author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NOLAN CHAMBERS, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—0110
    Opinion filed June 22, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Edwin A. Burnette, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

A jury found defendant, Nolan Chambers, guilty of murder and attempted armed robbery. The court imposed an extended sentence of imprisonment for natural life without parole for murder, and 30 years’ concurrent imprisonment for attempted armed robbery. On appeal, defendant contends that he was denied his right to cross-examination where certain mugbooks were not made available to him; that he was denied his right to a fair trial where the court would not permit him to elicit evidence concerning a now deceased victim’s failure to identify him; that the court erred in failing to question one juror about his allegedly telling racial jokes to the courtroom staff after the verdict was given; that the court erred in denying his motion to quash arrest and suppress evidence; and that the sentence of natural life without parole is excessive.

On July 2, 1985, defendant and a second man were on a CTA bus. Defendant grabbed the purse of 80-year-old Caroline Snelling, who refused to let go. Sixty-four-year-old George Steele intervened and struggled with defendant. Defendant drew a gun and shot Steele in the chest, killing him.

Prior to trial, a hearing was held on defendant’s motion to quash arrest and suppress evidence of the lineup identifications. The parties stipulated that on July 6, 1985, there was no arrest warrant against defendant and no crime was committed in the presence of police officers.

Officer Thomas Blomstrand testified at the hearing that on July 6, 1985, he and his partner, John Dahlberg, were assigned to work on the case. Blomstrand had been told by his sergeant that their office had been informed by a detective with the State Bureau of Narcotics that a confidential informant with whom he worked would meet an officer at a certain location and give information about the Steele murder. Blomstrand knew how many times the narcotics officer had used the informant.

Blomstrand and Dahlberg met the informant, who reported as follows:

“He said that, that there was a game room on Lawndale south of Chicago Avenue and that two men ran into that game room and one of the men had a gun and that this man’s name was Nolan. The two men told the people who were in there, in the game room at the time, that they had just popped an old man on the bus. That the fellow he identified as Nolan then obtained a ride and took his gun and went out west to his lady’s house.”

The officers were aware that the game room was several blocks from the crime scene. The officers arranged to meet with the informant again in two hours, after he had obtained additional information.

Blomstrand and Dahlberg met the informant, who reported:

“He said that Nolan lived in a house on Trumbull I believe south of Chicago Avenue. He didn’t know the exact address. He said that Nolan was excited and agitated and was hot to get out of the city and had been calling all over the place trying to get money together so he could leave.”

Defendant had in fact telephoned the informant. The informant showed the officers his beeper, pressed the memory button, and defendant’s telephone number became visible. The informant also said “that Nolan was dangerous and he said that he had a .357 revolver.” The officers knew that the bullet recovered from Steele’s body was of medium caliber which could be from a .357 revolver.

The officers were also aware that eyewitnesses had described the shooter generally as being a black male, around 20 years of age, 5 feet 10 inches to 6 feet tall, and weighing 150 to 170 pounds. The informant’s description of defendant matched the eyewitnesses’ descriptions.

The officers radioed for assistance and checked the telephone number, and in 30 minutes, they had discovered it was listed to a person named Edie Chambers at 634 North Trumbull, which was the street on which the informant had reported that defendant lived, and which was IV2 blocks from the murder scene.

In checking the name Nolan Chambers, the police officers discovered that a 20-year-old man with that name had previously reported living at the address 634 North Trumbull. In addition, he had a criminal history sheet showing several prior arrests and one year of supervision for purse snatching.

Four additional officers were assigned to assist Blomstrand and Dahlberg, and all of the officers drove to 634 North Trumbull. Several officers went to the back of the house. Blomstrand and Dahlberg met Mrs. Chambers at the front door. She said that defendant was not home. Defendant then walked into the room. He matched the description provided by the informant and the eyewitnesses and stated that his name was Nolan. He made no attempt to escape and was placed under arrest.

Officer Gregory Baiocchi testified at the hearing that on July 6, 1985, he and his partner, Dennis Keane, accompanied four officers to defendant’s home. Baiocchi and Keane went into the backyard and saw defendant exiting the back door of the home. He was running down the stairs along a path on the side of the lot. The officers were directly in defendant’s path. Defendant looked in their direction and ran back into the house. When the officers entered the house, defendant was in the living room, and he had been placed under arrest.

The court denied the motion to quash. The court found exigent circumstances and probable cause to arrest.

At trial, several eyewitnesses testified. Lavador Williams saw the incident from across the aisle and one seat behind Snelling. Williams viewed a lineup on July 6, 1985, and identified defendant. Gail Lofton saw the incident from the back seat of the bus, several seats behind the victims. On July 3, she looked at several mugbooks but did not see the man who shot Steele. She pointed to one picture which “looked like” defendant. On July 3, Lofton viewed a lineup which did not contain defendant, and she made no identification. On November 6, 1986, Lofton was shown a photograph of the July 6, 1985, lineup and she identified defendant.

Brenda Gaines was on the bus with her 11-year-old daughter, Todja. As defendant walked within one foot of her, Brenda saw a gun stuck in his pants. On July 3, 1985, Brenda and Todja separately viewed mugbooks, but did not identify anyone. On July 6, 1985, Brenda and Todja separately viewed a lineup, and both of them identified defendant.

The witnesses described the incident similarly. At about noon on July 3, 1985, defendant and a second man entered the eastbound bus at St. Louis and Chicago Avenue, walked to the back, then turned to walk towards the front. Defendant stopped just before the rear door and tried to grab Snelling’s purse. When Snelling resisted, defendant ordered her to let go of the purse. Steele, who sat several seats behind Snelling, intervened and grabbed defendant from behind. Defendant broke loose after a minute or two. He immediately drew a gun, turned and shot Steele in the chest. Steele’s body fell against the rear stairs of the bus. Defendant jumped over the body and ran off the bus.

The parties stipulated that Caroline Snelling was 80 years old in July 1985, and that she died in September 1986 of natural causes.

Officer Patrick Foley testified that he and his partner conducted a lineup which did not include defendant. Snelling, Lofton, Brenda and Todja Gaines viewed the lineup and identified no one.

Blomstrand testified regarding defendant’s arrest. On July 6, 1985, he conducted a lineup which included defendant. Williams, Brenda and Todja Gaines identified defendant.

Defendant testified that on the evening of July 2, 1985, he went to his girl friend’s house. He left there at noon on July 3 and took an eastbound bus home, exiting at St. Louis and Chicago Avenue. He denied any participation in any crime on that day.

In rebuttal, Dahlberg testified that on July 6, 1985, he and Blomstrand interviewed defendant. At first, defendant stated that he had been at his girl friend’s house, but then said he had been home alone all day. He then stated that he was at his home all day and that his girl friend had been with him.

After the jury found defendant guilty of attempted armed robbery and murder, defendant decided that the court, and not the jury, should determine whether to impose the death penalty. The court found that defendant qualified for the death penalty, but found that mitigating factors were present and that it would not impose the death penalty.

Defendant first contends that the court erred in denying his motion for a mistrial after Lofton testified that she viewed mugshots which contained a photograph of someone who “looked like” the shooter, but that the photograph was not of defendant. Defendant argues that the photograph was not made available to him, and thus, he was denied the right to cross-examine Lofton resulting in “incurable detriment” to defendant.

The court initially directed the State to obtain the mugbooks, if possible. It was unknown whether defendant’s photographs were in the books viewed by Lofton. The court conducted voir dire of Brenda and Todja Gaines, and determined that they had viewed mugbooks, but had not seen anyone who “looked like” the shooter. The court later stated, upon the State’s inability to produce the unidentified mugbooks, that the motion for a mistrial was denied.

A violation of due process occurs when the State suppresses evidence material to the question of defendant’s guilt or innocence after there has been a request for its production. (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) To establish a violation of due process, however, defendant must show that the evidence was material. (People v. Olinger (1986), 112 Ill. 2d 324, 493 N.E.2d 579.) Evidence is material only if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. (People v. Olinger, 112 Ill. 2d 324, 493 N.E.2d 579; People v. Bunch (1987), 159 Ill. App. 3d 494, 512 N.E.2d 748.) It is not enough that the evidence might have helped the defense. People v. Olinger, 112 Ill. 2d 324, 493 N.E.2d 579; People v. Bunch, 159 Ill. App. 3d 494, 512 N.E.2d 748; People v. Rios (1986), 145 Ill. App. 3d 571, 495 N.E.2d 1103.

If the books contained a photograph of defendant, he might have used them to attempt to show the failure to identify by Lofton, and by Brenda and Todja Gaines. Defendant might also have tried to use the photograph Lofton said “looked like” defendant to show that it did not resemble him. Such attempts would carry little weight in light of the witnesses’ positive identifications of defendant at trial and in a lineup. Williams’ testimony also corroborated the lineup identifications, and she was shown no mugbooks.

We cannot say that, even if the evidence “might have helped” defendant in some vague, speculative way, it was material. It would not have altered the outcome of the trial.

