melock (1992), 149 Ill. 2d 423, 436.) The State argues that Danner had probable cause to believe the bulge in defendant’s pocket contained cocaine, citing Morales. In Morales, during a justifiable stop and frisk the officer could discern that the large and visible bulge was too soft to be a weapon. However, the feel of the bag and the crackling sound made when he pressed it led the officer to conclude the bag contained a leafy substance. Just before the stop and frisk, the officer saw Morales surreptitiously exchange something with another man and then walk away when the police approached. The feel of the bag during the protective search provided the additional evidence necessary to pass the probable cause threshold to believe the bag contained marijuana, given the totality of the circumstances. Morales, 221 Ill. App. 3d at 15-17; cf. People v. Jones (1991), 214 Ill. App. 3d 256, 259; People v. Kolody (1990), 200 Ill. App. 3d 130, 135; People v. Clark (1989), 185 Ill. App. 3d 231, 238 (it is not enough for an experienced officer to see the type of envelope commonly used to contain contraband or even a hand-rolled cigarette; probable cause to believe the item contains contraband arises only when there are other suspicious and distinctive circumstances such as furtive movements); see also People v. Tate (1967), 38 Ill. 2d 184, 187; People v. Symmonds (1974), 18 Ill. App. 3d 587, 595-98.

A trial court’s ruling on a motion to suppress will not be reversed unless the ruling is manifestly erroneous. (People v. Henderson (1990), 142 Ill. 2d 258, 293.) We do not believe the trial court erred when it found insufficient evidence to support a warrantless search of defendant’s pocket. Unlike Morales, the officers did not see defendant exchange anything with Hughes, the subject named in the search warrant. While a person may be detained during the execution of a search warrant (Edwards, 144 Ill. 2d at 126), he may not be searched merely because he happens to be present on the premises (Ybarra v. Illinois (1979), 444 U.S. 85, 90-91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 341-42; Simmons, 210 Ill. App. 3d at 699). The probable cause requirement cannot be undercut or avoided by the simple pointing to the fact that coincidentally there exists probable cause to search the premises where the suspect is found. (210 Ill. App. 3d at 700.) Defendant was doing nothing unusual when the police entered the apartment.

Assuming the police had a right to frisk defendant, at most Danner had a suspicion or a hunch that the soft bulge was caused by a bag of cocaine. This tactile sensation of a packed powder, even with the other circumstances, did not give Danner probable cause to arrest defendant and further search him to ascertain the substance’s visual appearance, which might have revealed additional clues of the substance’s chemical nature. Danner could not explain how the bulge felt different from any legitimate contents of pockets. A powder alone is not illegal. There must be some other distinctive evidence to demonstrate its illegality. The trial court did not believe that Danner could discern the tactile composition of cocaine, if it is distinctive, from his feeling of the packed powder through denim. (See State v. Dickerson (Minn. 1992), 481 N.W.2d 840, 846, cert. granted (1992), _ U.S. _, 121 L. Ed. 2d 22, 113 S. Ct. 53 (no “plain feel” exception to the fourth amendment).) The trial court operates as the determiner of the credibility of the witnesses and the weight to be given their testimony. (Galvin, 127 Ill. 2d at 163.) The trial court’s determination is not manifestly erroneous, and we affirm.

For the above reasons, the order of the circuit court of Kane County is affirmed.

Affirmed.

INGLIS, P.J., and BOWMAN, J., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE JACKSON, Defendant-Appellant.
    Second District
    No. 2—90—0891
    Opinion filed December 3, 1992.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Richard E. Zulkey, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Willie Jackson, was convicted of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18—2(a)) and sentenced to 15 years’ imprisonment. On appeal, he argues that the trial court erred by denying him the opportunity to impeach one identifying eyewitness with evidence that the witness had misidentified a suspect in an unrelated case.

The cause involved the armed robbery of a Domino’s Pizza store in Zion. The two employees identified defendant as one of the perpetrators. Defendant presented an alibi defense. Prior to trial, the State presented a motion in limine to exclude evidence that Mohamed Vakili, one employee, had misidentified a man who assaulted him three weeks prior to trial. When shown photographs of suspected assailants, Vakili selected a photograph of a man who was allegedly incarcerated. The court reserved its ruling on the motion.

On November 5, 1989, a Sunday, at 4:13 p.m. Lisa Naeyaert was working as the assistant manager of a Domino’s Pizza store. She was answering telephones at a counter about five feet from the door. The store was well lit. Two men walked into the store. One man was black, 5 feet 9 inches tall, weighing about 180 pounds and wearing a grey, hooded sweatshirt under a red, satiny jacket, a black cap and black-framed eyeglasses. The second man was black, 6 feet 2 inches tall, weighed about 180 pounds, wore a black T-shirt, a red, satiny jacket, and jeans, and had a slight moustache. The taller man asked to use the bathroom, but Naeyaert told him none was available and directed him across the street. The men then placed a carry-out order and left.

