author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR HARRIS et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—87—0376, 1—87—0487 cons.
    Opinion filed March 30, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant Victor Harris.
    Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant Paul Hickombottom.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Laura J. Diamant, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Victor Harris, Paul Hickombottom (defendants) and Oliver Weekly were charged by indictment with murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a)(1)(2)), felony murder (Ill. Rev. Stat. 1985, ch. 38, par. 9— 1(a)(3)), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—2(a)), and armed violence (Ill. Rev. Stat. 1985, ch. 38, pars. 33A—2, 18— 2(a)). Prior to trial, the State dismissed the murder and armed violence charges against defendants and the trial court granted Hickombottom's motion for severance from Harris. Following Hickombottom’s and Harris’ separate but simultaneous jury trials, defendants were found guilty of felony murder and armed robbery. The trial court merged the lesser-included offense of armed robbery with the felony murder conviction, and Harris was sentenced to 25 years’ imprisonment; Hickombottom was sentenced to 40 years’ imprisonment.

On defendants’ consolidated appeal from their convictions and sentences, Harris contends that (1) he was not proved accountable for felony murder and armed robbery beyond a reasonable doubt; (2) he was denied a fair trial because the trial court improperly emphasized the murder and accountability instructions at trial; (3) he was denied a fair trial as a result of improper prosecutorial comments at trial; and (4) his 25-year sentence is excessive. Hickombottom contends that (1) he was denied his right to an impartial jury and (2) his 40-year sentence is excessive.

We affirm.

On February 28, 1986, at approximately 9 p.m., the victim, Jose Moreno, died of a gunshot wound to the chest. No money was recovered at the scene of the crime or from the victim’s personal belongings.

For brevity, and since much of the evidence overlaps, the evidence adduced at both trials which is pertinent to defendants’ appeals will be detailed here together, even though each jury heard only the evidence pertinent to the defendant on trial before it.

The State introduced the following evidence: Detective Robert McGuire of the Chicago police department testified that on February 28, 1986, at approximately 9 p.m., he was assigned to investigate Moreno’s murder. He arrived at the crime scene, “canvassed” the area, and obtained the name of defendant Victor Harris.

After proceeding to Harris’ apartment, located at 6028 South Wabash in Chicago, McGuire arrested Harris. While being transported to the “Area One” police station, Harris was given his Miranda rights. Upon arriving at the police station at approximately 12:30 a.m. on March 1, 1986, and after Harris was again given his Miranda rights, McGuire interviewed Harris regarding the “robbery-murder” that had occurred. Harris stated that he had no knowledge of the crime and did not know the victim. McGuire informed Harris that the victim was seen in Harris’ building earlier that evening, at which time Harris stated: “All right. I will tell you the truth.” Thereafter, Harris gave McGuire an oral statement. Harris’ statement indicated the following.

Harris agreed to allow the victim, Tony Chavez and Paul Hickombottom to use his apartment for a drug distribution operation. In turn, he would receive $30 per day. On February 28, 1986, the victim, Chavez and Hickombottom were at his apartment. The victim left Harris’ home, but returned at approximately 6 p.m. with a supply of narcotics, which were to be sold from Harris’ apartment. Chavez paid the victim for the drugs, and the victim left the apartment, but returned shortly thereafter bleeding from the head. The victim stated that somebody tried to rob him downstairs. Hickombottom whispered to Harris that it was Weekly who had attempted the robbery.

Defendants left Chavez and the victim at the apartment, and they proceeded to Hickombottom’s mother’s apartment in the victim’s car. Upon their arrival, Hickombottom informed Harris that they were going to “stickup” the victim for his money, that it was Weekly who had attempted to rob the victim, and that he did not think Weekly would utilize a toy gun. Defendants left the apartment in search of a gun and later encountered a person known as “Do-Do,” who gave Hickombottom a .22 caliber revolver. Hickombottom then gave Harris the gun. Defendants returned to Hickombottom’s apartment, where they met Weekly. Harris gave Weekly the gun and they all left in the victim’s vehicle.

While driving, Hickombottom requested Harris’ help in “sticking up” the victim, and Harris responded that Chavez told him that the victim would have approximately $1,700 in his possession. Before returning to Harris’ apartment, defendants dropped Weekly off at 61st and State Streets in Chicago so that he could hide at 61st and Wabash Streets.

Once inside the apartment, Hickombottom stated, “All right. I’m ready to go and I will walk you down,” at which time the victim and Hickombottom exited the apartment. A short time later, “[Hickombottom] came running up the stairs,” stating, “They shot him.”