Defendant next contends that he was denied a fair trial when the court denied his attempt to elicit testimony from Blomstrand that the now deceased Snelling failed to identify defendant in a lineup.

On cross-examination, defense counsel asked Blomstrand about a lineup which Snelling viewed:

“DEFENSE COUNSEL: How many people did you bring in for an identification?
* * *
BLOMSTRAND: Five people.
DEFENSE COUNSEL: Who were they?
BLOMSTRAND: Brenda and Todja Gaines, LaVador Williams, Caroline Snelling, and Stanley Davis.
DEFENSE COUNSEL: How many — by the way, Miss Snelling never identified — .
PROSECUTOR [Epach]: Objection.
SECOND PROSECUTOR [Crown]: Objection.
THE COURT: Sustained.
PROSECUTOR [Epach]: Ask the jury to disregard, not true.” (Emphasis added.)

At a subsequent sidebar, defense counsel argued that “Mr. Epach lied to the jury by saying [‘]not true[’] as to Caroline Snelling. Caroline Snelling did not make an identification of the defendant, at that particular time.”

We agree with the trial court that it “start[ed] out with an incorrect, improper question” by defense counsel. There is no question that Snelling’s identification or nonidentification statement to the police would be hearsay and would be properly excluded because she could not be cross-examined. See People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223; People v. McNeal (1987), 160 Ill. App. 3d 796, 513 N.E.2d 897.

Furthermore, the court twice instructed the jury to “disregard any comments by any counsel as to whether or not there were or were not, in fact, any identifications by Mrs. Snelling. *** Please don’t conjecture on that point ***.” Thus, any error in the prosecutor’s statement, “not true,” was harmless. See People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Whitfield (1986), 140 Ill. App. 3d 433, 488 N.E.2d 1087.

Defendant next contends that the court erred in failing to voir dire jury foreman Donald Harenberg and investigate the allegation that he told a racially degrading joke to the courtroom staff.

Defendant’s post-trial motion alleged that Harenberg made racial comments to the courtroom staff. This occurred following the verdict, when the jury was held over while defendant decided whether the court or the jury should decide whether to impose the death penalty. The pertinent portion of the post-trial motion reads:

“A juror was heard to made [sic] what would be considered and interpreted to be racial comments to the court room staff.
a) The defense counsel only learned of this the day after the verdict was taken.
b) Such comments must be considered in direct contradiction to answers he gave in questioning during voir dire.”

A defendant bears the burden of proof when he challenges the prejudice of a juror. He must show the juror was actually prejudiced and that there was a reasonable apprehension that defendant could not receive a fair trial. People v. Porter (1986), 111 Ill. 2d 386, 489 N.E.2d 1329; People v. Hunt (1983), 112 Ill. App. 3d 138, 445 N.E.2d 408.

Defendant has failed to meet that burden. He did not present the testimony of the probation officer who allegedly overheard the joke; he did not submit the officer’s affidavit, although defense counsel suggested such an affidavit would be filed in order to save the probation officer the embarrassment of testifying; and counsel’s “offer of proof” did not relay the details of the overheard comments, although the court asked for the details.

Defendant’s bare allegations of prejudice, based on an inappropriate joke told following the entry of the verdict, are insufficient to prove the juror’s prejudice or establish that defendant received an unfair trial.

Defendant also contends that the court erred in denying his motion to quash arrest and suppress evidence.

In ruling on a motion to quash arrest and suppress evidence, the trial court must determine the credibility of the witnesses and the weight to be given their testimony. Its finding of probable cause will not be disturbed unless it is manifestly erroneous. People v. Stoica (1987), 163 Ill. App. 3d 660, 516 N.E.2d 909; People v. Mitchell (1984), 123 Ill. App. 3d 868, 463 N.E.2d 864.

The reasonableness of police officers’ conduct in making an arrest without a warrant must be judged on the basis of their responsibility to prevent crime and to catch criminals, and to act quickly in appraising data, and that conduct is to be judged by practical considerations of everyday life. (People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984.) Probable cause for purposes of arrest is judged by whether the facts and circumstances known to the police would cause a person of reasonable caution to believe that the person arrested committed the offense in question. People v. Montgomery (1986), 112 Ill. 2d 517, 494 N.E.2d 475; People v. Hattery (1989), 183 Ill. App. 3d 785, 539 N.E.2d 368.

Defendant argues that the exigency of the situation was not relevant because the exigency was “inherent only in the informant’s story.”

Factors of particular significance in assessing the presence of exigent circumstances and the reasonableness of a warrantless arrest include whether the time period between the commission of the crime and arrest creates a need for prompt action; whether the police deliberately and unjustifiably delayed acting, during which time a warrant could have been obtained; whether the suspect was armed or exhibited signs of a violent nature; whether the officers were acting on a clear showing of probable cause; and whether defendant was clearly identified as the offender. People v. Grant (1982), 104 Ill. App. 3d 551, 432 N.E.2d 1200.

In finding probable cause to arrest, the trial court could properly consider that the officers acted with reasonable speed and did not delay acting where they arrested defendant within an hour after they obtained identification evidence. (See People v. Carmack (1982), 103 Ill. App. 3d 1027, 432 N.E.2d 282.) At 7 p.m., the informant reported to the police officers defendant’s telephone number. By 7:30 p.m., the officers had obtained the address, verified that a man named Nolan Chambers had used the address, and obtained his criminal record. The officers immediately went to defendant’s home.

The police also knew that defendant intended to leave town as soon as possible, and that three days had already passed since the murder occurred. See People v. Sprovieri (1969), 43 Ill. 2d 223, 252 N.E.2d 531.

The trial court also properly considered the fact that the officers were dealing with murder. If a serious and violent offense has been committed, the police are more likely to be justified in immediately apprehending the suspect without a warrant. People v. Stachelek, 145 Ill. App. 3d 391, 495 N.E.2d 984; People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31; People v. Columbo (1983), 118 Ill. App. 3d 882, 455 N.E.2d 733.

The trial court also properly considered the fact that the murder weapon had not been recovered, that the informant had seen defendant with the gun just after the shooting, and that he had warned the officers that defendant was armed and dangerous. An in-home warrantless arrest will be justified particularly if a suspect of a serious and violent crime is reasonably likely to be armed. People v. Cobb, 97 Ill. 2d 465, 455 N.E.2d 31; People v. Columbo, 118 Ill. App. 3d 882, 455 N.E.2d 733.

The police could rely on the fact that defendant matched the informant’s and eyewitnesses’ descriptions of the shooter. (See People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280.) The police could also consider the proximity between defendant’s home and the scene of the crime. (See People v. Stachelek, 145 Ill. App. 3d 391, 495 N.E.2d 984.) The police further knew that a man named “Nolan” had admitted to the informant shortly after the shooting, and within a few blocks of

the shooting, that he had “popped an old man” on the bus, and showed the informant the gun. See People v. Padilla (1979), 70 Ill. App. 3d 406, 387 N.E.2d 985.

Defendant argues further that there was no probable cause where the basis for the arrest was “the unverified story of a classified informant whose reliability and background [were] unestablished.”

An arresting officer may rely upon information supplied by an informant if the reliability of the informant has been established or independently corroborated. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147; People v. Jones (1988), 169 Ill. App. 3d 883, 524 N.E.2d 593.) Corroborated details of an informant’s tip go to support his veracity and reliability. (People v. Beck (1988), 167 Ill. App. 3d 412, 521 N.E.2d 269.) If there is no indication that the informant was paid by the police, it is presumed he is an ordinary citizen whose information is presumed to be reliable. People v. Hall (1987), 164 Ill. App. 3d 770, 518 N.E.2d 275.

In addition to the presumption of reliability, the informant’s statements here were corroborated by the eyewitness descriptions of defendant. (See People v. Pierson (1988), 166 Ill. App. 3d 558, 519 N.E.2d 1185.) Furthermore, the informant showed the officers the telephone number of defendant on his beeper. The number matched an address which was close to the murder scene and matched an address given by a man with the name Nolan Chambers, who previously had been placed on supervision for purse snatching. See People v. Bean (1979), 73 Ill. App. 3d 918, 392 N.E.2d 650, aff'd (1981), 84 Ill. 2d 64, 417 N.E.2d 608.

The informant’s detailed description of the shooting also corroborated his information. (See People v. Borges (1980), 88 Ill. App. 3d 912, 410 N.E.2d 1076.) The informant knew the caliber of the weapon, that the victim was an older man, and the fact that the shooting occurred on a bus.

We conclude that the arrest was justified by compelling evidence that defendant was implicated in the murder. (See People v. Columbo, 118 Ill. App. 3d 882, 455 N.E.2d 733.) The trial court’s finding that the officers had probable cause to make a warrantless arrest under exigent circumstances is not manifestly erroneous. The court properly denied defendant’s motion to quash arrest and suppress evidence.

Defendant finally contends that a sentence of natural life without parole is disproportionately severe. He argues that “it is in some ways the functional equivalent of the death penalty.” Defendant relies on the dissent in People v. Young (1987), 152 Ill. App. 3d 361, 369, 504 N.E.2d 115, 120-21. (Justice Quinlan dissenting.) Our supreme court, however, affirmed the majority opinion. People v. Young (1988), 124 Ill. 2d 147, 529 N.E.2d 497.