The same two men returned about two minutes later and stated that no rest room was available across the street and that they wanted to use the Domino’s rest room. Naeyaert denied their request and turned to make some pizzas. About 30 seconds later, the taller man was at her right side in the private area of the store. He said, “Ma’am, this is a hold-up.” She then saw the shorter man holding a gun at the other employee, Mohamed Vakili. The taller man tried to open the cash drawer, but it was locked. He told her to get the keys. She checked her pockets but found only her car keys. She walked into the back office, followed by the taller man. She did not see the keys, checked her pockets again, and found the key. She unlocked the drawer, and the taller man took the money. While the shorter man backed toward the door, the taller man walked toward the door. She caught another glimpse of him when he turned to exit. The men turned, walked across the lot, turned to look back at the store, and ran down the street. It was not dark outside. She had been between two and nine feet from the robbers during their presence in the store.

In court, Naeyaert identified defendant as the taller man who took the cash from the drawer. About two hours after the robbery, she viewed six photographs at the Zion police department. The police officer did not tell her that one of the men would be in the array. In court, Naeyaert identified the photograph she selected as the perpetrator on November 5. She also identified defendant as the man in the photograph.

Naeyaert also remembered that the perpetrator’s eyes were red and glassy, as if he had been drinking; however, she did not include this fact in her description to the police. She did not tell the police whether the perpetrator’s skin was light or dark, but she said his hair was short. While he was in the store, she saw his face only for a few seconds at a time. She also paid attention to the fact that he touched the drawer handle; she did not touch the handle because she wanted to preserve his fingerprints. In the array of photographs, while all the subjects were black, some had lighter or darker skin color. Upon reviewing the photographs on cross-examination, Naeyaert admitted that defendant’s skin was the darkest of the lot. The police never conducted a lineup or a showup of the defendant in person.

Mohamed Vakili testified that he saw the two men enter the store. The taller man was about 6 feet 2 inches tall with broad shoulders, in his mid to late twenties, weighed about 180 to 185 pounds, and wore short hair and a small moustache. Vakili could not remember their jackets. Vakili was about two or three feet away from the men across from the order counter. The room was fairly well lit by fluorescent lights. A deliveryman took an order from the men while Vakili was taking telephone orders. Vakili did not look directly at the taller man. After Vakili posted the order taken by the deliveryman, he turned to make pizzas. Five to ten minutes later, he saw the two men, who were demanding money while standing on the employee side of the counter. The shorter man held a gun to Vakili’s nose and said, “Maybe you’ll cooperate if I shoot this person.” The taller man was four to five feet from Vakili and looked at both him and Naeyaert. While being pushed around by the shorter man, Vakili could see the taller man’s face. Vakili watched him for about a minute and from only a foot away as they went to the back office and back to the register. Naeyaert opened the drawer. Vakili could see the taller man’s face when the men removed the money from the drawer.

Vakili believed that he had seen the taller man several times before on the street and twice in the store. In court, Vakili identified defendant as the taller robber. The Zion police department showed him many photographs of black males between the ages of 20 and 60. He viewed 21!z trays of photographs. In court, Vakili identified the photograph he selected the evening of November 5 and identified defendant as the subject of the photograph. Vakili stated that while he had seen the man before the robbery, he did not know his name. The police gave Vakili no opportunity to identify him in person or to view a lineup. He remembered that the perpetrator had big and pink eyes, that his skin was dark, and that he had a wrinkle on his forehead.

During cross-examination, defendant sought to impeach Vakili by confronting him with evidence of the misidentification in the subsequent mugging incident. The trial court permitted defendant to examine Vakili outside the presence of the jury to establish an offer of proof. One night about three weeks prior to the trial, Vakili and his brother were assaulted by three men. The Zion police department had Vakili examine three handfuls of photographs of black males from which he identified one. Vakili was subsequently told that this subject was in the penitentiary at the time of the assault. During the assault, Vakili had only one or two minutes to see the subject, and the light came from a streetlight about a block away. Vakili claimed to have experienced memory problems in the last few months because of stress. Based on this testimony, the trial court ruled that the defendant could not impeach Vakili with this line of evidence.

Officer Charles Kehr of the Zion police department testified that whether a fingerprint is left on a surface depends on the texture of the surface or on smudging. Kehr saw the evidence technician remove prints from a counter and a glass partition. Kehr also examined an order form for a pizza which the employees told him was placed by the robbers. The form listed a telephone number which Kehr determined was registered to an address of 8343V2 S. Racine Street in Chicago.