After the paramedics and police left the crime scene, Harris drove Chavez home in his car and Hickombottom left in the victim’s car. Harris met Hickombottom at Hickombottom’s apartment, after he drove Chavez home, and they proceeded together in the victim’s car to Weekly’s apartment. There, Weekly returned the gun to Hickombottom and they split the money that was taken from the victim. Harris received $50 from Weekly and $60 from Hickombottom for his help.

While driving back to Hickombottom’s apartment, Weekly and Hickombottom discussed the possibility of purchasing a television, a video cassette recorder and a stereo. Hickombottom stated that “[he] saw the guy with his hands in the air.” Weekly replied that “I knew you wanted to shoot him.” Subsequent to arriving at Hickombottom’s apartment, Harris picked up his girl friend, Johnice Singleton, and they returned to his apartment.

McGuire further testified that he recovered $110 from Harris and that Harris assisted him in arresting Weekly and Hickombottom. Harris informed McGuire that he could find the victim’s car at Hickombottom’s residence, an apartment building located at 6565 South Yale, in Chicago. He also stated that McGuire could locate the gun used to commit the crime in Hickombottom’s apartment, No. 42, “in a night stand, under a television, in the first bedroom to the left.”

When McGuire arrived at Hickombottom’s apartment building, he had occasion to observe the victim’s parked vehicle. The vehicle was placed under surveillance. A short time later two men and one woman exited the building and entered the victim’s vehicle, at which time McGuire stopped the vehicle and ordered all three passengers to exit the car. Hickombottom was among the passengers in the car, but identified himself as “Paul Hassle way.” Also present in the vehicle was Hickombottom’s girl friend, Renee Williams, and an individual named Arthur Wyatt. Subsequently, McGuire entered apartment 42 and recovered a .22 caliber revolver from a night stand underneath a television set. Harris thereafter accompanied McGuire to an apartment located at 2961 South Dearborn Street in Chicago. Upon their admission to the apartment, they located Weekly, who was hiding under a bed, and arrested him. Weekly was transported to the “Area One” police station in a squad car, after which the squad car was searched and a hooded, black mask was recovered. After Weekly’s arrest, Detective James O’Connell of the Chicago police department recovered a television set and a video cassette recorder from the apartment located at 2961 South Dearborn Street.

Assistant State’s Attorney Kevin Horan testified that on March 1, 1986, he obtained court-reported statements from Harris, Hickombottom, and Weekly after informing these individuals of their Miranda rights.

Harris’ court-reported statement, which was read to and signed by defendant, was substantially similar to his oral statement given to Detective McGuire. His court-reported statement further disclosed the following: Harris was acquainted with Hickombottom for approximately two months and knew the victim only for a period of three to four days when Hickombottom inquired into the drug distribution plan. The victim dropped Hickombottom off at Harris’ apartment, but did not come in the apartment until approximately 6 p.m., at which time he returned and received $1,700 from Chavez for drugs. Upon leaving Harris’ apartment, the victim was attacked and returned to the apartment bleeding from his head. The victim stated that somebody had attempted to rob him with a toy gun.

Hickombottom subsequently called his friend “Do-Do” and asked him for a pistol. Do-Do never arrived with a gun, so Harris and Hickombottom left the apartment and drove around in the victim’s car looking for Do-Do. Prior to leaving the apartment, Hickombottom told Harris that he “wanted to stick [the victim] up [because] he was a coward” and that he would “give the money up without a fight.” After locating Do-Do, Hickombottom was given a .22 caliber revolver, and he and Harris proceeded to Hickombottom’s apartment, where they met Weekly.

Harris, Hickombottom and Weekly drove back to Harris’ apartment, located at 6028 South Wabash in Chicago. Hickombottom discussed with Weekly a plan to rob the victim of his money. As part of the plan, Hickombottom allowed Weekly to exit the vehicle at 61st and State Streets or 61st and Wabash Streets because Weekly was going to commit the actual stickup.

Hickombottom’s court-reported statement, which he signed following minor corrections, disclosed the following: Hickombottom stated that Weekly telephoned him to discuss the possibility of robbing the victim. Hickombottom stated that the victim “seemed like a coward,” and that Weekly should go ahead and rob him. Sometime later, Weekly telephoned Hickombottom at Harris’ apartment, at which time Hickombottom told Weekly that he saw the victim get some money from Chavez and that he was “probably on his way.” After the victim exited the apartment, he returned shortly thereafter, stating that somebody had attempted to rob him but that they were unsuccessful. Hickombottom and Harris left in the victim’s car and, after stopping at Hickombottom’s mother’s house, arrived at Hickombottom’s apartment. On the way to the apartment they met Do-Do, who gave Hickombottom a .22 caliber revolver. Hickombottom, in turn, gave the gun to Harris. At Hickombottom’s apartment he met Weekly. Weekly informed Hickombottom of his “tussle” with the victim.