A sentence is within the discretion of the trial court, and that sentence will not be disturbed absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The court here decided that defendant qualified for the death penalty, but found that his age and lack of criminal background were sufficient mitigating factors to prevent its imposition of the death penalty. The court, however, focused on the senseless, brutal nature of the killing by a man who “thought that he could get a couple easy dollars from an 80-year-old woman, and he was prevented from doing so by George Steele, aged 64, who was in fact literally and figuratively a hero of our times.” The court properly considered the nature and seriousness of the offense committed.

Defendant maintains that there was “no evidence to support the proposition that rehabilitation of [defendant] is not possible.” The court is not required to find defendant has no rehabilitative potential before sentencing him to a term of natural life imprisonment. (People v. Young (1988), 124 Ill. 2d 147, 529 N.E.2d 497.) Moreover, the court here considered defendant’s rehabilitative potential, including the presentencing investigation report, testimony from defendant’s mother, defendant’s age, and his lack of criminal history. The court was permitted to reject this evidence in light of the type of crime committed by defendant. (See People v. Young, 124 Ill. 2d 147, 529 N.E.2d 497.) We find no abuse of discretion, and we will not disturb the sentence imposed on defendant by the trial court.

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

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIGUEL SALGADO, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—2981
    Opinion filed June 22, 1990.
    Michael J. Pelletier and Jeffrey Walker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Defendant, Miguel Salgado, was charged by indictment with residential burglary and theft along with two codefendants. Following a joint bench trial, defendant was convicted of residential burglary, and his codefendants were convicted of theft. Defendant received a term of four years’ imprisonment, and the court ordered that the sentence run consecutive to an eight-year prison term imposed upon defendant two days earlier. The other two defendants received sentences of 30 months’ probation, the first six months of which were to be served in the Cook County jail.

Defendant appeals his conviction and sentence, asserting that he was deprived of the right to effective assistance of counsel; the statute under which he was sentenced is unconstitutional because it is violative of due process and of the provision for the separation of powers; and the trial court erred in ordering that his sentence run consecutively to a previous sentence imposed two days earlier. We reverse the defendant’s conviction for residential burglary and remand the cause for a new trial.

Defendant, Miguel Salgado, was indicted for residential burglary and theft along with two codefendants, Buddy Raines and Mainor Garcia, and all three defendants waived their rights to a jury trial. Raines and Garcia were represented by the same attorney, and defendant was represented by separate counsel. Following a joint bench trial, defendant was convicted of residential burglary, and the codefendants were convicted of theft.

At trial, neither the prosecuting attorney nor defense counsel made opening statements. The complainant, Holly Esaki, testified that on January 20, 1987, she left her apartment at 5525 North Glen-wood in Chicago, Illinois at 10 a.m. When she returned at 2 or 3 p.m., she noticed that the laundry had been thrown all over the floor. She also saw a hole in the window in the back door of the apartment. She noticed further that a television set, a microwave oven and a video cassette recorder were missing. She then went downstairs to the basement and found that her tape recorder was gone. Later, when her parents came home, the three of them realized that a couple of coats and some jewelry were missing. All of the stolen items except the jewelry were recovered by Esaki from the police on February 20, 1987. The parties stipulated that if called as a witness, Alice Esaki, complainant’s mother, would testify to substantially the same facts.

Chicago police detective Bernard Lohan testified that on January 20, 1987, he was assigned to investigate the Esaki burglary. During the course of that investigation, he learned that an evidence technician had obtained a fingerprint from the scene of the burglary which belonged to defendant Garcia. On February 20, 1987, Lohan and his partner, Detective Davis, located Garcia at 10 a.m. and placed him under arrest. After Garcia was advised of his Miranda rights, he informed Lohan and Davis that he had broken in the Esaki residence with some other people after borrowing a van for that purpose. Garcia identified defendant and Raines as his accomplices and told the detectives that they had taken jewelry, appliances, television sets, a microwave oven and clothing from the Esaki house.

Lohan testified further that Raines and defendant were also located on February 20, 1987. Upon being advised of their Miranda rights, they both admitted their involvement in the burglary. Defendant agreed to cooperate with the police in returning the stolen property to the Esaki family. He took the detective to three locations to recover the property, which was inventoried and subsequently turned over to the Esaki family. Neither defense counsel cross-examined the complainant or Detective Lohan.

Neither . Raines nor Garcia testified at trial. Testifying through an interpreter, defendant stated on direct examination that he had participated in the burglary of the Esaki residence and stated that Garcia had gone into the back of the building through the window while defendant waited for him outside. Garcia then opened the door, and defendant went inside. They then took the property outside, put it in the van; and left.

During closing argument, defense counsel presented no defense other than to assert that defendant had a right to explain his participation in the offense.

The trial court found defendant guilty of residential burglary and found Garcia and Raines guilty of theft. In entering his judgment, the trial judge stated that prior to defendant’s testimony, he anticipated finding defendant guilty of theft, but because defendant admitted that he committed the residential burglary, the court had no choice but to convict him of that offense.

Garcia and Raines were sentenced to 30 months’ probation, of which the first six months were to be served in Cook County jail. Defendant was sentenced to a term of four years’ imprisonment, which was to run consecutive to an eight-year sentence imposed two days earlier on a conviction of aggravated criminal sexual assault.

Defendant initially contends that he was deprived of the effective assistance of counsel where his attorney failed to make an opening statement, conducted no cross-examination of the State’s witnesses at trial, elicited a confession to the charge of residential burglary from defendant during direct examination, and presented no defense other than to assert during closing argument defendant’s right to explain his participation in the offense.

It is well established that the adequacy of a defendant’s trial counsel entitles him to a new trial if his counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different. (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068; People v. Albanese (1984), 104 Ill. 2d 504, 525-26, 473 N.E.2d 1246, 1255-56.) The sixth amendment requires, at a bare minimum, that defense counsel act as a true advocate for the accused. Thus, where defense counsel entirely fails to subject the prosecution’s case to meaningful testing, the accused has been deprived of his right to effective assistance of counsel. (United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047.) The constitutional right of a criminal defendant to plead not guilty entails the obligation of his attorney to structure the trial of the case around his client’s plea. Wiley v. Sowders (6th Cir. 1981), 647 F.2d 642, 650, cert. denied (1981), 454 U.S. 1091, 70 L. Ed. 2d 630, 102 S. Ct. 656.

In the instant case, defendant’s attorney called defendant as a witness and during direct examination elicited a confession to the offense of residential burglary. In addition, defense counsel presented no defense other than to assert during closing argument that defendant had a right to explain his participation in the crime. No exculpatory evidence was introduced in defendant’s testimony, and we perceive no logical reason for counsel to have called defendant as a witness and elicited a confession on direct examination. The trial judge specifically stated that until defendant testified, the court had intended to find him guilty only on the theft charge, but because defendant admitted that he committed the residential burglary, the court had no choice but to convict him of that offense. By pleading not guilty, defendant was entitled to have the issue of his guilt or innocence of residential burglary presented to the court as an adversarial issue. Defense counsel’s conduct in this case amounted to ineffective assistance of counsel because it nullified the adversarial quality of this fundamental issue. Accordingly, we find that defendant is entitled to a new trial. Based upon our decision on this issue, we need not address the other questions raised by the parties.

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

Reversed and remanded.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    LOIS SMITH, as Personal Representative of the Estate of Joe Levy, Plaintiff-Appellant, v. ARTHUR LEVY, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—1279
    Opinion filed June 22, 1990.
    Arvey, Hodes, Costello & Burman, of Chicago (George L. Grumley, Marc C. Smith, and Steven B. Rissman, of counsel), for appellant.
    Torshen, Schoenfield & Spreyer, Ltd., of Chicago (Jerome H. Torshen, Mark K. Schoenfield, and Zoran Dr agutino vich, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The subject of this appeal is a judgment entered by the circuit court of Cook County holding that the bearer bonds in the decedent’s safe deposit box were an inter vivos gift to defendant. The issues on appeal are: (1) whether the trial court erred in finding that the decedent made a valid inter vivos gift to defendant; and (2) whether the joint tenancy of two accounts which defendant held with his parents was severed as to bearer bonds which were removed from the accounts and placed in a safe deposit box. We reverse.

Joe and Yetta Levy were the parents of Steven and Ira Levy, as well as the defendant Arthur Levy and the plaintiff Lois Smith. In 1977 Joe and Yetta Levy moved from Illinois to Florida, where they resided until their deaths. Shortly after they moved to Florida, Joe Levy rented a safe deposit box from a Florida bank. Yetta Levy and plaintiff were included as signatories at that time. Defendant became a signatory on the safe deposit box after Yetta Levy died in 1982.

