author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Rosenborgh et al., Defendants-Appellants. The People of the State of Illinois, Plaintiff-Appellee, v. John J. Smith, Defendant-Appellant.
    (Nos. 55658, 59586 cons.;
    First District (5th Division)
    July 12, 1974.

      James J. Doherty, Public Defender, of Chicago (John T. Moran, Jr., Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Patrick T. Driscoll, Jr., Frederick I. Chaimson, and Marianne Jackson, Assistant State’s Attorneys, and Terrence McQuigg, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

I.

A jury found Michael Rosenborgh guilty of armed robbery, aggravated kidnapping, and attempt (rape) in violation of sections 18 — 2, 10 — 2(a) (3) and 8 — 4 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, pars. 18 — 2, 10 — 2(a)(3) and 8 — 4); John Smith guilty of armed robbery, aggravated kidnapping, and rape in violation of sections 18 — 2, 10 — 2(a) (3), and 11 — 1(a) of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, pars. 18 — 2, 10 — 2(a)(3) and 11 — 1(a)); and Jerome Smith guilty of armed robbery and aggravated kidnapping in violation of sections 18 — 2 and 10 — 2(a) (3) of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, pars. 18 — 2 and 10 — 2(a)(3).) Two co-defendants, Terry Davis and Matthew Jordan, were acquitted. Jerome Smith and Rosenborgh were sentenced to concurrent terms of two to eight years and John Smith to concurrent terms of twenty to forty years.

From these convictions all three appeal contending that: (1) they were not proved guilty beyond a reasonable doubt, (2) the State’s use of various identification procedures violated due process of law, (3) the trial court erred in not allowing them to call either the complainants or other arresting officers at the hearing on the motions to suppress, and (4) they did not receive a fair trial.

At a hearing on pretrial motions to suppress evidence and identifications, the following pertinent evidence was adduced.

Police Officer Robert Frodin

On the evening of August 11,1969, he briefly spoke to the complainants at St. Francis Hospital and was given a description and license number of a car. John Smith was arrested by Midlothian Police as a result of this information. Later at about 1:30 A.M. at the Blue Island Police Station, Smith stated that he had loaned his car to the other defendants earlier in the evening. While John was sitting in a chair being questioned, Diane Wilmot and Mona Sullivan both entered the station and saw him. Later Mona saw John again and stated that he had attacked her. At about 2:00 A.M. John accompanied several police officers when they arrested the other defendants. On their arrival at the station Frodin conducted a line-up of six people, including all five defendants, which was viewed by the four complainants. He instructed the complainants to mark on their line-up tally sheets only the numbers of those they could positively identify. Mona Sullivan and Arthur Steelman identified John Smith, Jerome Smith, Davis and Rosenborgh. Mona placed a question mark after Rosenborgh’s number. Diane Wilmot identified Jerome Smith and Jordan. Donald Carlisle identified Jerome Smith and Rosenborgh. Frodin also testified that the defendants participated in another line-up (relating to other crimes) but the complainants were not present.

Defendant John Smith

He was arrested by Midlothian Police as he got out of a car at an all-night gas station. He knew nothing about tire car and had received it only a few minutes before. He was taken to the Blue Island Police Station where he alone was shown to some of his accusers, but they were unable to identify him. He did not see Mona Sullivan at the police station or at any time on the night of the occurrence. He was with the police when they went to arrest the other defendants, but he denied telling the police anything. He and the other defendants participated in seven lineups, all of which were observed by the complainants. During the course of the evening, he was threatened and beaten. He testified he has a weak memory and only a kindergarten education.

During his testimony, a dispute arose when Mona Sullivan and Diane Wilmot entered the courtroom after a motion to exclude witnesses had been granted. The court was certain that they had exited immediately upon realizing their error. At the conclusion of his testimony, John Smith’s counsel made requests to call the complainants and the other arresting officers. The court, after observing that John’s entire testimony was not credible, denied these requests and a motion to suppress. Annabelle Rosenborgh

She is Michael Rosenborgh’s mother. Sometime after midnight on the morning of August 12, 1969, three police cars arrived at her home. Two police officers, one white and one black, came to the door and arrested her son. She accompanied them. After arresting the three other defendants, they all went to the Blue Island Police Station. She observed only one line-up. She heard one of the officers say to the complainants: “I thought you said it was four boys and we have six boys here.”

Defendant Michael Rosenborgh

Three police officers, none of whom were black, arrested him. John Smith was with the officers. He participated in four or five line-ups and his mother was present for at least three of them. Different people viewed the line-ups.

Defendant Matthew Jordan

He was arrested at his home in the early morning hours of August 12, 1969, by six police officers, including Officer Frodin. John Smith was with the officer. He participated in four or five line-ups. One of the police officers told the witnesses that they had to identify someone. He saw Mrs. Rosenborgh during the first line-up.

Defendant Terry Davis

He was arrested at his home by five police officers. John Smith was with them. He participated in four or five line-ups and different people were in the last few line-ups. He did not see Mrs. Rosenborgh at the station that night.

Defendant Jerome Smith

He was arrested at home. Everyone in his family, except his brother John, was there. At the station, he participated in six line-ups. Different people observed each line-up. He saw Mrs. Rosenborgh at the first line-up.

The trial court then denied Rosenborgh’s, Jerome Smith’s, Davis’s and Jordan’s request to call the complainants as witnesses, their motions to suppress, and their motions to be severed from the trial of John Smith and ordered the trial to proceed.

During voir dire examination of the jury, a female juror was asked whether she had ever been the victim of any crimes. She said she had been the victim of a robbery over twenty years ago. No challenge was made and she was sworn in as a member of tire jury. After the trial had begun, she requested to speak to the judge. She told him that she had been raped in connection with the robbery but had been too embarrassed to tell the court. She assured the court that she had not told any of the jurors about the incident. She was not asked exactly what she had said or to whom she had said it. The court excused her from further service with the jury, denied defendants’ motions for mistrial, and proceeded with the trial using an alternate juror.

At trial the following witnesses testified for the State:

Mona Sullivan

Sometime after 10:00 P.M. on August 11, 1969, she was sitting with Donald Carlisle in the front seat of Carlisle’s car in Calumet Park Grove and Diane Wilmot and Arthur Steelman were in the back seat. A car of Negro youths parked nearby. Two of them came over and asked for cigarettes. They produced weapons, ordered Carlisle to get in the right rear seat, and commandeered the car. Michael Rosenborgh drove and Jerome Smith sat beside the right rear door next to Carlisle. The car with the other Negroes followed.

