author: JUSTICE REINHARD

text:
    THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Plaintiff-Appellant, v. GRAND MANDARIN RESTAURANT, INC., et al., Defendants-Appellees (Bank of Lisle et al., Defendants).
    Second District
    No. 2—88—1137
    Opinion filed September 28, 1989.

      Neil E Hartigan, Attorney General, of Springfield, and Rudnick & Wolfe, of Chicago (Malcolm E. Erickson, Special Assistant Attorney General, of Oak Brook, and Thomas F. Geselbracht, of counsel), for appellant.
    Righeimer, Martin & Cinquino, P.C., of Chicago, and S. Louis Rathje, of Rathje, Woodward, Dyer & Burt, of Wheaton (Leo N. Cinquino and Celeste P. Cinquino, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, the Illinois State Toll Highway Authority, filed a condemnation petition in the circuit court of Du Page County seeking to condemn a parcel of improved property containing a restaurant and banquet facility, naming as defendants Grand Mandarin Restaurant, Inc., Frank Lee, Bank of Lisle as trustee under trust No. 85 — 35, Bank of Lisle, Chicago Title and Trust Company as trustee under trust No. 52709, American National Bank and Trust Company of Chicago as trustee under trust No. 54883, and certain unknown owners. A default order against unknown owners, Bank of Lisle, Chicago Title and Trust Company as trustee under trust No. 52709, and American National Bank and Trust Company of Chicago as trustee under trust No. 54883 was entered, and those defendants are no longer parties to this action. A jury awarded the remaining defendants $875,000 for the taking of the subject property.

Plaintiff raises four issues on appeal: (1) whether the trial court abused its discretion in refusing to admit a video tape of the interior and exterior of defendants’ restaurant and banquet facility; (2) whether the trial court abused its discretion in excluding evidence of the 1982 purchase price of the subject property paid by defendants; (3) whether it was an abuse of discretion to exclude evidence of a written 10-year lease agreement and an oral lease agreement between defendants and the prior owner of the subject property; and (4) whether the trial court abused its discretion in refusing to admit in rebuttal certified copies of a recorded deed and real estate transfer tax declaration regarding the 1987 sale of a piece of property when defendants’ expert used the 1982 sale of the same property in valuing the subject property.

We set forth only those facts necessary to dispose of the issues raised on appeal. Plaintiff filed a complaint for condemnation, on August 19, 1987, seeking to condemn a parcel of property and the improvements thereon located at 400 Ogden Avenue in Du Page County. The subject property consists of approximately 61,300 square feet upon which is located a restaurant with a five-room apartment on the second floor and a second, detached building which houses a banquet facility. Plaintiff subsequently filed a motion under the quick-take provisions of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 7 — 103, 7 — 104, 7 — 105), and on September 9, 1987, the circuit court ordered just compensation, pursuant to the quick-take procedure, of $770,000. On September 16, 1987, the circuit court entered an order vesting title in the subject property in plaintiff and authorizing plaintiff’s immediate possession of the property except for the two structures thereon. The court further ordered defendants to pay $192.50 per day rent for each day they remained in possession of the two buildings after October 1, 1987.

On September 23, 1987, defendants petitioned for withdrawal of preliminary compensation, and the circuit court entered an order withdrawing the preliminary award. A jury trial commenced on September 23, 1988.

Prior to trial, defendants made several motions in limine. The first sought to bar plaintiff from introducing evidence of written and oral lease agreements for the two buildings entered into by defendant Frank Lee in 1977, and the second sought to prohibit introduction into evidence of the 1982 purchase price of the property. Both motions were granted. Finally, defendants moved in limine to prohibit introduction of a video tape of the restaurant and banquet hall taken on October 5, 1987, a date after which various equipment had been removed from the premises and after the valuation date of August 19, 1987. The circuit court also granted that motion after reviewing the video.

At trial, both parties offered expert opinion evidence of the value of the subject property. Plaintiff’s two experts valued the property at $370,000 and $395,000. Defendants’ two experts valued the property at $900,000 and $950,000.

Defendants’ expert, William Sullivan, relied in part on the 1982 sale of a comparable property known as the Track 29 Restaurant in valuing the subject property. On rebuttal, plaintiff sought to introduce certified copies of a deed and real estate transfer tax declaration which were filed as a result of the sale of the Track 29 property in 1987, both of which the trial court refused to admit.

Plaintiff first contends that the trial court abused its discretion in refusing to admit a 41-minute video tape which, in substantial part, is of the interior of defendants’ restaurant and banquet hall taken after the valuation date and after defendants had removed personal property and fixtures from the restaurant. Plaintiff further argues that, because defendants’ video, which was admitted, did not show the entire interior of the restaurant, it was an abuse of discretion to not admit its video, particularly where a jury view was no longer possible due to destruction of the property. Finally, plaintiff argues that it would have been proper for the jury to have viewed the property, had the buildings not been demolished prior to trial, and therefore it was also proper for the jury to have viewed the October 5, 1987, video tape.

Generally, the admission of photographic evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. (Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 18, 541 N.E.2d 643; Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 131-32, 478 N.E.2d 581.) The fact that photographic evidence portrays something under conditions not precisely the same as those at the time of the occurrence does not necessarily render it inadmissible, so long as the jury is not misled. (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 391, 385 N.E.2d 664.) Furthermore, in a condemnation case, the mere fact that a photograph was taken after the valuation date does not necessarily make it inadmissible. (Lake County Forest Preserve District v. Vernon Hills Development Corp. (1980), 85 Ill. App. 3d 241, 244-45, 406 N.E.2d 611.) The necessary inquiry is whether the photographs of the subject property accurately portray the conditions of the land prior to the valuation date. (Vernon Hills Development Corp., 85 Ill. App. 3d at 245, 406 N.E.2d at 614.) While photographs of the appearance and condition of land or other inanimate objects taken after a material change in appearance and condition are generally inadmissible, there is no requirement that the situation or condition must be precisely the same. (Vernon Hills Development Corp., 85 Ill. App. 3d at 245, 406 N.E.2d at 614.) It is sufficient if the condition of the property is substantially unchanged, or if the subject of the photograph is truthfully represented, or if the photograph is shown to be an accurate representation of the property. Vernon Hills Development Corp., 85 Ill. App. 3d at 245, 406 N.E.2d at 614.

Here, the video tape was made on October 5, 1987, after defendants had removed various personalty and fixtures from the restaurant and banquet hall. The video depicts debris, dirt, and damage to various walls and ceilings in both buildings. The condition of the property on October 5, 1987, was materially different than it was on August 19, 1987, the valuation date. While it is true that in some circumstances certain conditions of the property are not necessarily material to the particular issues in the case (see, e.g., Burke v. Toledo, Peoria & Western R.R. Co. (1986), 148 Ill. App. 3d 208, 213-14, 498 N.E.2d 682; Pace v. McClow (1983), 119 Ill. App. 3d 419, 427, 458 N.E.2d 4) and need not be accurately portrayed, in a condemnation case the condition of the property is particularly material to its valuation. In this case, the property was valued, in part, based upon its use as a restaurant and banquet facility. Consequently, the condition of the property as it existed at the time the restaurant and banquet facility were operational is material to the valuation issue. The condition of the property following its abandonment by defendants and the removal of equipment and fixtures would only serve to mislead the jury and unnecessarily prejudice their valuation of the property. (See Tedrowe v. Burlington Northern, Inc. (1987), 158 Ill. App. 3d 438, 447-48, 511 N.E.2d 798; J.L. Simmons Co. v. Firestone Tire & Rubber Co. (1984), 126 Ill. App. 3d 859, 865-66, 467 N.E.2d 327, affd (1985), 108 Ill. 2d 106, 483 N.E.2d 273.) Furthermore, we note that the jury was shown a five-minute video tape submitted by defendants which was made several days prior to the valuation date which fairly depicted the subject property.