In June 1982, Yetta Levy opened an account with the securities firm of Bache Halsey Stuart (Prubache). This account, which was identified as HS 26783, named Yetta Levy and defendant as joint tenants with rights of survivorship. A second account opened by Yetta Levy five months later and identified as HS 27317 listed Joe Levy, Yetta Levy and defendant as joint tenants with rights of survivorship. After opening the accounts, Yetta Levy purchased nine bearer bonds through account No. HS 26783 and one bearer bond through account No. HS 27317. At the time of Yetta Levy’s death on November 29, 1982, the nine bearer bonds from account HS 26783 had been removed from the joint tenancy account and placed in the safe deposit box leased by Joe Levy. Although the record does not indicate when the one bearer bond in account No. HS 27317 was removed from that account, it was in the safe deposit box at the time of Joe Levy’s death. Yetta Levy bequeathed her entire estate to Joe Levy.

On February 19, 1983, Joe Levy died testate, bequeathing only one dollar from his estate to defendant. Plaintiff was appointed personal representative of the decedent’s estate. Shortly after his father’s death, defendant entered the decedent’s safe deposit box and removed the contents, which included the 10 bonds which are at issue in this appeal. The parties stipulated that an “R” on the confirmation slip indicated that the bond was registered and “CP” indicated that the bond was a bearer bond. The record contains 10 confirmation slips which are marked with “CP.” Defendant converted the bonds and opened new accounts with his wife and children. Plaintiff then filed a complaint against defendant, seeking an accounting, a return of the property to the safe deposit box, imposition of a constructive trust and punitive damages. At the trial, the decedent’s nurse testified that several hours before his death, the decedent gave her the key to his safe deposit box with instructions that she was to give the key to defendant because everything in the box belonged to him. At the conclusion of the trial, the court found that the contents of the safe deposit box, including the 10 bearer bonds, were an inter vivos gift to defendant.

Plaintiff contends that the trial court erred in finding that the decedent made a valid inter vivos gift to defendant because the gift was not completed prior to the donor’s death. In order to make a legally effective inter vivos gift, there must be intent by the donor to make the gift, absolute and irrevocable delivery of the property to the donee or the donee’s agent with the intention of vesting title, and there must be evidence of acceptance by the donee. (Pocius v. Fleck (1958), 13 Ill. 2d 420, 428, 150 N.E.2d 106; Sullivan v. American Telephone & Telegraph Co. (Fla. App. 1969), 230 So. 2d 18, 20.) If the gift is not completed and executed in the lifetime of the donor, his death revokes the part which has been performed. Pocius v. Fleck, 13 Ill. 2d at 428. See also Kuebler v. Kuebler (Fla. App. 1961), 131 So. 2d 211, 215.

In the instant case, the trial court found that the decedent made an inter vivos gift to defendant when, several hours before his death, he gave his nurse the key to his safe deposit box and instructed her to give the key to defendant. At that time, he also made the statement that the contents of the box belonged to defendant. Delivery to a third person as an agent of the donee is an irrevocable gift which is unaffected by the death of the donor before the property is received by the donee, but if the third person is the agent of the donor, the gift is not complete. Furthermore, in the absence of a contrary showing, the third person is presumed to be the agent of the donor. (Pocius v. Fleck, 13 Ill. 2d at 428.) In this case, because there was not any evidence that decedent’s nurse was defendant’s agent, the presumption is unrebutted that the nurse was Joe Levy’s agent. Therefore, defendant did not receive the key or the contents of the safe deposit box prior to the decedent’s death, and the delivery of the gift was not completed.

Defendant argues that even if the decedent’s delivery of the safe deposit key to his nurse was not an effective inter vivos gift, the bearer bonds at issue belonged to him as a surviving joint tenant of the Prubache accounts through which the bonds were purchased. Defendant cites Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 202 N.E.2d 470, and Kuebler (131 So. 2d 211) for the proposition that with the creation of a joint tenancy account, a gift inter vivos is presumed. However, where property is removed from a joint tenancy account, and one of the four unities of interest, time, title and possession is destroyed, the joint tenancy is severed. In re Marriage of Dowty (1986), 146 Ill. App. 3d 675, 678, 496 N.E.2d 1252; Wiggins v. Parson (Fla. App. 1984), 446 So. 2d 169, 172.

When Yetta Levy removed the nine bearer bonds from the account she held in joint tenancy with defendant and placed them in the safe deposit box to which defendant was not yet a signatory, defendant no longer had possession of the bonds, and the joint tenancy as to this property was severed. This was particularly true where the bonds at issue were bearer bonds which were payable to the bearer or person in possession of them. Ill. Rev. Stat. 1983, ch. 26, par. 1—201(5).) See also Fla. Stat. 1983, §671.1-201(5).

Although defendant claims that the bonds never lost their joint nature because they were placed in a safe deposit box to which defendant had access as a signatory, this argument is only applicable to the one bearer bond that was in Prubache account No. HS 27317, which was held by Yetta Levy, Joe Levy and defendant as joint tenants. The record does not indicate when the bearer bond in this account was placed in the safe deposit box and whether defendant was a signatory to the safe deposit box at that time. However, even if this bearer bond were placed in the safe deposit box when defendant was a signatory, his argument fails where he did not have the key to the safe deposit box in his possession and he presented no other evidence that he exercised access or control over the contents of the box prior to the decedent’s death. Therefore, defendant did not have continuous possession of this bond as well.

Defendant relies on Winterton v. Kaufmann (Fla. App. 1987), 504 So. 2d 439, in support of his argument that the bonds retained their joint nature when they were transferred from a joint tenancy account held by defendant as one of the joint tenants to a safe deposit box to which he had access as a signatory. However, in Winterton the court held that the bonds retained their joint nature on transfer to the safe deposit box because the defendant in that case had her own key, which she often used to gain access to the box. Additionally, her frequent exercise of control over the contents of the safe deposit box was consistent with her continued joint possession and ownership of the assets. (Winterton, 504 So. 2d at 443.) Because defendant did not show that he had continuous access to the bond at issue when it was transferred from the joint tenancy account to the safe deposit box, the bond did not retain its joint nature, and the joint tenancy was also severed as to this bond.

For these reasons, we reverse the judgment of the circuit court and remand for further proceedings.

Judgment reversed and remanded.

LaPORTA, P.J., and McNAMARA, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    PALMER HOUSE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Virginia Petenes, Appellee).
    First District (Industrial Commission Division)
    No. 1—89—1092WC
    Opinion filed June 22, 1990.

      Cook & Ritter, of Chicago (William J. Cook, S. Michael Ritter, and Lawrence C. Cassano, of counsel), for appellant.
    Gaines & Gaines, of Chicago, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

An arbitrator found that the petitioner, Virginia Fetenes, sustained injuries arising out of and in the course of her employment with the respondent, Palmer House, and awarded her temporary total disability benefits (TTD) in the amount of $140 per week for 188 weeks, $7,484.60 in medical expenses, and permanent disability to the extent of 80% of a man as a whole (Ill. Rev. Stat. 1981, ch. 48, pars. 138.8(b), (a), (d)(2)). The Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. The respondent appeals.

The record reveals that on November 15, 1982, the petitioner filed an application for adjustment of claim and a request for a hearing, alleging that she was entitled to compensation from the respondent under the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.). At the hearing before the arbitrator, the petitioner testified that she had been employed as a waitress by the respondent since 1965. On September 15, 1981, while carrying a hand tray with about 10 to 15 dishes on it, the petitioner slipped on what she believed was water. She stated that her feet went out from under her and she fell backward. At the time, she was 52 years old, weighed 190 pounds, and stood 5 feet 4 inches tall.

The petitioner was subsequently taken to the respondent’s clinic, Herron Medical Center, where X rays of her neck and back were taken. Heat treatments were prescribed for her pain.

The petitioner testified that she then went to her family physician, Dr. Revis. He prescribed muscle relaxants and analgesics for the pain, and referred her to an orthopedic surgeon, Dr. George Tsatsos.

Dr. Tsatsos examined the petitioner on October 8, 1981. His records indicated that no fractures were found. X rays of the lumbar spine showed some narrowing between the L4 and L5 vertebrae. He prescribed heat treatment for her back and physical therapy. In an October 29, 1981, letter to the respondent, Dr. Tsatsos stated that the petitioner could return to light work.

On January 4, 1982, Dr. Tsatsos admitted the petitioner to Gottlieb Memorial Hospital, where she underwent a series of tests. A CAT scan revealed a bulging of the disc at L4-L5 and L5-S1, which was confirmed by a lumbar myelogram. Though she received heat treatments and extensive physical therapy, her condition improved only slightly. The petitioner was diagnosed as having degenerative disc disease at L4-L5 and L5-S1, in addition to lumbar radiculopathy She remained under Dr. Tsatsos’s care throughout 1982.

In May 1982, the petitioner was seen by another orthopedic surgeon, Dr. Thomas McNeill. Dr. McNeill found that the petitioner was suffering from degenerative osteoarthritis of the spine, including the facets and discs, and also degenerative “spondylo” at L4-L5. He noted that although the petitioner was taking analgesics for the pain, her condition was still not improving.