Detective Ray Nichols of the Zion police department testified that on November 5, 1989, he presented approximately 200 photographs in four trays to Vakili. The photographs showed only black males of varying ages. Vakili selected one from the second tray. In court, Nichols identified the photograph of defendant as the one Vakili selected. Nichols then testified that he called Naeyaert to the station to view an array of six photographs, and she selected defendant’s photograph. Nichols kept Vakili in a separate room when Naeyaert made her selection and did not tell her that Vakili had selected a suspect until she had made hers. When selecting the five other photographs for the array, Nichols was not aware that Vakili had told a police officer that the suspect had dark skin.

Nichols arrested defendant in Chicago on February 11, 1990. Defendant said that his address was 3855 S. Princeton, he was 6 feet 2 inches tall, and he weighed 185 pounds. The police department never determined the identity of the gunman of the robbery. Nichols made a copy of defendant’s fingerprints, but they did not match those found at the scene of the crime on the counter or drawer.

Defendant called Barnette Beasley, his fiancee, to testify. On November 5, 1989, defendant went to her apartment at 942 Cleveland Street in Chicago at 3:15 p.m. He left for about five or seven minutes to run to the store around the corner with friends. They liked to buy food on Sundays when they watched football games. He did not leave the apartment again that afternoon.

Beasley remembered that weekend because on Friday, November 3, they both went to city hall to get their baby’s birth certificate, and the next day she braided defendant’s hair. She identified a certified copy of the birth certificate, which was stamped “NOV 03 1989.” That Sunday was also unusual because Kevin Johnson had come with their usual friends Keith Burruss, Gene and Rochelle Porter, and others. She did not discuss her testimony with anyone. She stated that she had known defendant for six years, one of his eyes noticeably leaned or strayed, and he would not wear glasses. She did not know November 5 would be important until three months later. She usually shops for groceries when her check arrives, usually on the third day of the month.

Keith Burruss remembered meeting Beasley and defendant at city hall on November 3. That day was one of the few times he had ever gone there. They then went to the residence on Cleveland Street. He left on November 4 and returned November 5 with Kevin Johnson. They stayed the whole day except when they went to the store. Defendant was with them the whole day. Burruss did not discuss his testimony with anyone and would not lie to protect defendant. Burruss did not know at the time that the date of November 5 would be important.

Defendant also testified that on the afternoon of November 5 he was home with Beasley, Burruss, Johnson, and other friends. He left to go to the store for about 10 minutes. He had never been to the Domino’s Pizza store in Zion and did not know where it was.

Gene Porter testified that on November 5, 1989, he watched a football game with defendant and other friends. They spent a few minutes going to the store, and he thought they went during halftime, about 1 p.m. They all stayed for dinner, and Porter left about 9 p.m. He remembered the date because he also bought a car that day, and his wife took Beasley to the grocery store in it. Beasley would have received her check on the third of the month.

Kevin Johnson failed to respond to the subpoena requiring his presence at the trial.

The counsel made closing arguments, and the court instructed the jury. When the jury requested to see the photographs, the court granted the request. The trial court cut the photographs so only the faces and not the police booking numbers were visible. The remaining portions of the photographs, below the subjects’ necks, have not been preserved in the record on appeal. The back of defendant’s photograph bears a notation of “HGT: 602 WGT: 185.” The other photographs bear similar notations of height and weight. Each of the six photographs shows a young, black male with a small moustache and short hair, although the shade of skin varies. The jury asked the court whether the fact that the court admitted the six photographs into evidence meant that the evidence was “procedurally correct.” The court declined to answer the question. The jury found the defendant guilty. The trial court denied counsel’s motion for a new trial and defendant’s pro se motion for a mistrial which was based in part on his statement that the other five subjects in the photographs had different heights, weights, and complexions.

We first note that the prosecution has the burden of proving beyond a reasonable doubt the identity of the person who committed the crime. (Ill. Rev. Stat. 1991, ch. 38, par. 3—1; People v. Slim (1989), 127 Ill. 2d 302, 307.) A single witness’ identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. (Slim, 127 Ill. 2d at 307; People v. Richardson (1988), 123 Ill. 2d 322, 353.) The jury has the burden of determining the credibility of the witnesses, weighing the evidence, drawing reasonable inferences, and resolving conflicts in the evidence. (Slim, 127 Ill. 2d at 302.) A reviewing court will not set aside a judgment unless the proof is so implausible as to create a reasonable doubt of the defendant’s guilt. (127 Ill. 2d at 307; People v. Collins (1985), 106 Ill. 2d 237, 261.) The weight given to alibi evidence is a question of credibility for the jury, which has no obligation to accept the alibi testimony over a positive identification. In re C.A.H. (1991), 218 Ill. App. 3d 577, 581.