Plaintiff further argues, relying on Department of Public Works & Buildings v. Remmerie (1963), 29 Ill. 2d 40, 192 N.E.2d 877, that a jury view would have been proper on October 5, 1987, if it had been possible, because the changed conditions in the property could have been explained to the jury. Consequently, the jury could have viewed the video tape, and the changed conditions could have been explained as well.

We are unpersuaded by plaintiffs argument. In Remmerie, the jury was asked to value a portion of a parking lot taken as well as assess the damage to the remainder of the property. We find Remmerie to be distinguishable from this case because the changes in the property taken, from a parking lot to a roadway, did not materially alter the jury’s conception of the condition of the property prior to the improvements such that an explanation would not provide the jury with a proper basis from which to value the property prior to the improvements. In the present case, however, the condition of the restaurant and banquet hall was critical to the jury’s valuation of the property. A view of the property on October 5, 1987, whether in person or by video tape, would have substantially affected the jury’s perception of the property as it existed on the valuation date due to the extensive change in the condition of the property. An explanation to the jury, under these circumstances, would have been insufficient to overcome the prejudicial impact of viewing the property as it existed on October 5,1987.

Finally, as to plaintiff’s argument that the existence of debris and absence of personalty and fixtures inside the buildings is irrelevant to the issue of the condition of the real estate, which was unchanged from the date of valuation, we are also unpersuaded. An examination of the video tape reveals substantial damage to the buildings themselves, including holes in the roof and walls and exposed electrical wiring. The property was valued, in large part, based on its use as a restaurant and banquet hall. The condition of the buildings as an operational restaurant and banquet hall, not as abandoned properties, was crucial to the jury’s valuation. Thus, under these circumstances, the trial court did not abuse its discretion in excluding plaintiff’s video tape.

Plaintiff contends next that it was an abuse of discretion to ex-elude evidence of defendants’ 1982 purchase of the property for $192,000. Specifically, plaintiff argues that the purchase price is objective evidence of the fair market value of the property and is not too remote in time from the August 19, 1987, valuation date to be considered.

When a parcel of land is condemned, the purchase price paid by the owner is a fact which may be considered in determining its value, provided the sale was recent and a voluntary transaction, with no changes in conditions or marked fluctuations in values having occurred since the sale. (Department of Conservation v. Aspegren Financial Corp. (1978), 72 Ill. 2d 302, 307, 381 N.E.2d 231, citing Forest Preserve District v. Krol (1957), 12 Ill. 2d 139, 145 N.E.2d 599.) Furthermore, a substantial increase in recent property valuation may alone be sufficient to exclude evidence of the prior sale, particularly where appraisal witnesses testify to a rapid increase in values. Department of Transportation v. Prombo (1978), 63 Ill. App. 3d 407, 413, 379 N.E.2d 953.

In the instant case, defendants’ attorney argued at the hearing on the motion in limine that one of plaintiff’s expert witnesses, in his deposition, testified that the real estate market was severely depressed in 1982 and there had been a substantial increase in property values between 1981 and 1987. Additionally, at trial, Don D. Clark, a real estate appraiser, testifying on behalf of plaintiff, admitted on cross-examination that the 1982 real estate market was depressed and the real estate market was significantly different in 1982 than in 1987.

We believe that it was not an abuse of discretion to have excluded evidence of the 1982 purchase price based on the difference in the real estate markets between the years 1982 and 1987. We emphasize that the five-year period between the prior sale and valuation date is of no particular consequence under the circumstances here, but rather, it is the unique differences in the real estate market which render the 1982 purchase price inadmissible. See Aspegren Financial Corp., 72 Ill. 2d at 307-08, 381 N.E.2d at 234.

Furthermore, the substantial improvements in the property subsequent to its purchase in 1982 further support the trial court’s exclusion of the 1982 purchase price. In this regard, defendants’ attorney pointed out at the hearing on the motion in limine that defendant Lee had testified in his deposition that there had been numerous improvements in the property since the 1982 sale. The parking lot was repaved, the property was connected to sanitary sewer, the outside was landscaped, there was new heating, air conditioning, electrical wiring, and plumbing installed, and the interior was redone in the restaurant. Additionally, in 1984 the banquet facility, which had been a grocery store, was completely rebuilt, including the exterior walls. New electrical wiring, plumbing, and ceilings were installed therein. Although the deposition of defendant Lee is not part of the record on appeal, we note that plaintiff did not object to defendants’ reliance on these facts in the hearing.

Furthermore, at trial, defendant Lee testified that the banquet hall had previously been a grocery store and it was converted to restaurant use in 1984. Additionally, after 1984, the second floor of the banquet facility was painted, wallpapered, and carpeted. According to Lee, the banquet hall was rented frequently to several large corporations. The banquet hall also contained a bar, fireplace, dance floor, and new heating and electrical wiring. Based on the evidence of substantial improvements to the property subsequent to its purchase in 1982, it was not an abuse of discretion to exclude evidence of the 1982 purchase price.

Plaintiff next contends that the trial court abused its discretion in excluding evidence of a 1977 written 10-year lease agreement and oral lease agreement between defendant Lee and the prior owner of the subject property. Any fact concerning the property which will fairly aid in arriving at its market value is admissible, and rental received in good faith from the use of the property within a reasonable length of time is clearly one of the facts naturally contributing to that end. (Forest Preserve District v. Krol (1957), 12 Ill. 2d 139, 146-47, 145 N.E.2d 599.) Here, defendants and the previous owners entered into the written and oral lease agreements in 1977. In 1982, defendants purchased the property, terminating the lease. The plaintiff instituted the eminent domain proceedings in August 1987, a period of five years later. Thus, the lease agreements were too remote in time to be considered as evidence of value. See Krol, 12 Ill. 2d at 146, 145 N.E.2d at 603.

Furthermore, as stated above, defendants substantially improved the property subsequent to purchasing it in 1982. The lease agreements for the property as it existed in 1977 would not have been relevant as to the value of the property in 1987 due to the substantial change in the condition of the property. Accordingly, the trial court did not abuse its discretion in refusing to admit evidence of the written and oral lease agreements entered into in 1977.

Plaintiff finally contends that it was error not to admit the deed and transfer tax declaration for the 1987 sale of a piece of property to rebut defendants’ expert’s reliance on the 1982 sale price of the same property as a comparable sale in valuing the subject property. This evidence was expressly not offered by plaintiff as substantive evidence of a comparable sale.

Rebuttal evidence may be admitted if it tends to explain, repel, contradict or disprove the evidence of defendant. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 721, 504 N.E.2d 781.) The decision whether-to admit rebuttal evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. (Hall, 152 Ill. App. 3d at 721, 504 N.E.2d at 784.) Additionally, the decision whether to admit evidence that is cumulative rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Davis v. International Harvester Co. (1988), 167 Ill. App. 3d 814, 825, 521 N.E.2d 1282; Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 1060-61, 502 N.E.2d 315.

Here, defendants’ expert, William Sullivan, admitted that he did not consider the 1987 sale of the Track 29 property when he utilized it as a comparable property in valuing the subject property. Plaintiff was able to introduce evidence of the 1987 sale of the Track 29 property during its cross-examination of Sullivan. Although it was error to exclude admission of the deed to show the sale, the error was harmless because evidence of the 1987 sale was already before the jury. Moreover, Sullivan had already been effectively impeached by his admission that he had not considered the 1987 sale of Track 29. Thus, failure to admit the deed, under these circumstances, did not prejudice plaintiff and does not constitute reversible error.

• 13 We next consider the trial court’s exclusion of the transfer tax declaration which would have shown the 1987 sale price of the Track 29 property. Whenever evidence of comparable sales is offered, a foundation must be established to prove comparability, the burden of which is on the party seeking to introduce the comparison sale. (People ex rel. Korzen v. Chicago, Burlington & Quincy R.R. Co. (1965), 32 Ill. 2d 554, 562, 209 N.E.2d 649.) In establishing a foundation for the admission of a comparable sale, it must at least be shown that such sales are for cash and are made on the open market. (People ex rel. Director of Finance v. YWCA (1979), 74 Ill. 2d 561, 570, 387 N.E.2d 305.) The decision to admit evidence of a comparable sale is within the discretion of the trial court. People ex rel. Director of Finance, 74 Ill. 2d at 570-71, 387 N.E.2d at 310.