After driving for about ten or twenty minutes, the cars stopped beside the road. Rosenborgh got out, opened the left rear door where Diane was sitting, and ordered her to come with him. However John Smith approached, closed the rear door, and directed her to stay with the others. John Smith then drove Carlisle’s car while Rosenborgh followed in the other car. Jerome Smith warned John not to go near the house and John replied: “Don’t worry, I know where I’m going, Jerome.” After driving another ten or twenty minutes, they stopped in an unlighted garage.

John and Jerome Smith got out of the car and locked Carlisle and Steelman in the trank. Rosenborgh then got in the back seat with Diane and John Smith got in the front seat with the witness. Rosenborgh unzipped Diane’s pants. He hit her after she zipped them back up. John ordered the witness to remove her clothes and upon her refusal, with the help of Rosenborgh who ripped her bra, John removed them. She ripped John’s white striped tee shirt near the neck. John then raped her. After penetration she passed out. The assailants left when they heard a motorcycle backfire. They took her purse and address book. She ran after John Smith to get the keys for the trunk, but John said he did not have them. She got a good look at him and noted the license number of his auto. At trial she identified a photograph of the auto. Carlisle and Steelman forced their way out of the trunk through the back seat and they all went to a nearby house and called the police.

She was taken to St. Francis Hospital and was examined by a doctor. Although she did not see the doctor’s report, she thought it had been given to the police. During her testimony, John Smith requested he be shown all medical reports. These had previously been the subject of a pretrial discovery motion. The prosecutor denied any such reports were in his file and Officer Fro din. the investigating officer who was sitting at the prosecutors table, also denied he had any reports.

She and her mother went from the hospital to the police station where she saw the other complainants. She was shown John Smith in the back of the police station and identified him as the person who had raped her. John was wearing the shirt she had torn. She then observed a line-up. She identified John Smith, Jerome Smith, Rosenborgh and Davis by placing numbers on her tally sheet. She placed a question mark after Rosen-borgh’s number which she explained as something she had forgotten to erase. She was positive in her identification of John Smith and Rosen-borgh. She identified a photograph of John wearing the torn shirt and she denied that pictures of defendants shown to her by the assistant State’s Attorney before trial influenced her testimony.

Diane Wilmot

In addition to substantially corroborating Mona’s testimony, she identified Rosenborgh as the first driver of Carlisle’s car and John Smith as the second driver. She recalled that the second driver referred to the person in the back seat as “Jerome.” She testified that after expressing his intent to have sexual intercourse with her, Rosenborgh unzipped her pants. When she zipped them back up again, he struck her repeatedly. She confirmed Mona’s version of what happened in the front seat stating that at one point during the occurrence she did not see anyone’s head. When she arrived at the police station with Carlisle and Steelman, they were shown John Smith, who was sitting in a chair. She viewed one line-up. Although her line-up tally sheet did not include Rosenborgh’s number, she was certain she had identified him. She explained a statement made to the grand jury that Jerome Smith was the driver of the car as being due to her confusion regarding the names of the defendants. She was positive in her identification of Rosenborgh. She saw pictures of the defendants in the State’s Attorney’s office before trial.

Arthur Steelman

In addition to substantially corroborating the testimony of Mona and Diane as to the kidnapping and some of the other events, he identified all the defendants except Davis, but he was somewhat unsure of the exact roles each played in the crimes.

Police Officer Robert Frodin

He essentially repeated his testimony given on the motions to suppress. Midlothian Police Officer Raymond Horvath

He received a police radio communication describing an automobile. He observed the automobile at an all-night gas station and arrested its driver, John Smith. He recovered Mona’s address book from the dashboard of the car.

Donald Carlisle

After substantially corroborating the testimony of the other complainants as to the kidnapping and some of the other events, he identified Davis as the assailant who sat next to him in the back seat. Although he could not identify the drivers of the car, he thought John Smith and Jordan were involved and while he heard the assailants use the name “Jerome,” he was uncertain to whom it applied.

For the defense:

Joyce Ford, an alibi witness

She is Michael Rosenborgh’s aunt and he was babysitting for her three children until approximately 10:00 P.M. on the night of the occurrence.

Annabelle Rosenborgh, an alibi witness

She is Michael Rosenborgh’s mother and corroborated Joyce Ford’s testimony, stating that Michael arrived home soon after 10:00 P.M. and did not leave again that evening.

Juanita Smith, an alibi witness

She is the mother of John and Jerome Smith. She was called only on behalf of Jerome. All her children were home on the night of the occurrence. On cross-examination, over defense objections, she admitted that John had left for the evening at about 9:30 P.M.

Richard Rehash

He photographed the area and paced off the distances from two light poles at the opposite ends of the block to the garage in order to establish the lighting conditions in the area of the garage where the rape occurred. He did this at the request of John Smith’s counsel.

OPINION

We shall first consider defendants’ contentions on direct appeal and then consider John Smith’s post-conviction proceedings.

John Smith contends that he was not identified beyond a reasonable doubt. We disagree. He was identified in court by our eyewitnesses and linked to the crimes in numerous other ways. Mona Sullivan positively identified John Smith in court as the second driver of Carlisle’s car and as the person who raped her. She had the best opportunity to observe; she was sitting in the front seat while he was driving; he drove for quite a while; she was the victim of his act; she got a good look at him outside the garage after he had raped her; and the whole series of events were of extended duration. Moreover, she identified him on the night of the occurrence after her arrival at the police station and again when he appeared in the line-up. She was firm in her identification of him at trial. The law is well established that a positive identification by one eyewitness alone is sufficient to justify conviction. (People v. Stringer, 52 ILL.2d 564, 289 N.E.2d 631.) In addition Mona’s testimony was corroborated by the testimony of the other complainants. Diane Wilmot, Arthur Steelman, and Donald Carlisle also identified him. Other evidence also linked John Smith to the crimes. He was arrested within hours of the crimes in possession of a car bearing the description and license number of the assailants’ car. Mona’s address book was found in the car; and John was wearing the white striped tee shirt Mona had tom. A photograph of him wearing the tom shirt and a photograph of Smith’s car also corroborated Mona’s testimony. In these circumstances, we hold that John Smith was proved guilty beyond a reasonable doubt.