Defendant notes that the identification was the central question in the cause (see Richardson, 123 Ill. 2d at 353) since the State produced no physical evidence linking defendant to the crime despite the lifting of fingerprints. Defendant contends that the identification by Naeyaert was suggestive because defendant’s skin was darker than that of any of the five other men in the photographs. (Cf. Richardson, 123 Ill. 2d at 348.) Defendant’s photograph was placed in Naeyaert’s array because Vakili selected that photograph. Defendant argues that, particularly in view of this suggestive procedure, the trial court erred when it refused to allow defense counsel to cross-examine Vakili concerning his alleged misidentification of an assailant in the unrelated incident occurring approximately three weeks before the trial.

Defendant has located only one case bearing on this issue. In People v. Renslow (1981), 98 Ill. App. 3d 288, the defendant sought to impeach the identifying witness by asking him whether he selected a photograph of the second perpetrator of the robbery. The court held that such proposed impeachment would have been improper because the defendant had not shown that the witness actually misidentified the second robber; otherwise, the court commented, the evidence would have been admissible. (98 Ill. App. 3d at 293-94.) The State notes that, in Renslow, the witness’ ability to observe the first robber was the same as that of the second robber, whereas in the cause before the court the circumstances were entirely different.

The trial court has a wide latitude of discretion in controlling cross-examination. (Collins, 106 Ill. 2d at 269.) Generally, a defendant has the right to pursue any kind of impeachment of the witnesses because one of the purposes of cross-examination is to test the credibility of the witnesses. (106 Ill. 2d at 269.) Since the credibility of the witness is always relevant, defendant’s proposed impeachment was arguably relevant. His purpose was to cast into doubt Vakili’s identification or experiential abilities.

However, the cross-examiner may not impeach a witness on a collateral matter by introducing extrinsic evidence; the cross-examiner must accept the witness’ answer. To determine whether a matter is collateral, the court tests whether the matter could be introduced for any purpose other than to contradict the witness’ assertion. (Collins, 106 Ill. 2d at 269.) This rule prevents surprise, the waste of time, and the confusion of the jury with extraneous issues.

In the cause before the court, defendant offered to impeach Vakili through cross-examination only rather than with the introduction of extrinsic evidence. Vakili would have testified that he did select a photograph of a man he suspected had assaulted him. However, his proposed testimony that the person he selected was incarcerated at the time was inadmissible hearsay. Defendant made no offer of proof establishing the existence of admissible evidence to prove that the person was incarcerated at the time in question. Even assuming the existence of such evidence, it would have violated the collateral evidence rule. (Collins, 106 Ill. 2d at 269.) The identity of this assailant was not directly relevant to the issue of who robbed the pizza store. Thus, defendant’s proposed testimony would have relied on collateral matters which were not admissible. The trial court’s ruling which barred the line of testimony prevented confusion potentially arising from diversion of the jury’s attention from the central issue in the trial.

Although the trial court may have some discretion in applying the collateral evidence test (Collins, 106 Ill. 2d at 269-70; 3A J. Wigmore, Evidence §1003, at 964; §1006, at 978 (Chadbourn rev. 1970)), we find that it did not abuse that discretion. While the evidence may have had some relevance, its probative value was questionable in comparison to its potential for proliferation of issues. Vakili did not have a good opportunity to view the assailant at the dark scene of the second mugging incident. (See Slim, 127 Ill. 2d at 308.) The conditions of that incident were not shown by the offer of proof to correspond to those of the armed robbery in question. The evidence of the alleged misidentification did not impugn Vakili’s powers of observation in a well-lit room. Additionally, Vakili testified to having seen defendant on the street several times and twice in the store. This element of recognition was not shown to have been available to Vakili at the time of his alleged subsequent misidentification. We dismiss as unfounded speculation defendant’s argument that cross-examination concerning the subsequent mugging incident might have disclosed racial motives affecting Vakili’s testimony. It is noted that Vakili’s identification of defendant’s photograph occurred more than five months before the mugging. The trial court may exclude evidence when its probative value is substantially outweighed by the factors of confusion of the issues, waste of time, undue prejudice, cumulative evidence or other factors. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §403.1, at 167-68 (5th ed. 1990); 3A J. Wigmore, Evidence §991, at 922 (Chadbourn rev. 1970); see Fed. R. Evid. 403.) The trial court may reject offered evidence if its remoteness or uncertainty gives it slight probative value. (People v. Ward (1984), 101 Ill. 2d 443, 455.) We conclude that the trial court did not abuse its discretion in bar-' ring the evidence.

For the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and UNVERZAGT, J., concur.