In the present case, plaintiff made no showing that the 1987 sale was a voluntary, open market sale. Absent this foundational requirement, it was not an abuse of discretion for the trial court to have excluded the transfer tax declaration as evidence of a comparable sale to rebut Sullivan’s testimony.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES THOMAS, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—0382
    Opinion filed September 22, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Laurie Feldman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Following a jury trial, defendant, Charles Thomas, was convicted of two counts of armed robbery and of one count of unlawful restraint. Defendant was sentenced to concurrent terms of 10 years for each armed robbery conviction and three years for unlawful restraint. On appeal, defendant contends that (1) the State presented insufficient evidence to prove him guilty of the armed robbery of Althea Johnson Hayes; (2) the trial court erred in admitting certain hearsay evidence against him; and (3) he was deprived of his right to a fair and impartial jury.

Defendant was charged by indictment with five counts of armed robbery and four counts of unlawful restraint. The court granted the State’s motion to nol-pros three of the armed robbery counts and three of the unlawful restraint counts. On May 29, 1986, a jury trial was commenced on the remaining charges. The jury was, however, unable to reach a unanimous verdict, and on June 3, 1986, the court declared a mistrial.

A second trial was commenced on August 4, 1986. During voir dire by the court, venireman Christopher Thompson indicated that some of his friends were police officers and that he may have a tendency to believe policemen more than other witnesses. Thompson also stated that he could be fair and impartial and that he would have no problem signing a not-guilty verdict if the State failed to carry its burden of proving defendant guilty beyond a reasonable doubt. Defense counsel did not challenge Thompson for cause or exercise a peremptory challenge against him. Thompson was accepted by the State and was one of the 12 jurors who found defendant guilty. Defendant raised no objection to Thompson’s service on the jury, and defense counsel specifically directed a portion of his opening statement and his closing argument to Thompson.

The evidence adduced at trial established that on September 21, 1985, Thomas Hayes, Jr., was the manager of the Kentucky Fried Chicken restaurant at 1211 West Roosevelt Road in Chicago, Illinois. His wife, Althea Johnson Hayes, drove him to work that afternoon and arranged to pick him up after he had closed the store and completed his paperwork. The Hayeses’ five children were in the car with Mrs. Hayes when she went to pick up her husband about 2 a.m. Mrs. Hayes was in the driver’s seat, her daughter, Tuesday, was seated in the front passenger seat, and her four sons were in the back seat. Tony sat directly behind Mrs. Hayes, Aron and Tavarus were asleep in the middle, and Victor sat in the rear passenger seat.

Mr. Hayes was alone in the restaurant when he saw his family in the parking lot. He then turned off the restaurant lights, set the alarm, and walked to the front door. As he was leaving, Hayes saw a man who was later identified as Lee Daniels standing outside the door. Daniels drew a gun and pushed Hayes back into the restaurant. Hayes saw another man standing next to his family’s car in the parking lot and testified without objection that Daniels said that his partner was with Hayes’ family and would hurt them if he activated an alarm. Daniels took some rolled coins and about $90 in paper currency from the restaurant safe as well as the money Hayes had in his pockets. Daniels then forced Hayes at gunpoint back to the front door. After Daniels had run from the building, Hayes activated the alarm and called the police. On redirect examination, Mr. Hayes again testified that Daniels said that his partner was in the car with Hayes’ family and that something would happen to them if Hayes activated the alarm. Defense counsel objected, but the trial court overruled his objection and admitted the evidence of Daniels’ statement.

When Mrs. Hayes saw Daniels point a gun at her husband, she started the car to go get help, but the defendant tapped on the window and told her to turn the car off. Mrs. Hayes did as the defendant said because she feared that her children would be harmed. The defendant then opened the car door and got into the driver’s seat, directing Mrs. Hayes to move over and to put her head down. Mrs. Hayes complied and put her arms around Tuesday and her hand over Tuesday’s mouth. Defendant then drove the car around the parking lot for several minutes. Victor Hayes, age 10, observed through the space for the front-seat arm rest that defendant held a gun in his right hand, pointed it at Mrs. Hayes, and drove the car with his left hand. Tony, age 13, did not see the defendant’s right hand, but did observe that he used his left hand to steer the car.

When defendant stopped the car, he told Mrs. Hayes that she could find her keys in the adjacent vacant lot. He then threw the keys into that lot and went over to a car that was parked across the street. After a couple of minutes, Mrs. Hayes, Tony, and Tuesday got out of their car to look for the keys in the vacant lot. While they searched for the keys, the defendant ordered them to return to their car, and they complied. The defendant thereafter pulled his car in front of the restaurant. Daniels ran from the building, yelling that there was no money. Daniels got into defendant’s car, and they drove off. Victor and Tony positively identified defendant as the offender in a lineup and in court, and Tuesday identified him in a lineup.

During October 1985, defendant spoke with Stanley Edwards and admitted that he and Daniels were responsible for robberies of several Kentucky Fried Chicken restaurants around the city. Defendant also stated that during the robbery of the restaurant at 1211 West Roosevelt Road, Daniels waited for the store manager to come out and then escorted him back into the building while defendant entered a car with a woman and children in it in order to keep them quiet. About • a month later, Edwards told Detective John Summerville about defendant’s involvement in this robbery.

Following closing arguments and instructions, the jury returned verdicts finding defendant guilty of two counts of armed robbery and one count of unlawful restraint. Defendant subsequently filed a motion for a new trial, asserting 28 points of error. Defendant’s motion did not, however, allege that he had been denied the right to trial by a fair and impartial jury. After hearing argument by counsel, the trial court denied defendant’s motion.

We initially consider defendant’s contention that his conviction should be reversed because there was no evidence that he used or threatened the imminent use of force against Althea Hayes. A conviction of armed robbery requires proof that the accused committed a robbery while carrying, or armed with, a dangerous weapon. (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a).) The offense of robbery is committed when force or the threat of force is used in the taking of property from the person or presence of another. (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 1(a).) That the taking was by use or threat of force is proven where the fear of the victim was of such a nature as in reason and common experience would induce a person to part with his property for the sake of his person. (People v. Generally (1988), 170 Ill. App. 3d 668, 672, 525 N.E.2d 106, 108; People v. Hollingsworth (1983), 120 Ill. App. 3d 177, 178-79, 457 N.E.2d 1062, 1064; People v. Whitley (1974), 18 Ill. App. 3d 995, 999, 311 N.E.2d 282, 286.) The gravamen of the offense is the use of force or intimidation in taking from a person against his will. (People v. Downey (1987), 162 Ill. App. 3d 322, 331, 515 N.E.2d 362, 367.) Whether or not such force or threats of force were used is a question of fact for the jury to decide, and their decision will not be disturbed unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of guilt. Generally, 170 Ill. App. 3d at 672, 525 N.E.2d at 108; People v. Valentino (1985), 131 Ill. App. 3d 257, 262, 475 N.E.2d 627, 632.

In the instant case, the evidence established that Mrs. Hayes and her five children went to pick up Mr. Hayes at about 2 a.m. While they waited in their car in the empty parking lot, Mrs. Hayes saw Daniels force her husband back into the restaurant at gunpoint. Wfiien she started the car to get help, defendant knocked on the window and ordered her to turn the motor off. Mrs. Hayes testified that she did as defendant told her because she feared that her children would be harmed. Defendant then got into the driver’s seat and directed Mrs. Hayes to move over and to put her head down. She complied, putting her arms around Tuesday and her hand over Tuesday’s mouth. After defendant stopped the car and threw her keys into the vacant lot, Mrs. Hayes and two of her children searched the lot for the keys. When defendant ordered them back into their car, they complied.