Michael Rosenborgh and Jerome Smith urged that their convictions be overturned also, contending that they were not identified beyond a reasonable doubt. They argue that although eyewitnesses identified them in court, their identifications were vague, unreliable, and insufficient to overcome their alibi defenses. Rosenborgh points out that Diane told the Grand Jury that Jerome Smith was the first driver of the car; that Diane’s line-up tally sheet did not include his number; and that Mona’s tally sheet had a question mark after his number. Jerome Smith points out that Mona’s testimony conflicted with Carlisle’s regarding whether he was the assailant in the back seat. Both urge that Steelman’s testimony be disregarded because it was uncertain. However, these matters were considered at trial by the jury and presented questions regarding the credibility of witnesses. The jmy resolved these questions in favor of the State and against the defendants. (See People V. Thompkins, 19 Ill.App. 3d 674, 312 N.E.2d 380.) After reviewing the record it is our opinion that the jury’s findings are supported by the evidence. Rosenborgh was identified by three eyewitnesses. Both Diane and Mona were positive in their identifications of him and explained the matters offered to impeach them. Jerome Smith was identified by two eyewitnesses in court. All four of the complainants identified him at the line-up on the night of the occurrence. Furthermore, three of the four complainants testified that one of the assailants referred to another as “Jerome” and two recalled that the second driver was referring to the assailant in the back seat of the car.

All of the defendants contend that the State’s use of various identification procedures was unduly suggestive and argue that: (1) the use of the photographs before trial by the State was improper; and (2) the use of a line-up consisting almost entirely of persons suspected of being involved in the same crimes was improper. In addition, John Smith argues that he was improperly subjected to multiple show-ups.

While police identification procedures suggesting to a witness that someone is the perpetrator of a crime are improper (Stovall v. Denno, 388 U.S. 293; People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152), it is recognized that all identification procedures contain some degree of suggestiveness and only those procedures which present a very substantial likelihood of irreparable misidentification are prohibited. (Simmons v. United States, 390 U.S. 377; Neil v. Biggers, 409 U.S. 188.) It is clear from the precedents that otherwise improper identification procedures may be justified by exigent circumstances. (People v. Higgins, 50 Ill.2d 221, 278 N.E.2d 68; People v. Newell, 48 Ill.2d 382, 268 N.E.2d 17; People v. Young, 46 Ill.2d 82, 263 N.E.2d 72.) It is also clear that such procedures cause no injury where a witness has a prior independent basis for his in-court identification. People v. Martin, 47 Ill.2d 331, 265 N.E.2d 685; People v. Stock, 15 Ill.App.3d 722, 304 N.E.2d 646; People v. Winfrey, 11 Ill.App.3d 164, 298 N.E.2d 413.

First, the three defendants argue that the assistant State’s Attorney’s use of photographs before trial was improperly suggestive. However, the evidence shows that he used these photographs only to assist him in the preparation of his case by determining for himself what the testimony would be. The photographs were not used by the pohce to secure arrests or to suggest that defendants were the perpetrators of the crimes. Moreover, Mona Sullivan testified that the assistant State’s Attorney did not influence her testimony. In these circumstances, the use of photographs was proper.

Next, the three defendants argue that the use of a line-up consisting almost entirely of persons suspected of being involved in the same crimes was improper. Although the composition of the line-up is a factor to be considered, defendants do not cite any case which goes so far as to hold that a Hne-up consisting almost entirely of persons suspected of being involved in the same crimes in itself makes an identification suggestive. There is no indication in the record that any of the defendants were identified simply because they were in the same line-up. We hold, in these circumstances, that the composition of the line-ups did not taint the identifications.

In addition, John Smith argues that he was improperly subjected to multiple show-ups. We perceive his major complaint to be that he was displayed to three of the complainants and tiren to Mona before the lineup. He also complains that Mona and Diane both saw him during the pretrial hearing after a motion to exclude witnesses had been granted. We cannot say that these circumstances were suggestive. The fact that Diane and Carlisle viewed John did not affect their testimony; they did not identify him at the Hne-up within a few horns after the “show-up.” Although one of the complainants, Steelman, did identify him at tire line-up, it is clear beyond a reasonable doubt that his testimony did not affect the jury’s determination. Moreover, Mona’s identification was positive. She had the best opportunity to observe Smith. He was on top of her and she had a good look at him. Her identification never wavered. She identified him within hours of the crimes; and her testimony was corroborated by other evidence. There was an independent basis for her identification. Moreover, the “show-up” at the pretrial hearing was obviously inadvertent and cannot be said to have resulted in prejudice. Upon reviewing the whole record, we cannot say that the identification procedures employed here were so suggestive as to deny the defendants due process of law.

The defendants next contend that the trial court erred in refusing to allow them to call the complainants or to call arresting officers other than Officer Frodin at the hearing on the motions to suppress evidence and identifications. Hearings on such motions eliminate collateral issues at trial (People v. Braden, 34 Ill.2d 516, 520, 216 N.E.2d 808, 810) and permit defendants to preserve their constitutional rights. For these reasons, a defendant must be given ample opportunity to support his position and generally should be permitted to call and to examine those witnesses who have information bearing on the matters before the court. (People v. Robinson, 46 Ill.2d 229, 263 N.E.2d 57; People v. Bentley, 11 Ill.App.3d 686, 297 N.E.2d 282.) However, where it appears that a pretrial motion is frivolous or imposed for delay, a trial judge may terminate the hearing on such motions. People v. Gatheright, 9 Ill.App.3d 1058, 293 N.E.2d 734; People v. Terrell, 6 Ill.App.3d 941, 287 M.E.2d 74.

The failure of the trial judge to permit the defendants to call the complainants or any arresting officers other than Officer Frodin at the pretrial hearing was at most harmless error because all the complainants and an arresting officer other than Frodin testified at trial and there was ample opportunity to examine the facts and circumstances relating to the identifications. The identifications here were not the product of suggestive police procedures. Moreover, the evidence that defendants committed the crimes was overwhelming. In these circumstances we can say beyond a reasonable doubt that the trial judge’s error was harmless.