Hickombottom, Harris and Weekly proceeded to the victim’s car and drove to Harris’ apartment. While in the car, Weekly told Hickombottom that “[h]e was going to try again *** just to show the [victim] that he was a coward.” Weekly exited the vehicle prior to reaching Harris’ apartment. Once inside the apartment, the victim requested Hickombottom to walk him downstairs. “When the victim got halfway to his car he said he was okay, at which time Weekly jump[ed] out, *** over the fence with the .22 caliber revolver in his hand and wearing a black hooded mask.” Weekly and the victim tussled. Hickombottom noticed the victim’s hands were in the air, heard a shot, and observed the victim grab his chest.

Approximately 30 minutes later, Weekly telephoned and told Hickombottom that “I got everything and, you know, I am at home.” After this telephone call, Hickombottom, Harris and Chavez went to Hickombottom’s apartment in the victim’s car. They left the victim’s car and then drove Chavez home in Harris’ car. They then proceeded to Weekly’s house and “split the money,” with Hickombottom receiving $830 and Weekly $860. Harris received $50 from Weekly and $60 from Hickombottom. Weekly gave the gun to Harris, who later, at Hickombottom’s apartment, put the gun under a television set. With a portion of the money, Hickombottom bought a video cassette recorder and stereo equipment.

Chavez testified at trial that the victim arrived with- a drug delivery on February 28, 1986, and that he gave the victim $1,750 as payment for the drugs. The victim left the apartment with the money, but returned shortly thereafter with blood on his head. Hickombottom and Harris left in the victim’s car and returned approximately one hour later. Hickombottom escorted the victim out of the apartment and came “up a few minutes later and said that [the victim] had been shot.” During the shooting Harris remained inside the apartment. Chavez, Hickombottom and Harris went to Hickombottom’s house in the victim’s car. Subsequently, Hickombottom and Harris drove Chavez home in Harris’ car.

Howard Reid testified that he had known Hickombottom for approximately 10 years, that he had known Weekly for approximately 8 to 10 years, and that he had been introduced to Harris through Hickombottom. On February 21, 1986, Hickombottom telephoned him and discussed with him the possibility of robbing a “Spanish guy” and the fact that it would be “easy” because the guy did not carry a gun. Reid told Hickombottom that he would have to speak to Weekly, and Hickombottom responded that Reid should forget it because Reid was scared.

Dr. Eupil Choi testified that the victim died of a gunshot wound to the chest and that he performed an autopsy, which disclosed a small abrasion on the victim’s forehead, but not any abrasion to the back of the victim’s head. Choi further testified that the abrasion on the victim’s forehead could have been caused by the victim falling facedown after being shot.

Harris testified on his own behalf and related the same testimony as set forth above except for the following variations: After the victim was attacked the first time, the victim stated that he needed a gun. Hickombottom and Harris left in the victim’s car, met Do-Do, who gave Hickombottom. a gun, and they returned to Hickombottom’s apartment, where Weekly was waiting. Weekly and Hickombottom went into a bedroom for approximately “ten [or] twenty minutes,” and all three individuals subsequently left together. While driving in the car, Hickombottom told Harris to give Weekly the gun and Harris complied. Harris was unable to hear the contents of a two-way conversation between Hickombottom and Weekly. Hickombottom then dropped Weekly off at a bus stop on 61st and State Streets, and Harris and Hickombottom proceeded to Harris’ apartment. Harris received $60 from Hickombottom as payment for using his apartment to sell drugs and $50 from Weekly as a loan. He was unaware of any plan to rob the victim until after the commission of the offense.

Hickombottom did not testify at trial.

Addressing first Harris’ contentions on appeal, Harris contends that he was not proved accountable beyond a reasonable doubt for felony murder (Ill. Rev. Stat. 1987, ch. 38, pars. 5—2, 9—1(a)(3), 10—2(a)). Pursuant to the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1—1 et seq.):

“[a] person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other •person in the planning or commission of the offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 5-2.)