Mrs. Hayes’ uncontradicted testimony established that after defendant approached her car, she feared for the safety of her children. The fact that Mrs. Hayes did everything the defendant told her to do is indicative that she was in fear of him and that the free exercise of her will had been suspended. (Generally, 170 Ill. App. 3d at 673, 525 N.E.2d at 108; Whitley, 18 Ill. App. 3d at 999, 311 N.E.2d at 286.) This evidence is sufficient to support the jury’s verdict that defendant took Mrs. Hayes’ car keys by the use or threat of force.

Defendant also maintains that he was erroneously convicted of the armed robbery of Althea Hayes where the evidence was insufficient to prove that he was armed with a dangerous weapon. In support of this claim, defendant points to the fact that Mrs. Hayes and four of her children did not see a weapon in his hand. This claim is without merit. Initially, it should be noted that the language of the armed robbery statute merely requires the prosecution to show that the accused carried or possessed a dangerous weapon while committing a robbery. The statute does not require the State to prove that the weapon was displayed or used. (Downey, 162 Ill. App. 3d at 333, 515 N.E.2d at 369.) Consequently, defendant’s conviction for armed robbery need not be reversed merely because Mrs. Hayes did not see the gun in defendant’s right hand.

Moreover, the failure of Mrs. Hayes and four of her children to see the defendant’s gun is easily understood. The evidence indicated that Mrs. Hayes and Tuesday were crouched with their heads down in compliance with defendant’s order. Aron and Tavarus were asleep, and Tony sat directly behind defendant with his view of defendant’s right hand obstructed by the back rest of the front seat. Victor, who was in the rear passenger seat, was able to see through the space for the front-seat arm rest that defendant was holding a gun in his right hand and pointing it at Mrs. Hayes.

Defendant asserts that Victor’s testimony was unreliable. Although he was only 10 years old, Victor’s testimony was clear, uncontradicted, and unshaken during cross-examination. Indeed, the trial court indicated at the hearing on defendant’s motion for a new trial that Victor was an observant, convincing, and excellent witness. It is within the province of the jury to determine the credibility of Victor Hayes’ testimony that defendant was holding a gun in his right hand. (People v. Chapman (1981), 94 Ill. App. 3d 602, 607, 418 N.E.2d 995, 998.) This testimony sufficiently supported the jury’s finding that defendant was armed with a gun when he entered the car and took Mrs. Hayes’ keys.

We next address defendant’s assertion that the trial court erroneously allowed hearsay evidence against him. Defendant contends that the trial court improperly admitted Mr. Hayes’ testimony on redirect examination regarding Daniels’ statement that his partner was outside with Hayes’ family and would harm them if the restaurant’s alarm was activated.

Contrary to defendant’s assertion, this evidence was admissible under the coconspirator’s exception to the hearsay rule. This exception provides that the acts and declarations of a coconspirator made in furtherance of the conspiracy are admissible against a defendant even when they are made outside the defendant’s presence. (People v. Columbo (1983), 118 Ill. App. 3d 882, 945, 455 N.E.2d 733, 779.) To introduce evidence of a co-offender’s statement under this exception, the State need not charge the crime of conspiracy, but is merely required to establish a prima facie case by independent evidence that two or more persons were engaged in a common plan to accomplish a criminal goal or to reach another end by criminal means. (Columbo, 118 Ill. App. 3d at 945, 455 N.E.2d at 779.) The existence of such a plan need not be proved by direct evidence, but may be inferred from all the surrounding facts and circumstances, including the acts and declarations of the accused (Columbo, 118 Ill. App. 3d at 945, 455 N.E.2d at 779), and statements made in furtherance of a conspiracy are those which had the effect of advising, encouraging, aiding or abetting its perpetration (Columbo, 118 Ill. App. 3d at 948, 455 N.E.2d at 781.) It has also been held that statements of one coconspirator accompanying or explaining the common design are admissible against all coconspirators. Peo pie v. Miller (1984), 128 Ill. App. 3d 574, 586, 470 N.E.2d 1222, 1230.

The record in the case at bar contains sufficient evidence to establish a prima facie case of a conspiracy between Daniels and defendant. They were both in the parking lot of the restaurant about two hours after the store had been closed for business. When Mr. Hayes attempted to leave the building, Daniels forced him back inside at gunpoint and defendant got into the car with Mrs. Hayes and her children. Defendant prevented Mrs. Hayes from intervening while Daniels robbed Mr. Hayes of money that was in the safe. After defendant moved his car from across the street into the restaurant parking lot, Daniels ran out of the store with the money he had taken from the safe, got into defendant’s car, and the two then drove off. It is reasonable to conclude from this evidence that defendant and Daniels were engaged in a common plan to rob Mr. Hayes of the money in the restaurant safe. Daniels’ statement was also made in furtherance of the conspiracy because it was clearly designed to frighten Hayes and to coerce him into cooperating with the robbers. Thus, the statement was admissible against defendant. Miller, 128 Ill. App. 3d 574, 470 N.E.2d 1222; Columbo, 118 Ill. App. 3d 882, 455 N.E.2d 733.

Although the scope of redirect examination is generally limited to the scope of cross-examination (People v. Chambers (1989), 179 Ill. App. 3d 565, 577, 534 N.E.2d 554, 560), defendant has waived argument of this issue by his failure to object to the admission of the same evidence during Hayes’ direct examination. People v. Hancock (1982), 110 Ill. App. 3d 953, 956, 443 N.E.2d 226, 229.

We also reject defendant’s claim that he was deprived of his right to trial by a fair and impartial jury. Defendant contends that the trial court erred in failing to excuse venireman Christopher Thompson, who was allegedly biased in favor of the prosecution. The record reveals that Thompson indicated during voir dire that some of his friends were police officers and that he might have a tendency to believe policemen more than other witnesses. Thompson also stated, however, that he could be fair and impartial and that he would have no problem signing a not-guilty verdict if the State failed to carry its burden of proving defendant guilty beyond a reasonable doubt. Defense counsel did not challenge Thompson for cause or exercise a peremptory challenge against him. Rather, defendant’s attorney directed a portion of his opening statement and his closing argument directly to Thompson. Defendant raised no objection to Thompson’s service on the jury, and his motion for a new trial did not allege that he had been deprived of the right to trial by a fair and impartial jury.

Absent plain error, failure to raise an issue at trial and in a post-trial motion constitutes waiver of the issue on appeal. (People v. Turner (1989), 128 Ill. 2d 540, 555, 539 N.E.2d 1196, 1202; People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1131-32, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) The plain error exception will be applied only when the evidence is closely balanced or if the error is of such a magnitude that the accused is denied a fair and impartial trial. (Turner, 128 Ill. 2d at 555, 539 N.E.2d at 1202.) Plain error will not be found where, as here, the venireman has indicated that he could be fair and impartial and that he would find defendant not guilty if the State failed to carry its burden of proof. (See People v. Collins (1985), 106 Ill. 2d 237, 271, 478 N.E.2d 267, 282, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) Consequently, defendant has waived this issue by failing to object at trial and by failing to include it in his motion for a new trial. Turner, 128 Ill. 2d 540, 539 N.E.2d 1196; Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.

Moreover, review of the evidence against defendant reveals that the only police officer to testify was Detective John Summer-ville. Summerville’s testimony merely described the lineup identifications of defendant after his arrest. This evidence was, therefore, cumulative and corroborated the testimony of Tuesday, Victor, and Tony. The jury’s finding was clearly premised upon the evidence given by Althea Hayes, the victim, and her children, the eyewitnesses to the crime, which overwhelmingly established defendant’s guilt.

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

Judgment affirmed.