The petitioner was then referred to the Rehabilitation Institute of Chicago for further evaluation. The Institute’s report, prepared in consultation with Dr. Richard Blonsky and other staff members, stated that the petitioner’s prognosis for returning to work was poor even with redirection and a successful rehabilitation program. Redirection for the petitioner would be difficult because of her limited vocational experience, age, and lack of education. The report specifically noted that the petitioner should not return to waitressing because of the inherent risk of reinjury. The Institute’s records also showed that the respondent refused to be responsible for payment of any services rendered to the petitioner.

The petitioner continued seeking medical treatment. In June of 1984, she was evaluated at the Mayo Clinic in Rochester, Minnesota. The report from Mayo was prepared by Dr. Evangelos Frigas, in consultation with specialists in neurology, physical medicine, neurosurgery, and orthopedics. It stated that X rays of the petitioner’s lumbar spine showed a narrowed interspace at L4 with hypertrophic changes in the lumbar spine. X rays of the cervical spine also revealed a slight narrowing of the C4 interspace. A CAT scan revealed a possible extruded disc at L4, with some stenosis of the nerve roots bilaterally.

The report further noted: “The consensus of the doctors who saw her in consultation was that this is a pain syndrome without evidence of objective neurologic dysfunction. *** In summary, our diagnoses are: 1) diffuse body pain, headache, and low back pain plus lower extremity pain secondary to pain syndrome. *** 2) Carpal tunnel syndrome, mild bilaterally ***. 3) Dizziness of undetermined etiology. 4) Reactive depression. *** 5) Exogenous obesity. *** 6) Hypertension suspect. *** 7) Slight elevation of the gamma-globulins, polyclonal type, plus slight elevation of the gamma-glutamyl transpeptidase, both of undetermined etiology. *** 8) Stress incontinence with severe trigonitis.”

The petitioner was also evaluated by the respondent’s physician, Dr. E. Thomas Marquardt. Dr. Marquardt’s report stated: “The patient arises out of a chair with marked difficulty. She walks with a very slow, antalgic gait using a cane in her right hand.” He further noted that X rays taken of the lumbosacral spine revealed mild to moderate disc space narrowing at L4-L5 and L5-S1. Similarly, he found a very mild pseudospondylolisthesis at L4-L5 on a “degenerative basis.” Dr. Marquardt noted that there was some indication from the petitioner’s records that she might have been involved in an accident in 1976.

Based upon his evaluation, Dr. Marquardt concluded that the petitioner had been suffering from back problems prior to September 15, 1981. Further, he stated: “This patient has multiple diffuse subjective complaints referable to the neck, back, arms and legs. Many of her complaints are not substantiated by objective physical findings. There is no evidence of any hard-core neurologic deficits.” In his opinion, the petitioner could return to work but should avoid repeated bending and should not lift anything weighing more than 15 to 20 pounds. He suggested that she could be employed as a switchboard operator.

In 1985, the petitioner went to Dr. Irwin Barnett because she was still in a great deal of pain. Dr. Barnett noted that the petitioner had marked restriction of motion on all movements of the lumbar and cervical spine. His diagnosis was that she suffered: (1) residuals of a lower back injury; (2) severe flattening of the fourth and fifth lumbar disc spaces; (3) spondylolisthesis involving L4; (4) defects in the inter-articular region of L4-L5; (5) residuals of an injury to the cervical spine with marked cervical nerve root irritation; (6) narrowing of the fourth cervical disc space; and (7) residuals of a soft tissue and ligament and tendon injury of both hands and wrists.

The respondent presented the arbitrator with three letters that it had sent to the petitioner on February 4, May 16, and November 16, 1983, offering her employment opportunities within her work restrictions.

The arbitrator found that the petitioner’s injuries arose out of and in the course of her employment with the respondent. He awarded her TTD of $140 per week for 188 weeks, crediting the respondent for $5,804.89 it had previously paid. The petitioner was also awarded $7,484.60 in medical expenses, and permanent disability of 80% under section 8(d)(2) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(d)(2)). Rehabilitation was reserved under section 8(a) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a)). The Commission affirmed the arbitrator’s awards, and the circuit court confirmed the Commission’s decision.

The respondent argues on appeal that the Commission’s decision that the petitioner’s condition of ill-being was causally related to the accidental injuries she sustained on September 15, 1981, was against the manifest weight of the evidence. It contends that the petitioner’s back problems are degenerative in nature and therefore are not causally related to her accident.

For an injury to arise out of one’s employment, the injury must have an origin in some risk connected with or incidental to the employment so that there is a causal connection between the employment and the injury. (Fire King Oil Co. v. Industrial Comm’n (1976), 62 Ill. 2d 293, 342 N.E.2d 1.) However, an employer takes the employee as it finds him. (County of Cook v. Industrial Comm’n (1977), 69 Ill. 2d 10, 370 N.E.2d 520.) The mere fact that an employee may suffer from a preexisting condition does not preclude recovery under the Act. Compensation will be awarded if the employee can show that the preexisting illness was aggravated or accelerated by the employment. (Johns-Manville Products Corp. v. Industrial Comm’n (1979), 78 Ill. 2d 171, 399 N.E.2d 606.) The factual determination of the Industrial Commission regarding the nature and extent of the disability will not be set aside unless it is contrary to the manifest weight of the evidence. A.O. Smith Corp. v. Industrial Comm’n (1977), 69 Ill. 2d 240, 371 N.E.2d 607.

In the instant case, the record shows that since the date of the accident in 1981, the petitioner has received continuous treatment for her injuries. The consensus of the medical evidence reveals that the petitioner is suffering from a degenerative disc disease at L4-L5 and L5-S1. The CAT scans showed a bulging disc at L4-L5, with some stenosis of the nerve roots bilaterally. In 1985, the petitioner saw Dr. Barnett, who noted that she had severe flattening of the fourth and fifth lumbar disc spaces and spondylolisthesis at L4. Dr. Marquardt stated that the petitioner walked very slowly and had marked difficulty in moving about. While we note that the evidence indicates that the petitioner’s condition is degenerative in nature, it also suggested that the petitioner’s condition markedly worsened just after the accident. Accordingly, given the evidence that the injury aggravated the preexisting condition, we find that the Commission’s determination that the petitioner’s injuries arose out of and in the course of her employment was not against the manifest weight of the evidence.

The respondent also argues that the Commission’s decision that the petitioner was entitled to 188 weeks of temporary total disability benefits was against the manifest weight of the evidence. It contends that the petitioner was not entitled to 188 weeks of TTD, because the respondent offered her employment within her restrictions on February 4, May 16, and November 16, 1983. Further, the respondent argues that there was no medical evidence showing that the petitioner could not perform light-duty work.

Initially, we note that an employee is temporarily totally disabled until he is restored or his condition is stabilized. (Brinkmann v. Industrial Comm’n (1980), 82 Ill. 2d 462, 413 N.E.2d 390.) To prove a claim for temporary total disability, the employee must show not only that he did not work, but also that he was unable to work. (Boker v. Industrial Comm’n (1986), 141 Ill. App. 3d 51, 489 N.E.2d 913.) The determination of whether an employee is temporarily totally disabled is a question of fact to be determined by the Industrial Commission, and unless its findings are contrary to the manifest weight of the evidence, they will not be set aside on review. McKay Plating Co. v. Industrial Comm’n (1982), 91 Ill. 2d 198, 437 N.E.2d 617.

The record shows that the respondent first offered the petitioner undefined employment “of a very light physical nature.” It then offered her a job as a switchboard operator and then as an order taker in the room service department.

Dr. Marquardt indicated that the petitioner should avoid repeated bending and lifting, but that she could return to work as a switchboard operator. He also indicated, however, that the petitioner had marked difficulty in getting out of a chair and that she walked slowly with an antalgic gait and used a cane. Dr. Blonsky of the Rehabilitation Institute found that the petitioner’s prognosis for returning to work was poor even with redirection and a successful rehabilitation program. Further, he noted that redirection would be difficult due to her limited vocational experience, age, and lack of education.

The Commission noted in its decision that the respondent had offered the petitioner employment and that Dr. Marquardt had indicated that the petitioner could return to light work. It nonetheless found that the petitioner was unable to work. The resolution of conflicting medical testimony falls within the purview of the Industrial Commission. (Johns-Manville, 78 Ill. 2d at 178, 399 N.E.2d at 610.) We find that the Commission’s decision that the petitioner was entitled to TTD benefits for 188 weeks was not against the manifest weight of the evidence.

The respondent next argues that the Commission’s decision that the petitioner was entitled to $7,484.60 in medical expenses was against the manifest weight of the evidence. Specifically, it contends that the bill submitted by the petitioner from the Mayo Clinic, total-ling $3,679.30, reflected treatment which was not reasonably required to cure or relieve the effects of her fall. We agree.

Section 8(a) of the Act provides:

“(a) The employer shall provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.” Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a).