Under this section, “the State must prove beyond a reasonable doubt that: (1) the defendant solicited, aided, abetted, agreed or attempted to aid another person in- the planning or commission of the offense; (2) this participation must have taken place either before or during the commission of the offense; and (3) it must have been with the concurrent, specific intent to promote or facilitate the commission of the offense.” (People v. Cooper (1987), 164 Ill. App. 3d 734, 738, 518 N.E.2d 260, 263.) Mere presence at the scene of a crime and knowledge that a crime is being committed is insufficient to establish guilt. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.) It is not necessary, however, that the State prove that the defendant participated in the commission of the act which constituted the offense. (People v. Tyler (1979), 78 Ill. 2d 193, 399 N.E.2d 975.) The State need only show that the accused attached himself to a group bent on illegal acts with knowledge of its design, thereby supporting the inference that he shared the common illegal purpose. (People v. Schlig (1983), 120 Ill. App. 3d 561, 458 N.E.2d 544; People v. Feierabend (1981), 98 Ill. App. 3d 731, 424 N.E.2d 765; People v. Wright (1976), 43 Ill. App. 3d 458, 357 N.E.2d 224.) Proof of a common design can be drawn from the circumstances surrounding the commission of the act. People v. Kelly (1980), 89 Ill. App. 3d 400, 411 N.E.2d 1012.

In determining the sufficiency of the evidence here, we are mindful that a reviewing court will not substitute its judgment for that of the jury on questions involving the weight of the evidence or the credibility of the witnesses and will not reverse a criminal conviction unless the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. (People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 461, 467; see also People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Upon judicial review, the evidence is considered in the light most favorable to the prosecution. Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.

Harris argues that he cannot be held accountable for the victim’s murder because he was a mere “bystander” to the crime, Hickombottom’s plan to rob the victim did not inculpate him, and no evidence exists to show that he knowingly aided, abetted or facilitated the armed robbery which led to the victim’s death. We find this argument unavailing as sufficient evidence exists here to establish Harris’ guilt.

Chavez testified that he and Harris were in Harris’ apartment during the shooting. Harris admitted in his pretrial statements that Hickombottom informed him that Weekly had attempted to rob the victim with a toy gun and that, while he and Hickombottom were at Hickombottom’s mother’s home, Hickombottom informed him that “they were going to stickup [the victim] for his money.” Defendants together obtained a .22 caliber revolver. Hickombottom gave the gun to Harris, who subsequently handed the gun to Weekly. Hickombottom requested Harris’ assistance in “sticking up” the victim, and Harris responded that the victim would have approximately $1,700 in his possession. Harris’ statements further disclosed that, before returning to his apartment on the night of the murder, he, Hickombottom and Weekly discussed the method in which Weekly was planning to stick up the victim. “[Hickombottom] was going to walk him downstairs and [Weekly] was going to run out and [tell] him to hold it and [Hickombottom] was going to run up toward his car.” Finally, Harris admitted that the plan was partially his idea and that he received $50 from Weekly and $60 from Hickombottom for his assistance.

Although Harris testified at trial that it was his belief that the search for the gun was for the victim’s protection and that he was unaware of the plan to rob the victim until after the commission of the offense, it was entirely proper for the jury to assess the credibility of Harris’ testimony and to weigh the evidence (see People v. Adams (1984), 129 Ill. App. 3d 202, 472 N.E.2d 135), and we will not substitute our judgment for that of the jury.

Based upon the above evidence, we find sufficient evidence to establish beyond a reasonable doubt that Harris aided and abetted Hickombottom and Weekly in participating in the plan prior to the commission of the robbery and that Harris had the concurrent, specific intent to facilitate the commission of the offense. (See Cooper, 164 Ill. App. 3d at 738, 518 N.E.2d at 263; see also Schlig, 120 Ill. App. 3d 561, 458 N.E.2d 544; Wright, 43 Ill. App. 3d 458, 357 N.E.2d 224.) The evidence supporting the above is not so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify reversal of Harris’ conviction. Harris attached himself to two individuals bent on illegal acts with knowledge of its design, and, therefore, an inference exists that he shared the common illegal purpose to rob the victim.

Equally without merit is Harris' contention that prejudicial error occurred during jury deliberations. During deliberations, the jury delivered the following note to the trial court:

“If a person is legally accountable for the armed robbery, can they be guilty of murder?”

The court responded to the note as follows:

“Please read the instruction that begins ‘[t]o sustain the charge of murder ....’ At the same time, read the instruction that begins '[a] person is legally responsible for the conduct of another person....’ ”

Defendant argues that he was denied a fair trial because the trial court improperly emphasized the murder and accountability instructions.