EGAN, P.J., and McNAMARA, J., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN McDONALD, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—2531
    Opinion filed November 1, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Renee Goldfarb, and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Brian McDonald, was convicted by a jury of the aggravated battery and murder of his four-year-old stepdaughter, Nicole, and the aggravated battery of his two-year-old stepdaughter, Danielle. He was sentenced by the trial court to an extended term of 60 years for the murder of Nicole and a concurrent term of seven years for the aggravated battery of Danielle. He appeals his conviction for murder and the sentence imposed thereon.

The offenses in this cause relate to occurrences in February and May 1985. However, only the May occurrences are relevant to this appeal. On May 3, 1985, Nicole and Danielle were in good health while at their baby-sitter’s residence. As was his custom, defendant picked the girls up after work. As was her custom, Danielle cried when defendant picked her up. Defendant admitted at trial that he slapped Nicole in the face on the way home from the baby-sitter’s because she wet her pants and because he suspected her of bruising Danielle’s cheek. When defendant arrived home with the girls, defendant’s wife and the girls’ natural mother, Kathy McBride, noticed a bruise on Nicole’s temple. When Kathy questioned defendant about the bruise, he told her that it must have happened at the baby-sitter’s. When Kathy asked Nicole about the bruise, the child covered her mouth and looked scared. At this time, Nicole was also looking at defendant, who was standing in the doorway while Kathy was talking to Nicole.

On May 4, 1985, a Saturday, Kathy had to work. Defendant remained home with the girls. When defendant served them breakfast, Danielle spit her cereal out. Defendant admitted hitting her in the mouth for doing so. Later, defendant questioned Nicole about the bruise on Danielle’s face, which he had seen the night before, and “asked her why she was doing the things that apparently had been going on, because [he] was getting blamed for a lot of it.” When Nicole repeatedly said that she was sorry, defendant said “I know you are sorry, but why, what is happening, what is going on[?]” Defendant then took Nicole by the arm and hit her twice on the side of her stomach. Defendant stated that he may have raised her off the floor as he struck her. Nicole then fell to the floor “right in front of” a dresser and struck her head. Kathy stated that the defendant called her at work at about 11 o’clock and told her that Nicole had run into a dresser and had a bruise on her back. Kathy also talked to Nicole, who said she was fine. Defendant admitted that during the day, however, Nicole complained that the side of her stomach hurt and that she threw up some soda pop he had given her.

Moreover, after Nicole’s death, defendant allegedly admitted to the police that Nicole had not hit her head on a dresser as he claimed. He told the police that he picked Nicole up as high as his head after striking her in the stomach and threw her straight down to the floor. He also told the police that Nicole may have landed on her head.

When Kathy came home from work, she noticed that Danielle had a bruise under each eye, that her eyes were blackened, that her nose was discolored and swollen, her lip was cut and her hair was up in a pony tail. Kathy asked defendant about Danielle’s injuries, and defendant stated that, when he went into the bedroom to get the kids in the morning, he noticed that Nicole had kicked Danielle in her sleep. Defendant testified to the same effect. Kathy stated that defendant had not mentioned Danielle’s injuries when he called her at work. Kathy then checked on Nicole, who was lying very still in bed, next to a bucket of green vomit, and noticed that she had a bruise on her back. Defendant made some strawberry margaritas and took Kathy into their bedroom.

The next day, Nicole threw up aspirin which Kathy, thinking she had the flu, had given her. Kathy told defendant she wanted to take Nicole to the doctor but defendant said the child just had a bad flu. Later, Kathy decided to take Danielle to a family barbecue. When she took Danielle’s hair out of the ponytail to fix it, Kathy noticed that she had two patches of hair about an inch and a half in diameter missing from her head. The hair appeared to have been pulled out. Kathy did not notice any hair missing from Danielle’s head when her hair was down on Saturday morning. Defendant told Kathy he did not know what had happened to Danielle’s hair.

When Kathy returned from the barbecue with Danielle, she asked defendant what he was doing to the girls. He responded that he was not doing anything to them and that Kathy’s family was “feeding [her] information, putting the blame on [him].” Later, when Kathy was getting Danielle ready for bed, she heard Nicole, who had been on the couch earlier, scream. Kathy ran into the living room and found defendant standing over Nicole, who was crying. When Kathy told him to leave Nicole alone and to leave the room, defendant said he was not doing anything to Nicole. Kathy returned to Danielle in the bedroom and then heard Nicole scream again and say “don’t hurt me.” When Kathy returned to the living room, she again found defendant standing over Nicole. Defendant again denied doing anything to the child. After defendant left the room, Nicole told Kathy that her stomach hurt. During the remainder of the evening, Nicole was very quiet.

When Kathy awoke the next morning and found Nicole still very quiet, she called her mother, who called the paramedics. Before the paramedics arrived, Kathy gave Nicole an alcohol sponge bath, in hopes of reducing her fever. When Kathy gave Nicole the sponge bath, Nicole was lifeless. The paramedics arrived shortly after Kathy’s mother, who had tried to revive Nicole with mouth to mouth resuscitation. The paramedics pronounced Nicole dead. Thereafter, they transported Nicole’s body to Edgewater Hospital.

Police officers were assigned to investigate Nicole’s death almost immediately. Detective Richard Mariner viewed Nicole’s body at the hospital. He noted the following injuries to Nicole: a large bruise on the left cheek; a blackened left eye; a quarter-inch laceration near the left side of her jaw; a large bruise at the waist, in the center of the left lower back; bruises on and around the left elbow; a bruise to the right elbow, a bruise on the right shin; and dried blood in both nostrils.

Opinion

On appeal, defendant first contends the State denied him a fair trial by failing to tender to the defense a copy of an abuse and neglect petition allegedly pending “against” Kathy at the time of trial. Defendant notes his discovery request for information of any State action pending against any of its witnesses. Defendant argues that if he had known of the petition, he could have argued Kathy’s bias to the jury. Relying on the fact that the jury had been instructed on the offense of involuntary manslaughter and the jury’s recommendation during its deliberations that manslaughter charges be considered against Kathy, defendant asserts that knowledge of the petition may have convinced the jury to convict him of manslaughter rather than murder.

We cannot agree with defendant that the petition for adjudication of wardship of Danielle was encompassed within his discovery request for disclosure of any criminal or civil action involving the State and pending against any of its witnesses. An adjudication of wardship, like all proceedings under the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 701 — 1 et seq.), is not intended to be an adversary proceeding (Ill. Rev. Stat. 1985, ch. 37 par. 701 — 20). As such, it is not brought against anyone but, rather, is brought only in the best interests of the child or children involved. (In re Brooks (1978), 63 Ill. App. 3d 328, 340, 379 N.E.2d 872.) Therefore, it was not brought against Kathy in the sense in which that terra was used in plaintiff’s discovery request.

People v. Redmond (1986), 146 Ill. App. 3d 259, 496 N.E.2d 1041, did not require disclosure of the subject petition. Redmond held that the defendant was entitled to a post-conviction evidentiary hearing regarding the State’s failure to disclose, inter alia, an adjudication of delinquency against its sole identification witness. In reaching its decision, the Redmond court noted that such adjudications are, like probationary status and pending criminal charges, admissible at trial for impeachment. (Redmond, 146 Ill. App. 3d at 263, citing Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Norwood (1973), 54 Ill. 2d 253, 296 N.E.2d 852.) Here, defendant cites no authority supporting the contention that adjudications of wardship may be used to impeach the parent involved.

Defendant next contends that, if we find that he waived the argument regarding the wardship petition or that defense counsel had constructive notice of the petition, we must also find defense counsel’s failure to investigate the matter to constitute ineffective assistance of counsel. As we have found defendant’s argument relating to the petition for adjudication of wardship meritless on grounds other than those anticipated by defendant and unrelated to the effectiveness of defense counsel, we need not address this argument.