The defendants finally contend that they did not receive a fair trial. They claim that: (1) the trial judge conducted the trial prejudically; and (2) the trial judge erred in not more thoroughly examining a juror excused after the trial had begun and that the juror’s failure to disclose the fact that she had been raped impaired their right of challenge. In addition, Jerome Smith and Michael Rosenborgh claim that the trial judge erred in not granting a severance, and John Smith claims that the trial judge erred in permitting Jerome Smith’s alibi witness to be cross-examined regarding him.

In his conduct of a trial, a judge must be impartial. (People v. Marino, 414 Ill. 445, 111 N.E.2d 534; People v. Rothe, 358 Ill. 52, 192 N.E. 777.) While he must be careful not to influence the jury (People v. Santucci, 24 Ill.2d 93, 180 N.E.2d 491), he may forbid repetitious questions (People v. Davis, 35 Ill.2d 55, 219 N.E.2d 468) and he may question witnesses (People v. Palmer, 27 Ill.2d 311, 189 N.E.2d 265). Furthermore, although a judge must permit defense counsel to cross-examine witnesses (People v. Coli, 2 Ill.2d 186, 117 N.E.2d 777) and to make objections (People v. Lewerenz, 24 Ill.2d 295, 181 N.E.2d 99) he must also expedite the proceedings (People v. McCain, 29 Ill.2d 132, 193 N.E.2d 784).

In the instant case, defendants complain of the following actions by the judge during the trial: (1) the judge’s statement that Steelman was unsure of the distance from a street light to the garage where the rape occurred; (2) his questioning of Rekash regarding the estimated length of the courtroom and his subsequent comment when Rekash underestimated its length; (3) his comment that John Smith’s counsel’s method of attempting to impeach Officer Frodin was “just plain nonsense”; (4) his statements that he disliked John Smith’s counsel’s frivolous objections; and (5) his comments that John Smith’s counsel should “sit down” and make “no speeches.”

Trials of multiple defendants present great difficulties for a trial judge. The judge did not abuse his discretion in examining Rekash and his examination and comment were not prejudicial nor were they intended to be. The judge’s characterization of defense counsel’s “inartful” method of impeachment, although harsh, was not improper in the circumstances. The judge’s comments that counsel should “sit down” should make “no speeches,” and should make no frivolous objections were made in the context of expediting already lengthy proceedings. Moreover, the court praised counsel as being a good lawyer. We find no error in the judge’s statement that Steelman was unsure of the distance to a street light since it was made only after several similar questions had been answered in the same manner. The court’s conduct of the trial was not unfair.

The defendants next claim that the trial judge erred in not more thoroughly examining a juror excused after the trial had begun and that the juror’s lack of candor impaired their right to challenge. They rely primarily upon People v. Cain, 36 Ill.2d 589, 224 N.E.2d 786, and Lewis v. United States, 146 U.S. 370. We believe the case of People v. Rohwedder, 106 Ill.App.2d 1, 245 N.E.2d 282, presents a much more comparable situation. In Rohwedder, the trial court was confronted with the same unique situation the trial court was confronted with in the instant case— a juror’s admission that she had not been fully candid on voir dire ex-animation. The court in Rohwedder determined that defendant was not prejudiced by this situation. The same is trae in the instant case. Although the trial judge in the instant case did not examine the juror regarding exactly what, if anything, she had said to the other jurors, the juror stated that she had not talked to the other jurors about the fact that she had been raped as well as robbed some twenty years before. (The fact that she had been robbed had been disclosed.) She carefully distinguished between the rape and the robbery and stated that she was too embarrassed to talk about the rape. In these circumstances, no prejudice resulted from the court’s questioning or from the juror’s lack of candor and her excuse from further jury service.

Jerome Smith and Michael Rosenborgh finally claim that the trial judge erred in not severing their trials from John Smith's. The law is clear that a severance is required where incriminating statements of a co-defendant are likely to be admitted into evidence at trial. (Bruton v. United States, 391 U.S. 123; People v. Clark, 17 Ill.2d 486, 162 N.E.2d 413.) Defendants would have us expand this rule to include situations where the jury may infer that a statement may have been made even though no such statement was used at trial. However, the effect of such an expansion would be a proliferation of trials and a repetition of testimony without greatly benefiting the accused. In the instant case, since John Smith’s statement was not used at trial, we cannot say that the trial court erred in not granting a severance.

In contending that he was denied a fair trial, John Smith urges that the trial court erred in permitting Jerome Smith’s alibi witness to be cross-examined regarding him. This was a unique situation. The mother of two defendants was called to present an alibi for only one of her sons, Jerome Smith. However, she testified that all her children were home on the night in question. Rather than leave the jury with the impression that John Smith was also home, the prosecutor properly examined her regarding the matter. Defendants were not denied a fair trial.

We find no merit in the defendants’ contentions on appeal of their convictions. The convictions of Jerome Smith, Michael Rosenborgh, and John Smith are affirmed.

II.

We now consider John Smith’s appeal from dismissal of his post-conviction petition. He contends that: (1) he was denied due process of law by the State’s failure to comply with a pretrial discovery motion regarding a doctor’s report favorable to him and by the State’s use of perjured testimony, (2) he was denied his right to a fair trial by the State’s failure to correct a false impression left by certain testimony, and (3) he was denied effective assistance of counsel by his counsel’s failure to discover the doctor’s report.

The following facts are pertinent to John Smith’s post-conviction proceedings.

After his convictions, John Smith petitioned the court for relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1967, ch. 38, par. 122 — 1 et seq.). His petition, in raising certain constitutional issues substantially the same as his contentions on appeal of dismissal of his petition, specifically alleged: (1) that Mona Sullivan testified that he had raped her, that she had passed out after penetration, that she was taken to the hospital and examined, and that she believed the doctor’s report was given to the police; (2) that Officer Frodin was present at the hospital, that he had been present during some of the prosecutor’s interviews with Sullivan, and that he and the prosecutor had stated that they did not have the report; and (3) that the report and other documents indicated Sullivan and Frodin had perjured themselves and that the State, knowing of this perjury, had not corrected the record.