The report prepared by Dr. Evangelos Frigas of the Mayo Clinic indicated that the petitioner consulted with a gynecologist, a gynecologic surgeon, a cardiologist, an ear, nose and throat specialist, and an ophthamologist. We are unable to find that the services provided by these specialists were reasonably related to the petitioner’s back injury. Further, we find no support for the circuit court’s conclusion that the respondent waived this issue. Therefore, the Commission’s award of medical expenses must be vacated and the cause remanded for recalculation of the proper expenses. The recalculated amount should reflect only those services which were required to diagnose, relieve, or cure the effects of the petitioner’s injury.

Lastly, the respondent argues that the Commission’s decision that the petitioner was permanently partially disabled to the extent of 80% pursuant to section 8(d)(2) of the Act was against the manifest weight of the evidence. It contends that the petitioner’s subjective complaints were not supported by objective physical findings and that there was no medical evidence indicating that she was unable to return to work of a light nature. We do not agree.

Since the date of the accident the petitioner had not worked. She had repeatedly sought medical treatment for her injuries, but with only limited improvement. Further, her prognosis for returning to work was poor given her age and her lack of vocational skills. Dr. Barnett’s 1985 examination revealed that the petitioner suffered from severe flattening of the L4-L5 disc spaces and spondylolisthesis involving L4. While we note that the medical evidence regarding the degree and severity of her condition was conflicting, it was the Commission’s place to resolve these conflicts. (Johns-Manville, 78 Ill. 2d at 178, 399 N.E.2d at 610.) Under the facts of this case, we find that the Commission’s conclusion that the petitioner was permanently disabled to the extent of 80% was not against the manifest weight of the evidence.

Accordingly, we affirm the circuit court of Cook County’s confirmation of the Commission’s decision that the petitioner’s injuries arose out of and in the course of her employment with the respondent. We further affirm the TTD award of $140 per week for 188 weeks and the finding that the petitioner was permanently disabled to the extent of 80%. We vacate the Commission’s award of $7,484.60 in medical expenses and remand the cause for recalculation of the medical expenses.

Affirmed in part; vacated in part and remanded.

McNAMARA, WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SOLOMON BROWN, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—3125
    Opinion filed June 25, 1990.

      Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Christine Perille, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Defendant, Solomon Brown, and codefendants Hiram Boone and Kenneth Baker, neither of whom is a party to this appeal, were charged by indictment with aggravated criminal sexual assault, criminal sexual assault, unlawful restraint and aggravated battery against complainant. All three men were tried jointly in a jury trial. Kenneth Baker was found not guilty of all of the charges. Hiram Boone was found guilty of criminal sexual assault, and defendant was found guilty of aggravated criminal sexual assault. After hearing evidence in aggravation and mitigation, the court sentenced defendant to six years’ imprisonment.

On appeal defendant raises the following contentions: (1) whether prejudicial error resulted when the court allowed Milton Smith, a State witness, to testify regarding his opinion as to the alleged incident and the assistant State’s Attorney to testify as to prior consistent and inconsistent statements allegedly made by Smith; (2) whether prejudicial error resulted from the trial court’s cross-examination of a defense witness; (3) whether the trial court improperly denied defendant’s motion for directed verdict and improperly submitted jury instructions on the charge of aggravated criminal sexual assault predicated upon the threat of use of a gun; and (4) whether defendant was proved guilty beyond a reasonable doubt.

The State’s case in chief consisted substantially of the testimony of complainant. She testified that on August 27, 1984, she left her apartment between 6 p.m. and 7 p.m. to visit her girlfriend, Adrienne, who lived in a building approximately four to five blocks away at 45th Street and Michigan Avenue. Complainant remained at Adrienne’s until about 8 or 8:30 p.m. Defendant, also known by the name of “Butter” and whom complainant had known for approximately two months, offered to give her a ride home. She accepted the ride and rode with him to a liquor store a few blocks away. At this time they each had a drink. Defendant inquired if complainant would ride with him to his house to pick up something, and she agreed to do so. Then, defendant drove to “40 something” and Michigan where he got out of the car and spoke to a friend. Next, defendant took complainant to 73rd and Vincennes at which time she called her daughter Yolanda to give her the address of the apartment and inform her that she would be home soon.

The complainant further testified that defendant then offered her another drink, which she refused, and made a telephone call himself. Shortly thereafter, Kenneth Baker, who was wearing a “Maxie Clean” shirt and was known as “Max”, came into the apartment. They talked for a while and then defendant told complainant to take a look around his bachelor pad. While looking around the apartment, defendant pushed her into the bedroom, grabbed at her, and repeatedly told her to take off her clothes or he would tear them off her. Defendant wrestled with complainant, threw her on the bed and engaged in sexual intercourse with her. After this incident, Baker came into the bedroom. When complainant refused to perform oral sex on Baker, defendant hit her on the head and back. Then, complainant proceeded to engage in oral sex and sexual intercourse with Baker. Defendant again hit her “upside of the head” and forced her to have oral sex with him. Soon thereafter, Baker left and a person, identified as Hiram Boone, entered the room. Defendant told Boone to have complainant, at which time Boone then engaged in oral sex with her. During this time, defendant hit complainant with his fists and a piece of scrap from a radio. When defendant and Boone left complainant alone in the room, she attempted to escape out of a window but was unsuccessful because the window had bars on it.

Complainant further testified that a fourth man visited the apartment that evening. However, he did not engage in sex with her. Complainant went to the dresser, where defendant began to hit her in the head and back. She hit the dresser and cut her hand on some glass. Boone took complainant to the bathroom to put water on the cut. During this time, defendant stood in the hallway threatening to kill complainant. Complainant testified that defendant told Boone to get his gun, which Boone refused to do. Defendant then told Boone to get his knife so he could cut off complainant’s head and cut out her heart, which Boone also refused to do. Boone told complainant to lock herself in the bathroom. Soon thereafter, Boone removed complainant to his bedroom. By this time, defendant had passed out. Thereafter, Boone took defendant’s car and drove complainant to a building close to her apartment. Complainant testified that Boone told her that he wanted to date her.

Once in the apartment, complainant told her daughters that she had been raped by “Butter” and two other men. Her daughter, Yolanda, telephoned complainant’s sister Connie, who then called the police. The police took complainant to the hospital for an examination.

Edward Elam, complainant’s cousin, testified that on the morning of August 28, 1984, he saw the complainant at her sister Connie’s house, and first learned about the incident. Elam then went to South Vincennes, where he saw a man wearing a Maxie uniform drive off from that address. Elam followed the car and man, later identified as Kenneth Baker, to a building. Elam then called the police, who arrived at the building and arrested Baker.

Police officer Joyce testified that on the afternoon of August 28 she accompanied complainant to the Vincennes Avenue address where defendant answered.the door. The police found complainant’s earring and a scrap of radio inside the bedroom in the apartment. They also found a gun under the bed. Officer Joyce also testified that complainant’s face was swollen on the side, she had a few knots on her head and some welts on her back and legs. The officer stated that complainant had told her that Baker and defendant repeatedly took turns engaging in sexual acts with her for several hours.

Complainant’s daughter, Yolanda, testified that she had met defendant prior to the incident. Although she had never seen her mother alone with him, she had seen her mother, Adrienne and defendant sitting and talking on Adrienne’s porch. She stated that when her mother came home the morning of August 28, 1984, she noticed bruises on her face.

Milton Smith, a co-worker of defendant and Baker at Maxie Clean, recounted that at approximately midnight on August 27, 1984, he arrived at the apartment located at 7355 South Vincennes to pick up Baker for work. While he sat in the living room talking to Baker, defendant continually called for him to come back to the bedroom. He went to the bedroom and saw the defendant, Boone and a woman. Both defendant and the woman were naked. Smith also testified on direct examination that the woman was sitting crouched on the edge of the bed with her head down and mumbling something like “can’t believe this.” Smith further stated that the group was “doing a lot of drinking” and talking. Defendant told him to have a drink and “some of this.” When questioned further, Smith stated that he understood this to mean that defendant was referring to the woman. However, Smith told defendant that he was crazy and left the room.

On cross-examination, Smith stated that the woman did not cry out for help or attempt to leave the bedroom while he was there. He also conceded that when the defendant said “have some” he could have been referring to a drink. He further stated that he did not believe what was happening was anything serious. On redirect, Smith denied ever telling the assistant State’s Attorney that he had left the room because he thought the woman was being raped.

Detective Kulkulka testified to the details of his investigation of the incident and recounted Boone’s statement to him. During the interview, Boone told him that upon arriving at home, he saw defendant in the bedroom with a naked girl. He later saw them fighting, and when the girl cut her hand on a glass, Boone took her into the bathroom to wash the cut. The girl told him that she did not want to be there, and when the defendant passed out, Boone drove her home.

Assistant State’s Attorney Joseph McNerney testified that on June 23, 1986, the day before the commencement of the trial, he interviewed Milton Smith. Over defense counsel’s objections, he was allowed to testify as to this conversation. He stated that during this pretrial interview, Smith told him the woman said something similar to “I can’t believe this,” or “I can’t believe they are doing this to me.” When Smith declined defendant’s offer of the woman, she breathed a sigh of relief. McNerney further testified that Smith never told him that he thought this incident was a joke. On cross-examination, McNerney stated that although Smith did not tell him he ever saw anyone engaging in sex, he did tell him that he understood defendant made an offer of sex to him.