Defendant next contends the trial court denied him a fair trial when it allowed the jury to view, during its deliberations, certain photographs of Nicole taken after her death, although it had previously ruled that the jury would not be allowed to view any such photographs. Defendant asserts that the trial court’s changed ruling denied him the opportunity to discuss the crucial evidence of the photographs in his closing argument and thereby effectively denied him the right to present such argument. We cannot agree.

Initially, we note that, contrary to defendant’s contention, the trial court did not rule that the photographs of Nicole taken after her death would not go to the jury. Rather, after the trial court decided to allow certain photographs to go to the jury, the State withdrew its request therefor and requested only that a diagram of Nicole’s injuries go to the jury, which request the trial court granted.

More importantly, the decision as to which evidentiary items, including photographs, may go to the jury during its deliberations is within the sound discretion of the trial court and will not be disturbed absent a showing of prejudicial abuse. (People v. Treece (1987), 159 Ill. App. 3d 397, 511 N.E.2d 1361.) Moreover, photographic evidence having a natural tendency to establish facts in controversy is admissible in evidence and thus may properly be viewed by the finder of fact. (See People v. Williams (1983), 97 Ill. 2d 252, 290, 454 N.E.2d 220, cert, denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) We believe that the photographs which the trial court allowed the jury to view during its deliberations were probative of and relevant to both offenses against Nicole with which defendant was charged, i.e., murder and aggravated battery.

Herring v. New York (1975), 422 U.S. 853, 45 L. Ed. 2d 593, 95 S. Ct. 2550, cited by defendant, holds only that a total prohibition of closing argument is a violation of constitutional rights. No such total prohibition occurred here. Defendant cites People v. Guyon (1983), 117 Ill. App. 3d 522, 453 N.E.2d 849, for the proposition that a criminal defendant has an absolute right to present closing argument. However, Guyon merely notes that the character and scope of closing argument are within the discretion of the trial court. Guyon, 117 Ill. App. 3d at 533-34.

Moreover, it is axiomatic that a criminal defendant is entitled to a fair trial, not a perfect one (see, e.g., People v. Jackson (1986), 145 Ill. App. 3d 789, 495 N.E.2d 1359), i.e., one totally free of error (People v. Jones (1983), 119 Ill. App. 3d 615, 456 N.E.2d 926). It is implicit in this rule that the fairness of a trial is determined from the record as a whole, not isolated instances of alleged error. So viewing the record here, we believe that defendant received a fair trial notwithstanding the error alleged. Defendant had the opportunity to cross-examine the State’s witnesses with regard to the subject photos of Nicole, her injuries and cause of death. This opportunity sufficiently protected defendant from any prejudice which might have resulted from the jury's viewing of the subject photographs, despite defense counsel’s decision not to discuss them in his closing argument because the State did not request that they go to the jury.

Finally, in view of the overwhelming, albeit circumstantial, evidence of guilt, any error in allowing the jury to view the subject photographs did not so prejudice defendant as to entitle him to a new trial. We do not believe that a trial free of the error alleged would have resulted in a different verdict.

Defendant next contends that the trial court abused its discretion in sentencing him to an extended term of 60 years for the murder of Nicole. The trial court found defendant eligible for the death penalty under section 9 — 1(b)(7) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(7)). Specifically, it found that Nicole was under the age of 12 and that her death resulted from exceptionally brutal and heinous acts by defendant which were indicative of wilful and wanton cruelty. The trial court did not sentence defendant to death, however, because it also found certain mitigating factors. After noting that defendant’s exceptionally brutal and heinous behavior indicative of wanton cruelty also allowed it to sentence him to an extended term, the trial court imposed an extended 60-year term “[u]nder all the attended [sic] circumstances, the record” and defendant’s statement to the court.

We can disturb a trial court’s sentencing determination only if it abused its discretion in that regard. (People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473.) As defendant notes in his brief, all penalties must be determined according to the seriousness of the offense and with the objective of rehabilitating the defendant. (Ill. Const. 1970, art. I, §11.) However, we do not believe that, as defendant implicitly argues, rehabilitation is paramount to the seriousness of the offense as a factor in imposing sentence. Rather, the trial judge determines the weight to be accorded the appropriate factors, including the goal of rehabilitation, by balancing them in the exercise of his sentencing discretion. (See Hicks, 101 Ill. 2d at 375.) We do not believe the trial court abused its discretion to the extent that the sentence imposed may reflect a greater emphasis on the seriousness of defendant’s offense than on the goal of rehabilitation.

Nor do we find any merit in defendant’s contention at oral argument that the trial court abused its sentencing discretion because his conduct was not exceptionally brutal and heinous. In so arguing, defendant ignores that the fact that Nicole was under 12 years old alone supported the imposition of an extended term under sections 5 — 5—3.2(b)(3)(i) and 5 — 8—2(a)(1) of the Unified Code of Corrections. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005-5-3.2(b)(3)(i), 1005-8-2(a)(1).) As such, he was not prejudiced by the trial court’s determination that his conduct was exceptionally brutal and heinous.

Defendant lastly contends that the trial court’s consideration of the testimony of Nicole’s parents, Kathy McBride and Michael Spight, Nicole’s natural father, regarding the impact of her death upon them during the evidentiary phase of the sentencing hearing, requires reversal of the sentence imposed. Defendant’s argument is bottomed on Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, although he does not rely directly thereon. Booth held unconstitutional the admission of victim impact evidence at a capital sentencing hearing before a jury. We disagree with both parties’ apparent position at oral argument that Booth does not directly apply here. However, we also conclude that Booth does not require vacatur of defendant’s sentence. At oral argument, both sides seemed to agree that Booth is inapplicable because, unlike the situation therein, defendant did not receive the death penalty and this was, thus, not a capital case. Unlike the parties, we do not believe that the ultimate fact whether or not a defendant is sentenced to death determines whether a case is a capital case for purposes of judging the admissibility of victim impact evidence.

Rather, after Booth, we believe that a case and sentencing hearing must be defined as capital where a defendant has been charged with and convicted of an offense punishable by death, i.e., murder in Illinois (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1), and the State has previously expressed an intent to seek that penalty upon conviction (see People v. Holmes (1974), 19 Ill. App. 3d 814, 313 N.E.2d 297). Where both requirements are met, the fact that the court or jury either does not find one of the statutory aggravating factors necessary to make a defendant eligible for the death penalty or, as here, finds at least one mitigating factor precluding the death penalty (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) cannot change the character of the case from capital to noncapital.

If a sentencing hearing were not defined as “capital” until a court or jury either found a defendant, convicted of murder, eligible for the death penalty or until it actually imposed the death penalty, Booth would not prohibit the admission of victim impact testimony at the evidentiary phase of the hearing. However, every sentencing hearing ultimately resulting in either of those findings would then be transformed into a capital sentencing hearing. As a result, every such sentencing hearing would face reversal under Booth. To avoid that infirmity, Booth requires that the trial court or jury deciding a defendant’s sentence must fail to find him eligible for the death penalty or must fail to impose the penalty, i.e., a case must be determined to be noncapital, before victim impact testimony may be properly admitted at a sentencing hearing (Ill. Rev. Stat. 1985, ch. 38, par. 1406).

Here, defendant was charged with and convicted of murder. Before trial, the State expressed its intention to seek the death penalty. Although instructed on involuntary manslaughter as well as murder, the jury convicted defendant of murder. Thus, defendant was charged with and convicted of a capital crime, and his sentencing hearing was capital in nature. However, the victim impact testimony of Nicole’s parents was admitted at the evidentiary phase of the sentencing hearing before the trial court determined whether or not defendant was eligible for the death penalty. This procedure violated Booth.