Along with his petition, he filed, in addition to affidavits of counsel: (1) a copy of an emergency room report which indicated that Mona Sullivan stated she had been raped, that Officer Frodin was present at the hospital at the time of her examination, and that the examining doctor was the Sullivans’ family doctor; (2) a copy of a “Leaving Hospital Against Advice” form signed by Mona’s mother releasing the hospital from liability for Mona’s discharge from the hospital; (3) a statement of the examining doctor explaining his report and indicating that Mona Sullivan had told him she had been raped; and (4) a copy of the examining doctor’s report. The doctor’s report states that “[Mona Sullivan] claims she passed out and does not know what happened to her physically” and that:

“From this particular examination the diagnosis of rape absolutely cannot be made. The diagnosis will be based on evidence of traumatic entrance and there is no sign in the vaginal examination of a traumatic entrance. Other criterion would be a sign of ejaculation. There is no area of wetness of the pubic hairs, of the introitus, of the labia majora and labia minora fold. There is no sign of smear [sperm] actually within the vaginal tract, so the only thing that definitely can be made [said] is that there are no signs of trauma, there are no signs of sperm.”

It also indicated that she was 14 weeks pregnant at the time of the incident.

Upon examining the petition, the trial court was initially impressed. He determined that an evidentiary hearing was required. When the date for the hearing arrived, the State renewed its previously made motion to dismiss, alleging that Smith had failed to raise any constitutional questions and that his allegations were insufficient to require a hearing. After hearing arguments, the trial court dismissed the petition for failure to raise a constitutional question.

The Post-Conviction Hearing Act (Ill. Rev. Stat. 1967, ch. 38, par. 122 — 1 et seq.) provides that the State may move to dismiss a post-conviction petition where no constitutional issue is presented. Petitioners contentions on appeal of dismissal of his post-conviction petition all relate to a doctor’s report which stated that there was no medical evidence that Mona Sullivan was raped. The existence of this report was known at trial.

The petitioner contends that he was denied due process of law by the State’s failure to comply with a pretrial discovery motion regarding a doctor’s report favorable to him and by the State’s knowing use of perjured testimony. At the time Smith made his pretrial motion, the criminal discovery rules were not in effect. His pretrial motion was based upon Brady v. Maryland, 373 U.S. 83. In Brady the court stated:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (373 U.S. at 87.)

In the instant case, the facts do not indicate that the State suppressed anything. The prosecutor stated that he did not have the report in his file; Officer Frodin stated that he did not have the report; the complainant had no direct knowledge regarding the report; and the doctor’s statement did not indicate that he had given the report to any police officer. Even if we were to assume that the report was material, since the State did not have the report, it can hardly be accused of suppressing it. (See People v, Richards, 120 Ill.App.2d 313, 350, 256 N.E.2d 475, 494.) Furthermore, the facts do not indicate that the State knowingly used perjured testimony. First, defendant assumes that because there was no medical evidence of rape that the rape did not occur (an assumption even the doctor in his statement was unwilling to make) and concludes that therefore Mona Sullivan must have perjured herself by testifying that she was raped. Although the doctor’s report suggests that Sullivan may have made a prior inconsistent statement regarding when she passed out, the emergency room report, which was made at the same time as the doctor’s report, and the doctor’s subsequent statement both indicate that Sullivan said she had been raped. This is consistent with her testimony at trial. Thus, it cannot be said that Mona Sullivan perjured herself. Second, defendant assumes that because Officer Frodin was present at the hospital, he received a copy of the doctor’s report. During Sullivan’s testimony when the existence of the report first became known, Officer Frodin was asked whether he had the report and, although he was not under oath, he answered that he did not have the report. Subsequently, he was caUed as a State’s witness and subjected to cross-examination. Nothing in cross-examination or in the doctor’s statement indicates that Frodin was given the doctor’s report. We find no evidence that he perjured himself. In these circumstances we cannot say that defendant was denied due process of law.

The petitioner also contends, relying upon Napue v. Illinois, 360 U.S. 264, and People v. Higgs, 11 Ill.App.3d 1032, 298 N.E.2d 283, that he was denied a fair trial by the State’s failure to correct false and misleading impressions left by the testimony of Mona SulUvan and Officer Frodin. In the instant case, as we have already held, there is no evidence that either SulUvan or Frodin perjured themselves. For the same reasons, there is no evidence that there were any false or misleading impressions left by their testimony. Petitioner’s contention lacks merit.

The petitioner finally contends that he was denied effective assistance of counsel by his counsel’s failure to discover the doctor’s report. We do not agree. Not only does the record disclose that defense counsel ably represented defendant at trial as the trial court specifically commented, but it appears, for example from the trial testimony of Richard Rekash, that defense counsel did investigate the facts surrounding the crimes. Defense counsel knew at trial of the existence of the report; he may, therefore, have also known of its contents. However, whether he knew of its contents or not, he apparently decided not to explore that matter further at trial. This decision, made in the course of a lengthy trial of many defendants and with multiple charges against his client, was a matter of judgment, not of incompetence. People v. Wesley, 30 Ill.2d 131, 195 N.E.2d 708.

Therefore, the dismissal of John Smith’s post-conviction petition is affirmed.

Judgments affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DRUCKER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Paul L. Gibson, Defendant-Appellee.
    (Nos. 57373-79 cons.;
    First District (5th Division)
    July 12, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and William K. Hedrick, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Marc L. Fogelberg and John T. Moran, Jr., Assistant Public Defenders, of counsel), for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This is an appeal by the State from the dismissal of criminal charges defendant for violation of the fourth-term rule embodied in section 103— 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, par. 103 — 5(a)). It is contended that a competency examination ordered after a motion filed on behalf of the State requesting such an examination tolled the running of the 120-day rule.

Seven indictments charged defendant with the crimes of armed robbery, robbery, attempt robbery, theft, and bail jumping. On March 17, 1971, on defendant’s motion, it was ordered that he be examined by the Behavior Clinic. In a letter dated March 31, 1971, Dr. E. J. Kelliher concluded that defendant was not competent to stand trial. However, at a competency hearing conducted on April 5, 1971, a jury found defendant to be competent, and judgment was entered on this finding. On defendant’s motion the case was continued until May 5, 1971.