Our supreme court established in People v. Pierce (1974), 56 Ill. 2d 361, 365, 308 N.E.2d 577, 578-79, that it is within the trial court’s sound discretion to respond to inquiries from the jury. (See also People v. Heflin (1978), 71 Ill. 2d 525, 545, 376 N.E.2d 1367, 1375-76; People v. Queen (1974), 56 Ill. 2d 560, 565, 310 N.E.2d 166, 168-69; People v. Wade (1988), 167 Ill. App. 3d 921, 926, 522 N.E.2d 285, 288, rev’d on other grounds (1989), 131 Ill. 2d 370, 546 N.E.2d 553.) A decision within the trial court’s discretion will not be disturbed on appeal absent an abuse of discretion. Heflin, 71 Ill. 2d 525, 376 N.E.2d 1367; Wade, 167 Ill. App. 3d 921, 522 N.E.2d 285; People v. Glass (1984), 128 Ill. App. 3d 869, 471 N.E.2d 597; People v. Baggett (1983), 115 Ill. App. 3d 924, 450 N.E.2d 913; People v. Kelly (1980), 89 Ill. App. 3d 400, 411 N.E.2d 1012.

The record discloses that the jury was confused on the issues of felony murder and accountability. After ascertaining the nature of the jury’s confusion, the trial court sought to dispel the confusion by referring the jury to the murder and accountability instructions. The court was advised of the jury’s plight and it alleviated the confusion by providing the jury guidance as to matters properly the subject of instruction. The trial court did not abuse its discretion in referring the jury to these instructions.

Harris’ reliance on People v. Heflin (1978), 71 Ill. 2d 525, 376 N.E.2d 1367, is misplaced. Heflin involved a trial court’s refusal to grant a jury’s request that the court rephrase the definition in the jury instruction of “legal responsibility.” The trial judge refused to rephrase the definition on the ground that it would unnecessarily emphasize one segment of the instructions. The trial court’s decision was upheld by the supreme court as a proper exercise of discretion. (Heflin, 71 Ill. 2d at 545, 376 N.E.2d at 1375-76.) Unlike the circumstances presented in Heflin, the trial judge here merely made reference to specific instructions which would aid the jury in their quandary.

Harris next contends that he was denied a fair trial as a result of improper prosecutorial comments during closing argument. The first comment defendant urges as improper is the prosecutor’s remark that Harris was part of the plan to rob the victim. The prosecutor stated the following:

“Why is he giving [Weekly] a gun afterwards? After he gets the gun, why is he giving it to [Weekly] ***? Because it is part of the plan. ***

[Harris] is part of the plan. He says he is part of the plan.” The second statement in issue is the prosecutor’s comment that Harris was aware that his apartment was intended to be used as part of the plan to rob the victim. The prosecutor stated:

“You have heard how [Hickombottom] went back and forth, how he contacted people, how he approached [Harris] the day before to use his house to set up [the victim].”

The State contends that any prejudicial effect of the first comment is waived as a result of Harris’ failure to object to such comment at trial. Pursuant to our supreme court’s holding in People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, 1130-31, alleged errors must be objected to both at trial and in a written post-trial motion. Harris failed to object to the first comment above during trial. Moreover, the record discloses that Harris’ post-trial motion merely stated thát “[t]he Assistant State’s Attorney made prejudicial, inflammatory and erroneous statements in closing argument designed to prejudice the defendant’s right to a fair trial.” It is deficient in that it lacks any specificity to preserve the alleged errors for review. (See People v. Thomas (1983), 116 Ill. App. 3d 216, 219-20, 452 N.E.2d 77, 80.) Accordingly, we find that defendant has waived this issue on review. The plain error doctrine is inapplicable here, as the evidence is not closely balanced, nor is the comment of such magnitude that Harris was denied a fair trial. See People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091, 1093-94.

Even assuming arguendo that Harris did not waive any error pertaining to the first comment, Harris’ contention that he was denied a fair trial is without merit because the remarks were justified based upon the evidence. It is established that a prosecutor is given a great amount of latitude during closing argument, and the trial court’s determination of the propriety of closing argument will generally be followed absent a clear abuse of discretion. (People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 326-27; People v. Weather-spoon (1978), 63 Ill. App. 3d 315, 322, 379 N.E.2d 847, 852.) The prosecutor has a right to comment on the evidence and to draw all legitimate inferences deducible from the evidence, even if unfavorable to the defendant. Weatherspoon, 63 Ill. App. 3d at 322, 379 N.E.2d at 853.

Here the State’s comment that Harris was part of the plan was entirely proper based upon the evidence. Harris admitted in his pretrial statement to Assistant State’s Attorney Horan that it was part of the plan to drop Weekly off approximately one block from his apartment so that Weekly could rob the victim.

As to the State’s second comment, that “[Hickombottom] approached [Harris] the day before to use his house to set up [the victim],” we again find that Harris has waived this issue for appeal as his post-trial motion failed to set forth with specificity the alleged error. (See Enoch, 122 Ill. 2d at 187, 522 N.E.2d at 1130; Thomas, 116 Ill. App. 3d at 220, 452 N.E.2d at 80.) Waiver exists despite the fact that the comment was objected to at trial. Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.