The procedural violation of Booth notwithstanding, we cannot reverse defendant’s conviction. In People v. Simms (1988), 121 Ill. 2d 259, 520 N.E.2d 308, which extended Booth to a capital sentencing hearing before a trial court, the trial court had indicated that the impact on the victim’s family was a consideration in its sentencing decision. The Simms court seemingly interpreted Booth as establishing a per se rule that “the Eighth amendment prohibits a capital sentencing jury from considering victim impact evidence.” (Simms, 121 Ill. 2d at 274.) The court thus refused to find the admission of such evidence at a capital sentencing hearing to be harmless error. In so doing, the court noted that the State had not met its burden of proving beyond a reasonable doubt that the error had not affected the trial judge’s decision to impose a death sentence. Simms, 121 Ill. 2d at 274-76.

However, the supreme court has not adhered to former Justice Simon’s construction of Booth in Simms. In People v. Crews (1988), 122 Ill. 2d 266, 522 N.E.2d 1167, cert, denied (1989),_U.S__, 106 L. Ed. 2d 605, 109 S. Ct. 3260, the court rejected a Booth challenge to a death sentence by concluding that the admission of victim impact evidence at the sentencing hearing was harmless error. The court based its conclusion on the finding that, as the trial judge did not rely on the evidence in imposing sentence, it played no part in his sentencing decision. (Crews, 122 Ill. 2d at 288.) In People v. Phillips (1989), 127 Ill. 2d 499, 538 N.E.2d 500, the court again rejected a Booth challenge to a death sentence imposed by the trial court. Absent an express indication in the record that the trial court considered the improperly admitted victim impact evidence, the court found nothing in the record to rebut the presumption that the trial court considered only competent and reliable evidence in imposing sentence. Moreover, the court declined to presume that the trial court did consider the improper evidence. Finally, the court found that, given the applicable presumption, any error in admitting the victim impact evidence was harmless. Phillips, 127 Ill. 2d at 537.

In this case, the trial court noted its consideration of, inter alia, the victim impact statements of Nicole’s parents after it had found defendant eligible for the death penalty. The trial court then found mitigating factors precluding a death sentence. The trial court then noted that its finding of exceptionally brutal and heinous conduct indicative of wanton cruelty, which, in part, made defendant eligible for the death penalty, also allowed it to sentence him to an extended term. Thereafter, the trial court sentenced defendant “[u]nder all the attended [sic] circumstances, the record and [defendant’s] statement” to a 60-year extended term.

Beyond the fact that it did not impose the death penalty, the trial court in this case did not expressly rely on the victim impact statements of Nicole’s parents in imposing sentence. As such, this case is distinguishable from Simms and is controlled by Crews and Phillips. That is, absent an express indication in the record to the contrary, we must presume that the court considered only the competent sentencing evidence. We cannot, as defendant urges us to do in his supplemental brief, presume the contrary. In the fact of the applicable presumption, we must find any error in admitting the victim impact testimony harmless beyond a reasonable doubt.

For all of the foregoing reasons, the murder conviction of defendant Brian McDonald and the sentence imposed are affirmed in their entirety.

Affirmed.

RIZZI and WHITE, JJ., concur.

      This discussion assumes that a defendant is not exempt from the death penalty due to such factors as minority or insanity.


author: PRESIDING JUSTICE BILANDIC

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. DONALD LANG, Respondent-Appellant.
    First District (2nd Division)
    Nos. 1—86—0702, 1—86—2532, 1—87—1555 cons.
    Opinion filed September 26, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Donald Pauli, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

This consolidated appeal involves the tenth (No. 86 — 0702), eleventh (No. 86 — 2532), and twelfth (No. 87 — 1555) consecutive civil commitment hearings on respondent, Donald Lang, pursuant to the Mental Health and Developmental Disabilities Code (hereinafter the Code) (Ill. Rev. Stat. 1985, ch. 9U/2, par. 1 — 100, et seq.). The commitment orders from the three hearings involved in this appeal have expired and are no longer in effect.

While this appeal was pending, four additional civil commitment hearings, the thirteenth, fourteenth, fifteenth and sixteenth consecutive hearings, were held in accordance with the periodic review provision of the Code. (Ill. Rev. Stat. 1985, ch. 91V2, par. 3 — 813.) In each instance, the circuit court entered an order determining that the respondent was subject to involuntary admission under section 1 — 119 of the Code. These orders are not involved in this appeal.

The commitment orders in hearings three through nine were affirmed by the Illinois Supreme Court. People v. Lang (1986), 113 Ill. 2d 407, 498 N.E.2d 1105.

In order to place this appeal in proper perspective, we will summarize the history of the prior litigation which causes this matter to regularly appear on the court calendar.

In 1965, respondent was indicted for the murder of a woman in Chicago, Illinois. Defendant who was and is an illiterate deaf mute unable to cooperate with counsel, was found incompetent to stand trial. A trial was never held for this murder because of respondent’s condition and also because the State’s main witness died.

In 1971, respondent was arrested and charged with the murder of a second woman under circumstances similar to the first murder. He was tried and convicted on evidence which was largely uncontested. This court reversed the conviction based on the fact that respondent was unable to communicate with counsel. (People v. Lang (1975), 26 Ill. App. 3d 648, 325 N.E.2d 305, cert, denied (1976), 423 U.S. 1079, 47 L. Ed. 2d 90, 96 S. Ct. 866.) In March 1976, respondent was found unfit to stand trial for this second murder.

In December 1976, the trial court found that respondent was not a person in need of mental treatment and set bail for him. However, respondent was never released but spent the next several years either in the Cook County jail or in the Illinois State Psychiatric Institute. In 1979, our supreme court reversed the trial court’s finding and ruled that there was sufficient evidence to support an involuntary admission to the Department of Mental Health and Developmental Disabilities.

In March 1981, the trial court again found respondent unfit to stand trial and also found that he was unlikely to become fit within a year. As required by statute, the trial court dismissed the murder charge with leave to reinstate. The circuit court then obtained jurisdiction to conduct the first civil commitment hearing at which respondent was found to be subject to involuntary commitment.

Meanwhile, in 1986, the Illinois Supreme Court ruled that, even though the murder charges had been dismissed and never reinstated, respondent was entitled to another fitness hearing and also to a discharge hearing if he was again found to be unfit. (People v. Lang (1986), 113 Ill. 2d 407, 498 N.E.2d 1105.) A discharge hearing is like a criminal trial in that an unfit defendant may be acquitted outright or acquitted on grounds of insanity of a criminal charge, but is unlike a criminal trial in that a conviction may not be entered. (Ill. Rev. Stat. 1985, ch. 38, par. 104 — 25.) At a discharge hearing, the State has the burden to prove the defendant guilty of the offense beyond a reasonable doubt. Ill. Rev. Stat. 1985, ch. 38, par. 104 — 25(b).

On March 31, 1987, the trial court found respondent unfit to stand trial. On May 7, 1987, the court found that the State had proved respondent guilty beyond a reasonable doubt of the second murder and thus ruled against respondent at the discharge hearing. On June 4, 1987, the court ruled that under section 104 — 28(a) of the Code of Criminal Procedure of 1963, respondent was no longer subject to criminal court jurisdiction, and further ruled that respondent could be committed to the Department of Mental Health only in a civil court. (Ill. Rev. Stat. 1985, ch. 38, par. 104 — 28(a).) The order dismissing the murder charges with leave to reinstate remains in effect.

Since that time, respondent has had 16 civil commitment hearings. At each hearing, the trial court has found that respondent is a person subject to involuntary admission.

The duration of an order of involuntary admission cannot exceed 180 days. (Ill. Rev. Stat. 1985, ch. 91V2, par. 3 — 813.) The ninth consecutive commitment order is alleged to have expired prior to the filing of the tenth consecutive petition for involuntary commitment. Therefore, respondent contends that the tenth consecutive hearing on civil commitment (No. 86 — 702) was improper for lack of jurisdiction. Citing In re Plank (1988), 169 Ill. App. 3d 411, 523 N.E.2d 614, respondent argues that failure to comply with this statutory provision renders the judgment ineffective and requires his release.

Respondent further contends that: “It follows logically, as well, that the eleventh and twelfth consecutive hearings are nullities.”