The defense called Belinda Williams and Melvin Burns, neighbors who lived in the same building as complainant’s friend Adrienne. They both related how they had observed a fight between complainant and her boyfriend, Dennis, on August 26, 1984, at which time Dennis accused complainant of engaging in sex with defendant. They both related that they saw complainant drinking at Adrienne’s apartment on the morning of August 27, 1984. Williams stated that she had seen defendant and complainant together previously. Burns stated that he saw complainant and defendant leave the building together in defendant’s car on August 27,1984.

Irvin Barnes testified that on the morning of August 27, 1984, he first met complainant as she talked to defendant outside of his father’s building. He overheard part of their conversation and learned that complainant would meet the defendant at the building at 6 p.m.

William Stennis testified that in February or March of 1984, defendant brought a woman named “Theresa” to his house. On this occasion, the group sat in the basement and drank some beer. He later went upstairs to bed, and defendant and the woman spent the night in his guest room in the basement.

Defendant testified on his own behalf. He stated that he and complainant had engaged in consensual sexual intercourse on a number of occasions prior to August 27, 1984. On the morning of August 27, 1984, defendant and Irvin Barnes went to visit defendant’s father, who lived in the same building as Adrienne. As he parked his car, he saw the complainant, at which time they arranged to meet at 6 p.m. to go to a motel to have sex.

Later that evening, defendant and complainant left the building together as arranged. They went to a liquor store where the complainant purchased some liquor and had a drink. Then, they went to his cousin’s place of employment to pick up the keys to his apartment because defendant did not have money for a motel. Once they reached the apartment, which Boone and Baker shared, complainant called home and gave someone the address to the apartment. Then, defendant and complainant sat on the couch, drank some more alcohol and kissed. Defendant stated that after Baker came home, complainant was embarrassed to be kissing in the living room, so at her request they went into the bedroom. Therein, they had consensual sexual intercourse for the next few hours.

Defendant further testified that he and complainant were drinking heavily and were both intoxicated. He passed out and slept on and off while in the bedroom. However, he remembered arguing with complainant over money and reefer and that she became angry when he refused to give her any money or reefer or take her home. Defendant denied ever seeing Boone or Baker engage in sex with the complainant. He further denied hitting complainant, threatening or coercing her, offering her to Smith for sex, or having any knowledge that a gun was under the bed.

Boone testified that on the evening in question he visited a friend immediately after work and arrived at his apartment after 11 p.m. He found Baker asleep on the couch. However, Baker awakened to respond to Boone’s questions. At this time, Boone heard loud music and talking coming from the back of the apartment. He proceeded to the bedroom and knocked on the door. When the defendant let him into the room, he could see that defendant and complainant were naked. She was under the covers and the light was turned off. Defendant offered Boone a drink, which he accepted. They conversed and drank for a while. Next, defendant invited Smith into the bedroom and offered him a drink. Soon thereafter, Baker and Smith left the apartment, and Boone went to his bedroom. At about 3:30 p.m. Boone heard loud noises and some bumping. He went to the other bedroom, where he saw the complainant banging her hand on the dresser and demanding that defendant give her some money. When she cut her hand on a drinking glass, Boone took her to the bathroom and washed her hand. At this time, defendant gave Boone the keys to his car and asked him to take complainant home. Boone stated that he had to block the complainant from entering the room again because she wanted to start a fight with defendant. Boone then drove complainant to 45th and Federal Streets.

Baker, defendant’s cousin, testified that around 6:15 p.m. defendant came to his job to borrow the keys to his apartment so he could entertain complainant. He got off from work at 10 p.m. He stopped to purchase some gas and arrived at the apartment at approximately 10:30 p.m. At this time, he saw defendant and complainant kissing on the couch. However, the two eventually went into the bedroom and took a bottle of Crown Royal with them. Baker ate something and fell asleep. Thereafter, Baker left the apartment with Smith to go to another worksite.

Following rebuttal testimony, and at the close of the evidence, counsel moved for a directed verdict, which the court denied.

Because we reverse the conviction and remand for a new trial, we need not address all of the issues raised by the defendant.

Defendant first asserts that the trial court’s conduct during the trial was so prejudicial as to deprive him of a fair trial. Specifically, he maintains that the trial court’s cross-examination of a defense witness took on the role of the prosecutor, discredited the witness’ testimony, and implied that he was involved in other crimes or acts of misconduct.

The State argues that the trial court properly acted within its discretion during the court’s own examination of the witness because the questions sought to clarify her testimony. Initially, however, the State contends that this issue is waived because of defendant’s failure to object at trial or in his post-trial motion.

It is well settled that a proper objection at trial and in a written post-trial motion are essential to preserve an issue for review. (People v. Enoch (1988), 122 Ill. 2d 176, 190, 522 N.E.2d 1124.) Failure to so object waives any error absent a showing of plain error (People v. Collins (1985), 106 Ill. 2d 237, 275, 478 N.E.2d 267), and a defendant’s conviction may be reversed only upon a showing that the alleged error affects substantial rights or was sufficiently prejudicial to deny the defendant a fair trial. (107 Ill. 2d R. 615(a).) However, the waiver rule is less rigidly applied when the trial judge’s conduct is the basis for the objection (People v. Sprinkle (1963), 27 Ill. 2d 398, 401, 189 N.E.2d 295), in light of “the fundamental importance of a fair trial and the practical difficulties involved in objecting to the conduct of the trial judge.” (People v. Heidorn (1983), 114 Ill. App. 3d 933, 936, 449 N.E.2d 933. Accord People v. Johnson (1980), 83 Ill. App. 3d 586, 588, 404 N.E.2d 531.) Thus, we will consider the merits of this issue.

Defendant objects to the trial court’s examination of one of the defense witnesses. During the trial, defendant testified that on the night in question he engaged in consensual sexual intercourse with complainant. In support of this defense he presented evidence that he and complainant had an ongoing intimate relationship. His defense counsel subpoenaed the register records of the Barbara Ann Motel, at which defendant contended most of their prior sexual encounters had occurred.

Pursuant to this subpoena, Bracey, co-owner of the motel, testified that she was unable to find the register records because the motel was leased to someone else who kept the records. However, Bracey testified that she worked at the desk at the motel, and defendant looked like someone who had registered at the motel. Following cross-examination by the prosecutor, the judge conducted the following examination of Bracey:

“THE COURT: Miss Bracey, would you describe the children he may have come to the motel with?
A. No. I don’t recall any children.
Q. Would you show us the business records from your motel that you pay taxes to the State of Illinois?
A. At that time it was leased out. So, we wouldn’t have any other people’s records.
Q. Would you show us the registrations and the forms you used to pay taxes to the City of Chicago?
A. At that time?
Q. Yes.
A. You’re speaking of 1984?
Q. Yes.
A. We’d have no records, because it was leased out.
Q. But yet, you still think you recognize people that come to the motel?
A. Well, I was working.
Q. What was your capacity working there?
A. Desk clerk.
Q. And as a desk clerk, did you fill out any books and records?
A. Yes, you fill out a registration. They fill out the registration card. You fill out a registration sheet.
Q. Where are the registration cards and registration sheets for the five months that the records were subpoenaed for?
A. At that time it was leased out. So I wouldn’t have any control over them.
Q. You could still have access to them, don’t you?
A. As far as me writing on the registration sheet at that time, once the person who leased it out takes it away, I have no control over them.
THE COURT: Okay. Any other questions?”

The propriety of judicial examination of a witness is determined by the circumstances in each case and rests largely in the discretion of the trial court. (People v. Hopkins (1963), 29 Ill. 2d 260, 265, 194 N.E.2d 213; People v. Palmer (1963), 27 Ill. 2d 311, 314, 189 N.E.2d 265.) The trial judge has discretion to question witnesses in order to elicit the truth or clarify material issues which seem obscure. (People v. Wesley (1959), 18 Ill. 2d 138, 155, 163 N.E.2d 500, cert. denied (1960), 364 U.S. 845, 5 L. Ed. 2d 69, 81 S. Ct. 87.) However, the trial court does not have unlimited discretion, and in protecting a defendant’s right to a fair and impartial trial by jury, the trial judge himself must be fair and impartial (People v. Bradley (1984), 128 Ill. App. 3d 372, 382, 470 N.E.2d 1121), conduct himself so as not to give the jury the impression of his feelings (People v. Santucci (1962), 24 Ill. 2d 93, 98-99, 180 N.E.2d 491; see also People v. Ferguson (1973), 11 Ill. App. 3d 914, 297 N.E.2d 658), and not make any comments or insinuations indicative of an opinion on the credibility of a witness. See People v. Cobbins (1987), 162 Ill. App. 3d 1010, 516 N.E.2d 382.