Assuming arguendo that the second comment has not been waived, we nevertheless find that the State’s comment was proper based upon the evidence and all the legitimate inferences deducible therefrom. Harris’ pretrial statement disclosed that prior to the day of the incident he agreed to allow the victim to set up a drug distribution operation in his apartment. It can reasonably be inferred from the evidence that the drug distribution operation was part of the plan to rob the victim.

We now turn to Hickombottom’s contentions on appeal. Hickombottom first contends that the trial court’s refusal to dismiss a prospective juror for cause impaired his right to exercise all of his peremptory challenges, thereby constituting reversible error.

During preliminary voir dire, the following colloquy ensued between the trial judge and a prospective juror:

“THE COURT: Anybody here feel they would not be able to be fair and impartial jurors merely because of the charge itself without regards to anything more?
Yes.
THE JUROR: My father-.
THE COURT: Your name, please?
THE JUROR: Ruth Crofton. Your Honor, I think the fact of error would be very heavy.
I have not been trained to interpret human behavior, people telling in truth in my past. It’s been difficult for me to be judgmental.
THE COURT: We’ll talk about it.”
Subsequently, during voir dire the juror stated the following to the trial court:
“THE COURT: Now you have indicated an immediate family member or close friend has been a victim of a crime?
THE JUROR: My father was murdered.
THE COURT: How long ago was that?
THE JUROR: Nine years.
THE COURT: Was anyone ever apprehended?
THE JUROR: No.
THE COURT: There was no trial or anything of that nature. Would that fact in and of itself bring you to this court with any preconceived notion or feeling of ill will against Mr. Hickombottom?
THE JUROR: No.
THE COURT: Would it have any affect upon your ability to be fair and impartial in this case.
THE JUROR: It might.
THE COURT: In what way?
THE JUROR: I just doesn’t know if I can be fair.
THE COURT: Would you as best you possibly can try to put aside that event that happened and listen to this case with an open mind and judge this matter as best you possibly can without regard to what happened in the past.
It is a tough job. Do you think you could do it?
THE JUROR: No.
* * *
THE COURT: Would you be able to follow my instructions at the conclusion of the case?
THE JUROR: Yes.
THE COURT: Aside from what you discussed about your dad's death can you think of any reason you can’t be a fair, impartial juror?
THE JUROR: No.”

Hickombottom exercised a peremptory challenge and dismissed the juror.

The purpose of voir dire is to assure the selection of an impartial jury. (People v. Jackson (1977), 69 Ill. 2d 252, 260, 371 N.E.2d 602, 606; People v. Allen (1986), 148 Ill. App. 3d 200, 206, 498 N.E.2d 838, 842; People v. Chamness (1984), 129 Ill. App. 3d 871, 873, 473 N.E.2d 476, 478-79.) It is within the trial court’s broad discretion to conduct and manage voir dire (107 Ill. 2d R. 234) and to decide whether to grant a challenge for cause (People v. Pecina (1985), 132 Ill. App. 3d 948, 954, 477 N.E.2d 811, 815). Based upon the above dialogue, we hold that the trial judge abused his discretion in failing to dismiss the juror for cause.

The juror from the beginning of the trial harbored ill feelings as to the crime of murder as a result of her father’s murder. Although the juror indicated at one point her ability to follow the trial court’s instructions, she had previously stated that she could not put her father’s death aside in determining Hickombottom’s guilt or innocence and that the murder of her father “might” affect her ability to be fair and impartial in the instant case. Despite the existence of error, we must next determine whether it was reversible error.

Hickombottom argues that the error was reversible because he was forced to use a peremptory challenge to keep this potential juror from sitting on the jury. Our supreme court addressed this issue and has held that “[w]e can not reverse [a] judgment for errors committed in the lower court in overruling challenges for cause to jurors, even though [the] defendants exhausted their peremptory challenges unless it is further shown that an objectionable juror was forced upon them and sat upon the case after they had exhausted their peremptory challenges.” (Spies v. People (1887), 122 Ill. 1, 258, 12 N.E. 865, 989, accord United States v. Tweed (7th Cir. 1974), 503 F.2d 1127, 1129 (before reversible error can be assessed defendant must show that the use of his peremptory challenges prejudiced his case).) The issue was more recently addressed in People v. Washington (1982), 104 Ill. App. 3d 386, 432 N.E.2d 1020, where a defendant was forced to use a peremptory challenge to exclude a prospective juror. On review it was determined that the trial court abused its discretion in failing to dismiss the juror for cause, but further held that the error was waived because the defendant never indicated to the trial court that he was being forced to accept an objectionable juror, thereby allowing the trial court to cure the alleged error by exercising its inherent power to grant the defense an extra peremptory challenge. Washington, 104 Ill. App. 3d at 392, 432 N.E.2d at 1024-25.