Thereafter, following three more continuances, none on the motion of defendant, the case was called on July 6, 1971. On that date the State represented to the court that it had been Dr. Kelliher’s opinion that defendant was suffering from “a progressive type of mental disease” and consequently there existed a “bona fide doubt or bona fide question as to Mr. Gibson’s competency.” Defendant immediately pointed out that on April 5 a jury had determined that he was competent to stand trial. The court responded that the finding notwithstanding, it felt “duty bound” to order “another behavior clinic examination.” Defendant, who had been incarcerated for 10 months, then inquired whether the order for an examination would “break” his term. The court assured him that it would not since the examination was ordered “on the motion of the State.” The court thereupon entered an order for a behavior clinic examination and continued the case until July 19, It stated that:

“* * * we will set it for subpoenas as to the bail jumping and the State may have, depending on what the results are, a competency hearing if it so desires, but at any rate, we will proceed on one or the other.”

On July 19 Dr. Kelliher filed a report concluding that defendant was competent to stand trial. Defense counsel stated that he was prepared to go to trial. The State, however, requested a continuance, requesting a mid-August date since it felt “we have a term, approximately September.” On the State’s motion the case was continued until August 23 with subpoenas on the bail jumping charge only. On August 23, again on the State’s motion, the case was ordered continued until September 9.

Defendant on September 9, filed his petition for discharge under section 103 — 5. A hearing was held the following day at which it was adduced that the State elected to proceed only on the bond-jumping charge because it was “the only good case they had.” The trial judge in granting defendant’s motion stated that:

“The Court does not believe the Court suspended the trial, the Court does not believe that the Court acted in accordance with section 104 — 2. The Court set this case for trial the next date.”

Rather, on July 6 it granted “a request by the State for a psychiatric examination and a continuance to July 19th for the case in chief.”

OPINION

One hundred twenty-seven days passed from May 5, 1971, the date defendant’s term began to run, until September 9, 1971, the date on which he filed his petition for discharge, thereby invoking the 120-day rule of section 103 — 5. During this period no delay in the proceedings was “occasioned by the defendant.” (Ill. Rev. Stat. 1969, ch. 38, par. 103— 5.) It is the State’s contention that despite this fact, defendant’s term was tolled by the July 6 order for a psychiatric examination, and therefore the court below erred in granting his petition for discharge.

The Fourth Term Act states that a defendant’s term is tolled by an order for a competency examination ordered pursuant to section 104— 2 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 104— 2 ). Not all orders for competency examinations meet the prescriptions of this act. For example, it has been held that a petition filed merely for purposes of delay will not toll the running of a defendant’s term. (People v. Hugley, 1 Ill.App.3d 828, 275 N.E.2d 178.) Rather, only where a bona fide doubt as to a defendant’s competency has been raised will an order for a behavior clinic examination meet the requirements of section 104 — 2. (Cf. People v. Lawrence, 132 Ill.App.2d 513, 270 N.E.2d 510.) A bona fide doubt as to a defendant’s competency to stand trial exists where it is unclear whether he understands the nature and purpose of the proceedings against him or is unable to assist in his own defense. (See Ill. Rev. Stat. 1969, ch. 38, par. 104—1.) Thus an individual may be competent to stand trial despite the fact that he is mentally disturbed or defective and requires psychiatric treatment. (Withers v. People, 23 Ill.2d 131, 177 N.E.2d 203.) In determination whether a bona fide doubt exists, courts have taken into consideration such factors as a defendant’s “lucidity” and his comprehension of the significance of the proceedings against him. (See People v. Brown, 132 Ill.App.2d 302, 270 N.E.2d 501.) In addition, reliance has been placed upon the fact that a defendant was found competent following an evidentiary hearing shortly before a request for a second mental examination had been made. (Brown.) The determination of a trial court with regard to the issue of whether a bona fide doubt as to competence has been raised will, of course, be given great weight by a court of review. People v. Southwood, 49 Ill.2d 228, 274 N.E.2d 41.

In the case at bar the trial judge plainly stated that he did not believe the second behavior clinic examination was ordered pursuant to section 104 — 2. Rather, he indicated that on July 6 he merely granted a request for a psychiatric examination and had no desire that the trial should be long postponed. He noted, moreover, that the order for an examination clearly did not interfere with the State’s preparation for trial. The State, manifesting a desire to go forward only on the bail-jumping charge, appeared to concur with the view of the trial court that the examination was not ordered in accordance with section 104 — 2. On July 13 the assistant State’s Attorney, in requesting an August trial date, indicated that tire prosecution believed that it was confronted with a “September term.”

Furthermore, in reviewing the record we find that the State on July 6 brought nothing to the attention of the court that would give rise to a bona fide doubt as to defendant’s competence to stand trial. The assistant State’s Attorney referred to a behavior clinic report which indicated that defendant might be suffering from a progressive mental disorder. Three months before, however, a jury having presumably considered this report, found him competent. Defendant on July 6 did not behave in a manner which would indicate that his mental state had deteriorated during the intervening 3 months. Indeed, he appeared to be quite lucid and displayed a remarkable understanding of his procedural rights.

For the foregoing reasons we find that the court below correctly ruled that the order for a mental examination issued July 6 did not toll defendant’s term and consequently we affirm its discharge of defendant.

Affirmed.

BARRETT and LORENZ, JJ., concur.

       Ill. Rev. Stat. 1969, ch. 38, par. 103—5, provides in pertinent part that:
      “(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104 — 2 of this Act e * tt"

       Ill. Rev. Stat. 1969, ch. 38, par. 104—2, provides in pertinent part that:
      “(a) If before a trial * * * the court has reason to believe that the defendant is incompetent the court shall * ° * impanel a jury to determine the defendant’s competency. * * *”

        In the most recent amendments to our Criminal Code, section 104 — 2 was repealed and section 5 — 2 — 1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2 — 1(c)) enacted to cover this subject matter. We note that our legislature neglected to amend section 103 — 5 at the time the new provision was enacted and consequently it still refers to examinations “for competency ordered pursuant to Section 104 — 2 * * See Ill. Rev. Stat. 1973, ch. 38, par. 103—5(a).


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bernard Donald, Defendant-Appellant.
    (No. 59239;
    First District (5th Division)
    July 12, 1974.