One of the reasons behind the rule that the trial judge must exercise a high degree of care to avoid influencing the jury in any way (Sprinkle, 27 Ill. 2d at 403) is based on the belief that the trial judge has immense influence over the jury. (People v. Marino (1953), 414 Ill. 445, 450-51, 111 N.E.2d 534.) Another very fundamental reason is that every defendant is entitled to a trial that is free from improper and prejudicial comments on the part of the trial judge. (Heidorn, 114 Ill. App. 3d at 936; see also People v. Merz (1984), 122 Ill. App. 3d 972, 461 N.E.2d 1380.) In reviewing the trial judge’s alleged errors, this court must determine whether reversible error occurred. For the comments or questioning by a trial judge to constitute reversible error, the defendant must demonstrate that they were a material factor in the conviction or that prejudice appears to have been the probable result. Heidorn, 114 Ill. App. 3d at 937; see also Cobbins, 162 Ill. App. 3d at 1028.

We have carefully reviewed the record and the trial court’s questioning of Ms. Bracey. We find that it was unnecessary for the trial court to have conducted its own cross-examination of the witness in general, and in particular, to have inquired about her tax records with the city and State. We hold that such questioning was improper in that the trial court exceeded its function in a jury trial and in fact invaded the province of the jury by making insinuations as to the witness’ veracity The decision of the veracity or credibility of a witness must be left to the jury. (Santucci, 24 Ill. 2d at 98.) In so holding, we follow the long-established rule in Illinois that a trial judge must not in the presence of a jury invade the province of the jury by making any remarks indicative of belief or disbelief in the integrity or credibility of a witness. Marino, 414 Ill. at 450. Accord People v. Godbout (1976), 42 Ill. App. 3d 1001, 1006, 356 N.E.2d 865.

We further find that the trial court’s question which asked the witness to “describe the children he [defendant] may have come to the hotel with” was highly improper and prejudicial. This remark implied that the defendant was involved in other crimes or acts involving children. The inference to be drawn left the jury to speculate as to the nature of that misconduct. Our supreme court has held that “an insinuation which leaves the jury to speculate may be more prejudicial than erroneously admitted specific proof.” (People v. Emerson (1983), 97 Ill. 2d 487, 497, 455 N.E.2d 41; see also People v. Dukes (1957), 12 Ill. 2d 334, 342, 146 N.E.2d 14.) Moreover, based on the factual matrix here presented, it would have been error for the State to bring in improper other crimes evidence. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) The rationale belying this rule is that the defendant may be convicted on the jury’s conclusion that the defendant has a propensity to commit crimes rather than on the facts of the case. Thus, we believe that it is even more prejudicial for the trial judge to bring in other crimes evidence since the jury is more likely to rely upon the judge’s opinion in reaching its verdict.

We also believe it was error for the trial court to allow State witness Milton Smith to testify as to his opinion of what occurred in the apartment on the night in question and to allow an assistant State’s Attorney to testify as to what Smith previously had revealed to him.-

The State asserts that these issues have been waived for review because defendant failed to present the specific alleged errors in his post-trial motion. In the alternative, the State asserts that the examinations were proper because it properly questioned Smith regarding his observations while he was in the bedroom and properly questioned the assistant State’s Attorney in order to lay the foundation for later impeachment of the witness. The State argues that either no prejudice resulted from this testimony and if there were any prejudice it was cured, or any resulting error was harmless because of the overwhelming evidence of defendant’s guilt. Initially, we find that this issue has not been waived on appeal. A review of the record demonstrates that although the defendant charged the trial court with a general allegation of error “in sustaining objections of the defendant asked by the assistant State’s Attorneys of their witnesses;” counsel made timely objections to the testimony at trial and specifically pointed out the alleged errors to the court during oral argument on the post-trial motion, so that the trial court had an opportunity to consider and correct any alleged error. See People v. Ammons (1983), 120 Ill. App. 3d 855, 458 N.E.2d 1031.

Defendant contends that it was reversible error for the prosecution to question Milton Smith about his opinion of whether the complainant was being held against her will or being raped. Further, defendant asserts the error was compounded when the State then elicited testimony from another witness, Assistant State’s Attorney McNemey, regarding prior consistent and inconsistent statements allegedly made by Smith to show what was Smith’s opinion of the incident, to bolster Smith’s testimony and to improperly introduce evidence to which Smith had not testified.

First, we will consider defendant’s contention that the court improperly allowed opinion testimony by Milton Smith. Defendant argues that the answers which were elicited from this witness were highly improper and prejudicial to him because they went to the ultimate question of fact to be decided by the jury, i.e., whether or not the complainant was forced to engage in the sexual acts.

It is well settled in Illinois that the testimony of a lay witness must be confined to statements of fact of which the witness has personal knowledge. (People v. Rosenbaum (1921), 299 Ill. 93, 132 N.E.2d 433.) Although our courts have allowed a witness to testify as to his observations or sensory perceptions (People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792), the general rule is that testimony of a witness’ opinion is not admissible into evidence. (People v. Linkogle (1977), 54 Ill. App. 3d 830, 833, 368 N.E.2d 1075.) In Linkogle, the trial court permitted the mother of the prosecuting witness to testify to what she thought her daughter meant by “wriggle his thing.” This court held that such opinion testimony by the mother was not admissible.

In the case at bar, the State urges that they merely questioned Smith about his observations while in the bedroom. We disagree. Smith was allowed to testify to what he thought the defendant meant by the remark “have some of this.” This line of questioning and subsequent response exceeded the realm of Smith’s opinion or conclusion based on any observations. The persons in the apartment were drinking heavily and at least two people in the bedroom were naked. The conclusion that “have some of this” referred only to sex or the woman was not an obvious conclusion. (Cf. People v. Sepka (1977), 51 Ill. App. 3d 244, 367 N.E.2d 138.) Nor did the questions call for mere sensory perceptions. See generally People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792.

Accordingly, we believe that the trial court committed reversible error by allowing Smith to testify as to what defendant meant by his remarks. (Accord Linkogle, 54 Ill. App. 3d at 833.) Moreover, we find that this testimony was improper and prejudicial to the defendant because it went to the ultimate question of fact to be decided by the jury, i.e., whether or not the complainant was engaging in forced or consensual sexual acts.

We believe that it is unnecessary to fully expand upon all of the principles of law to be utilized in making a determination whether the trial court erred when it allowed McNerney to testify as to prior consistent and inconsistent statements made to him by the witness. Suffice it to say that the record does not demonstrate that the State made any claims during its examination that Smith had recently fabricated his testimony so that any alleged prior consistent statements then would be admissible. (See, e.g., People v. Smith (1985), 139 Ill. App. 3d 21, 32, 486 N.E.2d 1347.) Further, the rule against inadmissibility of prior consistent statements also applies to a third party who seeks to testify concerning the witness’ prior consistent statement. People v. Fuelner (1982), 104 Ill. App. 3d 340, 351, 432 N.E.2d 986.

Neither was it necessary to use McNerney to testify as to prior inconsistent statements made by Smith. Smith was available and testified before the jury. The State had ample opportunity to examine him as a hostile witness and thus impeach him if it could do so. Although any party, including the party calling him, may attack the credibility of a witness and may do so by impeaching the witness with prior inconsistent statements (87 Ill. 2d R. 238(a); People v. Amato (1984), 128 Ill. App. 3d 985, 986, 471 N.E.2d 928), we believe that the State would have been unsuccessful in this venture. In order to impeach a witness with prior inconsistent statements, the State was required to show that the testimony had damaged rather than supported its position. (People v. Amato (1984), 128 Ill. App. 3d 985, 471 N.E.2d 928.) Thus, we agree with the Amato court that the only possible reason to question the witness here was to bring impermissible hearsay to the attention of the jury or bolster Smith’s testimony.

Accordingly, we find that the error of allowing Smith to give improper opinion testimony was compounded when the court allowed the assistant State’s Attorney to testify as to what the first witness understood and said. As the court stated in Linkogle:

“It is the province of the jury to make inferences from and interpret the statements of the witnesses, having had an opportunity to hear the testimony and observe the demeanor of each witness.” Linkogle, 54 Ill. App. 3d at 833.

When the prosecutor asked McNerney if he had questioned Smith about whether or not Smith thought the woman was being raped, defense counsel objected, the court sustained the objection and a sidebar was held on the objection. However, notwithstanding the trial court’s ruling, the prosecutor sought to elicit from McNerney testimony regarding Smith, which was not only inadmissible as opinion testimony, but also inadmissible as prior consistent and inconsistent statements.

We find that the errors in combination resulted in manifest prejudice to the defendant, and we reverse the conviction and remand for a new trial.

Finally, while we believe the evidence at trial was close due to the witnesses’ conflicting testimony, we find it to be sufficient to support a conviction if believed by the trier of fact. In this case, both parties presented evidence to support their respective theories; however, we believe the evidence may have been misleading as a result of the trial court errors. Nonetheless, we make no finding as to defendant’s guilt or innocence which would be binding on retrial. People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.

Reversed and remanded.

BUCKLEY, P.J., and O’CONNOR, J., concur.