Similarly situated, Hickombottom has not shown any prejudice here. Hickombottom never informed the trial court that he was being forced to accept an objectionable juror because of the trial court’s refusal to excuse the juror for cause. We therefore hold that the error in denying the challenge for cause was harmless.

We next address Harris’ and Hickombottom’s contentions that their sentences are excessive.

While Supreme Court Rule 615(b)(4) (107 Ill. R. 615(b)(4)) allows a reviewing court to reduce the sentence imposed by the trial court, this power should be exercised only when there has been an abuse of discretion and such action is required. (People v. Villa (1981), 93 Ill. App. 3d 196, 203, 416 N.E.2d 1226, 1232.) Moreover, it is well established that it is not the function of a reviewing court to serve as a sentencing court and that, absent a clear abuse of discretion by the trial court, a sentence will not be disturbed upon review. People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 547; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884; see also People v. Lambrechts (1977), 69 Ill. 2d 544, 559, 372 N.E.2d 641.

The Illinois Constitution requires that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11; see also People v. Gibbs (1977), 49 Ill. App. 3d 644, 648, 364 N.E.2d 491, 494.) A proper balance must be struck between the protection of society and the rehabilitation of the defendant. (Cox, 82 Ill. 2d at 280, 412 N.E.2d at 547.) A judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case and such a judgment depends upon many factors, including defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, prior criminal history and age. Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.

We apply the above-established principles here. Harris argues the trial court “lost sight of the goal of rehabilitation and instead emphasized the need for retribution during sentencing.” The offense of murder mandates a statutory prison term of not less than 20 years and not more than 40 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8— 1(1).) Harris’ sentence, which is five years over the minimum sentence of 20 years, is clearly within the statutory limits prescribed by the legislature. Furthermore, the record discloses that sentence was imposed only after the trial court considered all of the factors presented in aggravation and mitigation of the offense, as mandated by the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, pars. 1005—5—3.1, 1005—5—3.2). We therefore hold that the trial court did not abuse its discretion in sentencing Harris to 25 years’ imprisonment, as the sentence imposed is not at great variance with the spirit and purpose of the law or greatly disproportionate to the offense. See People v. Hayes (1979), 70 Ill. App. 3d 811, 831, 388 N.E.2d 818, 833.

Hickombottom contends that his 40-year sentence is excessive and unfairly disparate to the 36-year sentence received by Weekly.

The record reveals that the trial judge was fully aware of all of the factors presented in aggravation and mitigation of the offense. Hickombottom had prior convictions for voluntary manslaughter, aggravated battery and felony theft. In considering both the protection of society and Hickombottom’s rehabilitative potential, the trial court properly determined that, under the facts presented here, Hickombottom’s sentence should be the maximum allowed under the corrections code.

Hickombottom’s 40-year sentence is also not unfairly disparate to the 36-year sentence received by Weekly. Although a reviewing court must not defend an arbitrary and unreasonable disparity in sentences between similarly situated codefendants, it should not disturb a sentence where the disparity is warranted by differences in the nature and extent of the defendants’ participation in the offense, defendants’ relative backgrounds, and defendants’ potential for rehabilitation. People v. Godinez (1982), 91 Ill. 2d 47, 434 N.E.2d 1121; People v. Spicer (1987), 158 Ill. App. 3d 699, 511 N.E.2d 235.

The record discloses that the potential. for rehabilitation is much greater for Weekly than it is for Hickombottom. As set forth above, Hickombottom’s past convictions include voluntary manslaughter, aggravated battery and felony theft, whereas Weekly’s prior criminal history consisted of an aggravated assault conviction. Furthermore, the trial court found that Hickombottom masterminded the crime and stated that “but for Mr. Hickombottom, this crime would never have taken place. He was the one that was the planner, he was the one that went out and found Mr. Weekly. He was the one that went out and found Mr. Harris.”

As to Hickombottom’s final argument that the trial court improperly concluded that he was a gang member and used this as a factor in determining his sentence, we believe that the trial court was justified in relying on this factor since the presentence investigation report indicated at one time “[Hickombottom] had been shot in the stomach *** by a rival gang.” (Emphasis added.) Moreover, prior gang activity may be considered in sentencing a defendant. People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285.

For the foregoing reasons, we affirm Harris’ and Hickombottom’s convictions and sentences.

Affirmed.

O’CONNOR and MANNING, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD FOLLINS, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2443
    Opinion filed March 30, 1990.