      David C. Thomas, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

A jury found defendant guilty of the murder and armed robbery of ComeHus Lewis and not guilty of the murder of Eugene Talbert, and he was sentenced to a term of not less than 14 nor more than 25 years. A number of issues are presented on appeal, but it wiH be necessary only to consider the contention of defendant that the trial court erred in not giving Illinois Pattern Jury Instruction-Criminal No. 2.03 (IPI 2.03), instructing the jury as to defendant’s presumption of innocence and the State’s burden of proof.

It appears that at the instruction conference, defendant’s attorney tendered only two instructions, both of which were refused by the court because they were covered by the State’s given instructions. No instruction was submitted by either party or given by the court concerning the presumption of defendant’s innocence. Subsequently, after the jury had retired to deliberate, a request by defendant’s attorney that IPI 2.03 be given to the jury was refused. The propriety of the failure to give this instruction was raised in defendant’s post-Mai motion, which was denied. OPINION

Defendant contends that, although his attorney did not submit IPI 2.03, it should have been tendered by the State or given, sua sponte, by the court. The instruction reads as follows:

“[The] [Each] defendant is presumed to be innocent of the charge[s] against him. This presumption remains with him throughout every stage of the Mal and during your dehberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.”

The State maintains the jury was fully informed of the State’s burden of proof and defendant’s presumption of innocence. In support thereof, it points out that (1) in his opening statement, defendant’s attorney stated, “Bernard Donald need not prove his innocence, but that the State must prove him guilty beyond a reasonable doubt”; (2) in his closing argument, defendant’s attorney said, “When the jury was being selected you all agreed that you would require proof beyond a reasonable doubt from the State”; (3) in its closing argument, the prosecutor said, “It is true it is the State’s burden to prove tire defendant guilty beyond a reasonable doubt”; (4) that IPI-Criminal No. 7.02 was given, as follows:

“If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty”;

and (5) that IPI-Criminal No. 14.02 was given, as follows:

“If you believe from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

There is a line of cases holding that no error results from the failure to give a certain instruction where the jury was adequately informed of its subject matter by other given instructions. Notable are: People v. Jones, 6 Ill.App.3d 669, 286 N.E.2d 87, People v. Meeks, 11 Ill.App.3d 973, 297 N.E.2d 705, and People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631.

In Jones, at page 683, the court stated:

“While it might have been better for the court to have instructed more specifically on the elements of the offenses charged, we do not find that the failure of the trial court so to instruct was prejudicial error. ‘Where the instructions, as a whole, inform the jury of the facts which are essential to the proof of the commission of a specific crime, an error in giving an instruction wiH not be considered so prejudicial as to warrant a reversal.’ People v. Hyde (1971), 1 Ill.App.3d 831, 275 N.E.2d 239.”

In Meeks, where it was contended that IPI 25.05 should have been given by the court, sua sponte, the court disagreed, stating at page 980:

“The defendant contends that the jury should have been instructed in conformance with IPI-Criminal No. 25.05, which provides that the State is required to prove that the defendant was not justified in using the force which he did use. The defendant did submit, and the court gave, other pattern instructions, including IPI-Criminal No. 24.06, which is couched in the language of the statute and succinctly states the law of self-defense.”

In Stringer, where defendant contended it was error to refuse a requested instruction on his theory of the case, i.e., erroneous identification, the court stated at page 570:

“It is our opinion, however, that the jury was otherwise adequately instructed on the subject matter of the refused instruction and therefore error did not occur.”

Thus, it is argued by the State that no error resulted from the failure to give IPI 2.03, because the juiy was adequately informed as to the presumption of innocence and the State’s burden to prove defendant guilty beyond a reasonable doubt from the statements and arguments of counsel and IPI Instructions 7.02 and 14.02.

We do not agree. Initially, we believe it significant that in the committee note to IPI 2.03, it is stated:

“The firm commitment to presumed innocence which can be overcome only by proof beyond a reasonable doubt is the touchstone of American criminal jurisprudence. This instruction must be given in all cases.” (Emphasis by Committee.)

We note also that IPI 2.03 is explicit and concise, and we find it difficult to believe that the statements and arguments of counsel, referred to by the State above, would have the same impact on the jurors as would the instruction. Moreover, in this regard, the record discloses the following admonishments of the court to the jury:

“Neither opening statements or closing arguments are evidence and any statement or argument made by the attorneys which is not based on the evidence should be disregarded.
# # #
[I] will now instruct you as to the law. The law applicable to this case is as stated in these instructions * #

These comments emphasize the importance of instructions and stress the fact that the law to be applied was contained in them rather than in the statement or arguments of counsel. Furthermore, People v. Stringer, supra, the only case cited by the State in support of its position, is not controlling here. The refusal of an instruction in Stringer was upheld on the ground that other instructions covered the subject matter of the refused instruction. In the instant case, IPI 7.02 and 14.02 and the other given instructions were silent as to certain essential elements of IPI 2.03; namely, that defendant is presumed innocent, that the presumption remains with him throughout the case, that the burden of proving the guilt of defendant beyond a reasonable doubt remains on the State throughout the case, and that defendant is not required to prove his innocence.

The only Illinois case referred to in the briefs or that we have been able to find which has previously considered the failure to give IPI 2.03 is People v. French, 5 Ill.App.3d 908, 284 N.E.2d 481. There, defense counsel submitted no instructions and the court held that IPI 2.03 should have been given, stating at page 909:

"If, as here, the defense counsel does not offer this instruction [IPI 2.03], it should be tendered by the prosecution, or the court should give it on its own motion. We do not reach, the question of whether or not it is reversible error to fail to give this instruction in any case. Under the facts in this case, where the presumption of innocence was not mentioned in any instruction or in argument to the jury, the failure to give this instruction amounted to either a denial of due process or inadequate representation, and requires reversal.”

Here, as we have stated before, the trial court’s comments to the jury nullified the effect of statements made by the attorneys and, because the presumption of innocence was not mentioned in any given instruction, we believe the failure to give IPI 2.03 was a denial of defendant’s right to a fair trial and, in the light of the reasoning of the court in People v. French, supra, and the comment of the IPI committee that the instruction must be given in all cases, we are of the opinion that when IPI 2.03 was not tendered by counsel, it should have been given, sua sponte, by the court. We conclude that the failure to do so here is prejudicial error.