It is undisputed that an initial order for hospitalization shall not exceed .60 days and that “[additional 180 day periods of treatment may be sought *** so long as the patient continues to be subject to involuntary admission.” (Ill. Rev. Stat. 1985, ch. 91V2, par. 3 — 813(b).) Our supreme court has affirmed all orders of involuntary admission in this case from the initial petition through the ninth consecutive involuntary admission order.

I

The question presented is whether the filing of the tenth consecutive petition one day late (on the 181st day after the ninth order) renders the tenth, eleventh and twelfth orders void and requires respondent’s release.

Respondent concedes that the untimely filing of the tenth petition does not permanently deprive the trial court of jurisdiction. In his reply brief, respondent “agrees that a new petition and certificates could have been filed at any time later *** which with sufficient evidence, might have led to the commitment of Mr. Lang for a maximum of 60 days pursuant to section 3 — 813(a).”

“The goals of civil commitment laws (involuntary admission) are to provide care and treatment to mentally ill persons who are unable to care for themselves, and to protect society from the dangerous mentally ill.” (People v. Lang (1986), 113 Ill. 2d 407, 440, 498 N.E.2d 1105.) “Because of the ‘uniqueness’ of this case and the ‘nature and complexity’ of the legal issues involved, this court over the past 20 years has been forced on occasion to follow its own wisdom and good conscience in fashioning solutions which will adequately protect this respondent’s rights and further society’s substantial interests in justice and safety.” 113 Ill. 2d at 447-48.

This prophetic statement of our supreme court persuades us to look to the substance of the issue presented. Section 3 — 813(b) of the Code provides that “[t]he provisions of this chapter which apply whenever an initial order is sought shall apply whenever an additional period of treatment is sought.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 91V2, par. 3 — 813(b).

We therefore conclude that, under the circumstances of this case, it is insignificant whether what is labeled the tenth consecutive petition is treated as an initial petition or as an additional petition. The same substantive evidence must be presented to sustain an involuntary hospitalization, whether it be for 60 days or 180 days. We hold that the trial court had jurisdiction to consider the tenth, eleventh and twelfth petitions and carry out the goals of involuntary admission, namely, to provide treatment for persons in need of treatment and to protect society.

Before considering whether the evidence presented at the tenth, eleventh and twelfth hearings was sufficient to support the orders of involuntary admission, we note that there have been four additional hearings (thirteenth, fourteenth, fifteenth and sixteenth). As noted by our supreme court in People v. Lang (1986), 113 Ill. 2d 407, 471-72, 498 N.E.2d 1105:

“Finally, we suggest that the consolidation of appeals from separate commitment orders involving the same respondent should be avoided whenever possible. Because a redetermination of a patient’s involuntary-admission status must be made periodically [citation], appeals from such orders should be handled expeditiously in order to insure that the patient is not deprived of meaningful appellate review. We sympathize with the appellate court’s dilemma in this case and realize that the decision to consolidate these appeals was made ‘in the interest of expediting a final disposition of this protracted matter.’ [Citation.] The record shows that much of the delay in prosecuting these appeals was attributed to respondent’s attorneys, who asked for several extensions of time in which to file briefs. The record also shows that appellate cause No. 82 — 429 was dismissed by the appellate court because respondent’s attorneys failed to file the docketing statement and record in compliance with a rule to show cause issued on October 28, 1982, and that cause No. 84 — 2837 was dismissed on January 16, 1986, for want of prosecution. Both cases were reinstated by the appellate court on respondent’s motions. In addition, we believe that respondent was not prejudiced by any delay occasioned by the consolidation of these appeals, since we affirmed the orders for involuntary admission. In the future, however, separate orders for involuntary admission should not be consolidated. Instead, whenever possible, appeals from each order should be reviewed on a separate and expeditious basis.”

It is obvious that the review of all orders since our supreme court spoke in Lang has not and cannot be “reviewed on a separate and expeditious basis.”

Respondent next contends that he was not proved by clear and convincing evidence to be a danger to himself or others or that he was unable to care for himself. Ill. Rev. Stat. 1985, ch. 91x/2, par. 1 — 119; In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273.

In the 1986 opinion in this case, the Illinois Supreme Court stated: “A ‘mentally ill’ person for purposes of section 1 — 119 is an individual with an organic, mental or emotional disorder which substantially impairs the person’s thought, perception or reality, emotional process, judgment, behavior, or ability to cope with the ordinary demands of life.” Lang, 113 Ill. 2d at 453.

At all the commitment hearings on appeal, experts testified that respondent’s mental condition left him unable to care for himself. Expert testimony also revealed that respondent was a danger to himself and to others. No expert ever testified that respondent was capable of being released. There was testimony that respondent has repeatedly had aggressive encounters with hospital personnel; that he needs medication to prevent blindness and is unable to medicate himself; and that respondent fits into the diagnostic categories in the Diagnostic and Statistical Manual of Mental Disorders (Wash. D.C., American Psychiatric Association (3d ed. 1980)).

Dr. Donaghue, who had the closest relationship with the respondent, testified as an expert witness for respondent. It was his opinion that respondent should remain at the Chicago Read Mental Health Center because he was unable to care for himself.

The decision of the trial court to commit a person to a mental hospital will be affirmed on appeal unless it is manifestly erroneous. (In re Rogers (1985), 133 Ill. App. 3d 524, 478 N.E.2d 1198; In re Johnston (1983), 118 Ill. App. 3d 214, 454 N.E.2d 840.) In recommitment proceedings, unanimous and uncontradicted expert testimony that a patient would be dangerous if released justifies continued involuntary hospitalization. In re Williams (1986), 140 Ill. App. 3d 708, 489 N.E.2d 347.

Further support for affirming the trial court’s judgment is found in People v. Lang (1986), 113 Ill. 2d 407, 498 N.E.2d 1105. Although not res judicata because each successive commitment hearing is a de novo proceeding, the Illinois Supreme Court found that respondent was mentally ill and dangerous to himself and others. In Lang, the court considered much of the same evidence and many of the same witnesses as are involved in this appeal. Thus, Lang provides support for upholding the commitment orders in the instant appeals.

After reviewing the record, we conclude that the orders of the trial court are supported by the evidence and that the respondent was properly admitted for treatment under the statute.

II

Respondent further argues that this court should order him placed in some less restrictive facility. Section 3 — 811 states:

“If any person is found subject to involuntary admission, the court shall consider alternative mental health facilities which are appropriate for and available to the respondent ***. *** The court shall order the least restrictive alternative for treatment which is appropriate.” Ill. Rev. Stat. 1985, ch. 91V2, par. 3 — 811.

There is no evidence in the record to support respondent’s request.

The experts all testified that respondent should remain at Chicago Read. Donaghue also testified that he should remain at Read, although he did state that respondent may begin one day a week at a halfway house. Others also testified that a halfway house would be inappropriate at this time for respondent because of his incapability and/or refusal to medicate himself. Further, there was evidence that respondent was under 24-hour security, which is unavailable at a halfway house. Finally, there is no evidence that any halfway house was available to him or accepted him.

The trial court found respondent in need of hospitalization at Chicago Read. Thus, it implicitly considered less restrictive alternatives and rejected them. In light of the evidence, the court did not err in this judgment.

Ill

Respondent also contends that he was denied due process because the court ordered him to provide the State and counsel for the guardian with a copy of a report prepared by Dr. Donaghue, respondent’s expert witness at the tenth hearing. Our review of the record supports the ruling of the trial court.

Also, respondent’s argument that he was restricted in the scope of cross-examination, so as to amount to a denial of due process, is misplaced. The court found that the examinations were abusive, irrelevant and outside the scope of the direct. Because a court is given wide latitude in controlling the trial, its rulings regarding cross-examinations should be disturbed by a reviewing court only in the case of clear abuse of discretion. (See People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154.) Accordingly, we find that respondent was not denied due process by virtue of the trial court properly restricting his cross-examinations of two State witnesses.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.