The State also argues that defendant may not raise on appeal the failure to give IPI 2.03 because it was not tendered at trial. It cites as authority for this rule People v. Springs, 51 Ill.2d 418, 283 N.E.2d 225, where the Illinois Supreme Court stated, at page 425:

“ ‘No party may raise on appeal the failure to give an instruction unless he shall have tendered it.’ »#*<### the court is under no duty to give instructions not requested by counsel.’ ”

We note, however, that in Springs the instruction not tendered or given concerned the necessity of force and the exercise of resistance in a rape case. It appears, however, that the essential elements of this instruction were covered in other instructions and that the failure to give it did not “deprive defendant there of due process or a fair trial. We believe that the reasoning of the court in People v. Davis, 74 Ill.App.2d 450, 221 N.E. 2d 63, is more controlling of the facts here. In Davis, defendant was charged with attempt to commit robbery and although the jury was instructed as to the statutory definition of attempt, it was not instructed as to the specific offense charged or its essential elements, and the term “robbery” was never mentioned in any other instruction. The Davis court held that it was the responsibility of the State as weU as the defense to tender and the trial court to give an instruction on the essential elements of robbery, stating at page 454:

“[W]e consider this type of instruction so vital to the veriest function of a jury that it must be the court’s responsibility to make sure that such a one is given, directing its preparation, if necessary. The absence of such a fundamental instruction in the instant case produces a situation where the deficiency in the totality of the jury’s instruction is so great as to require a review by this court in the interest of fair trial or the proper administration of justice, even though there was no prior objection or assignment of error.”

Here, we are of the opinion that the essential elements of IPI 2.03, pointed out above, which were not covered in other instructions, were crucial to defendant’s right to a fair trial. Under the reasoning of Davis, their absence prevents the operation of the rule of waiver, as expressed in People v. Springs, supra, and requires a new trial in the interest of justice, even though the instruction was not tendered by defendant.

The judgment is reversed, and the cause remanded for a new trial.

Reversed and remanded.

BARRETT and DRUCKER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy Lee Taylor, Defendant-Appellant.
    (No. 59668;
    First District (5th Division)
    July 12, 1974.
    Paul Bradley and Margaret Maxwell, both of the State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James B. Haddad, Assistant State’s Attorneys, of counsel), for the. People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendant entered pleas of guilty to charges of armed robbery anti aggravated battery arising out of the stabbing and robbery of Emanuel Dean on February 13, 1971, in violation of sections 18 — 2, 12 — 4 and 12 — 4(b — 1) of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, pars. 18 — 2, 12 — 4, and 12 — 4(b — 1).) On December 7, 1971, he was sentenced to probation for 5 years with the first 4 months to be served in the Cook County jail. The first 4 months were “considered served.” He was also ordered to pay in two equal monthly installments the sum of $101 as restitution. On April 27, 1972, the Probation Department applied for a warrant for violation of probation and the warrant was issued. On September 27, 1972, following a hearing on a rule to show cause why probation should not be revoked, the court revoked defendant’s probation and sentenced him to a term of 2 to 4 years. The Unified Code of Corrections not then being in effect, the trial court did not credit defendant for the time he had spent on probation.

On appeal from revocation of his probation, defendant contends only that he is entitled to credit for the time he served on probation pursuant to section 5 — 6 — 4(h) of the Unified Code of Corrections. Defendant was not sentenced, either originally or upon revocation of his probation, under the Unified Code of Corrections. Therefore, he is not entitled to benefit from the probation credit provisions of the Code unless the Code applies to his case. Section 8 — 2 — 4 of the Code governs the application of the Code to prosecution begun prior to its effective date. It provides that:

“Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act. If the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced.” (Emphasis added.) Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 2 — 4.

Defendant argues that the Code is applicable because the case has not been finally adjudicated. The State argues that the Code is not applicable because the sentence for armed robbery under the Code is not less harsh than under the prior law. The State points out that at the time of the offense armed robbery had a 2-year minimum sentence and probation was permitted but no provision was made for probation credit; and that under the Code armed robbery has a 4-year minimum sentence and probation is not permitted but admits that if probation were permitted' a credit would be allowed. People v. Henderson, 20 Ill.App.3d 788, 314 N.E.2d 503, People v. Talach, 19 Ill.App.3d 189, 311 N.E.2d 319, and People v. Chalmers, 14 Ill.App.3d 993, 303 N.E.2d 781, indicate that the Code applies in the instant case and that defendant is entitled to credit for the time he. spent on probation.

The State, however, calls our attention to the fact that the probation-credit section of the Code, section 5 — 6 — 4(h), has been amended. This section, as originally enacted, provided that:

“Resentencing after revocation of probation or of conditional discharge shall be under Article 4. Time served on probation or conditional discharge shall be credited against a sentence of imprisonment or periodic imprisonment.” Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 6 — 4(h).

The second sentence of the section as amended now provides:

“Time served on probation or conditional discharge shall, be credited by the court against a sentence of imprisonment or periodic imprisonment unless. the court orders otherwise.” Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6 — 4(h).

According to this court in People v. Braddock, 17 Ill.App.3d 73, 308 N.E.2d 74, this amendment is not effective until July 1, 1974. Moreover, even if it were effective, this amendment could not be applied here because such application would violate the constitutional prohibition against ex post facto laws. People v. DuPree, 16 Ill.App.3d 769, 306 N.E.2d 693; People v. Johnson, 133 Ill.App.2d 818, 263 N.E.2d 901; People v. Wyckoff, 106 Ill.App.2d 360, 245 N.E.2d 316.

The amount of credit to which defendant is entitled, in accordance with section 5 — 6 — 4(h) as originally enacted, is measured “from the date he was placed on probation to the date that a bench warrant issued for his arrest.” (People v. Burton, 14 Ill.App.3d 1096, 1097, 303 N.E.2d 16.) Accordingly, the cause is remanded to the trial court with directions to issue an amended mittimus reflecting credit for the time actually served on probation.

Remanded with directions.

SULLIVAN, P. J., and RARRETT, J„ concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Roger Pierce, Petitioner-Appellant.
    (No. 59868;
    First District (5th Division)
    July 12, 1974.
    Kenneth N. Flaxman, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE DRUCKER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kiyoshi Mogi, Defendant-Appellant.
    (No. 59876;
    First District (5th Division)
    July 12, 1974.
    Lester H. Broussard, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Lorence H. Slutzky, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DRUCKER.