      Michael J. Pelletier and Janice Lynn Triptow, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and William B. Schiller, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Edward Follins (defendant) appeals his conviction by a jury of robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—1) and four-year sentence to the Illinois Department of Corrections. He contends that (1) he was denied his sixth amendment right to effective assistance of counsel; (2) he was denied due process by the trial court’s failure to hold an evidentiary hearing on his post-trial motion allegations of ineffective assistance of counsel; (3) the trial court erred in denying his motion to quash his arrest and suppress its fruits; and (4) the trial court erred in refusing to tender certain jury instructions. We affirm.

In the afternoon of April 25, 1986, as Steven Hawkins, an Indiana resident, was walking in the vicinity of Clark and Wellington Streets in Chicago, two individuals approached him and absconded with his wallet and $80. Defendant was arrested shortly thereafter and charged with robbery in connection with the incident.

Prior to his trial, defendant filed a motion to quash his arrest on the ground that the arresting officer lacked probable cause to arrest him. The trial court denied the motion after hearing the following evidence.

The victim testified that on April 25, 1986, he was walking along a side street in Chicago when two individuals approached him from behind and demanded his wallet. He refused, and a struggle ensued between the victim and one of the individuals, resulting in the victim lying on the ground bleeding and the offenders absconding with the victim’s wallet and $80. The incident occurred within two minutes, and the police arrived two minutes thereafter. Upon the officers’ arrival, the victim stated that his wallet and $80 had been taken and described the offenders. Both were in their mid-20s. The offender who struggled with the victim was wearing a blue jogging suit with white piping. Although the victim was uncertain as to the offender’s height, he estimated that the offender approximated the officer’s height and was “a little heavier.” The second individual was short and wore a white-type T-shirt, jogging pants, and had a band-aid on his knee. Following this 30-second conversation, the victim pointed in the direction that each offender ran and the officers departed. The officers returned five minutes later with an individual.

Officer Angelo Falbo of the Chicago police department testified that on April 25, 1986, he and his partner responded to a radio broadcast and within 30 seconds reached the intersection of Wellington and Clark Streets. There, they observed the victim bleeding from the mouth and with blood all over his shirt. The victim stated that his wallet and an unspecified amount of money were taken. Based upon the victim’s description of the offenders, Falbo made the following radio broadcast:

“Wanted for robbery which occurred at the area of Wellington and Clark, two male blacks, number one, 5 feet 9 inches, in his mid-20’s, about 170 pounds, wearing a blue jogging suit. Number two was a male black approximately 5 feet 9 inches, 170 pounds, wearing a white shirt, white pants with a white Ace bandage around his knee. One subject proceeded westbound on Wellington, and one subject proceeded northbound on Clark.”

Approximately five minutes later, Falbo heard through a radio broadcast that Officer James Farah had the “subjects [sic] stopped” who matched the description of the “wanted offenders [sic].” Falbo and his partner proceeded to 2900 Sheffield Avenue, and Falbo thereafter accompanied defendant back to the scene of the incident.

Farah testified that he was monitoring a traffic light at Sheffield and Wellington Streets when he heard a radio broadcast of a strong-armed robbery committed by two black male offenders, described as 5 feet 9 inches in height and weighing 170 pounds, one individual having a bandage on his knee and wearing a white shirt and white pants and the other individual wearing a blue sweat suit. As Farah proceeded southbound on Sheffield, he observed an individual wearing a blue jogging suit, whom he estimated to be 5 feet 9 inches in height and weighing 170 pounds and who was later identified as defendant.

Farah believed defendant “would be a good subject to be interviewed and arrested on this charge.” He approached defendant and inquired into his destination. Defendant responded that he was looking for Wrigley Field. Farah then “patted down” defendant’s outer garments but did not recover anything. Defendant was not “free to leave.”

Farah subsequently radioed for assistance, handcuffed defendant, and placed him under arrest. He also read him his Miranda rights and assisted him into the squad car. Two minutes afterwards, Falbo arrived and the officers transported defendant to the scene of the incident, where he was identified by the victim.

On the day of trial, the trial court denied defendant’s pro se motion for substitution of counsel, wherein he claimed that his appointed public defender did not adequately confer with him and failed to introduce favorable evidence at his motion to quash hearing. The following evidence was then introduced at defendant’s trial.

The victim testified that while he was walking down a side street parallel to Clark Street in Chicago, he felt an individual place his hand on his back pocket. When the victim turned around, he stood face-to-face with, and four or five inches from, an individual whom he identified in court as defendant, while another individual simultaneously had his hand on his back pocket. Defendant demanded his wallet, threatening to kill him. The victim refused, and defendant struck him in the mouth. The victim grabbed defendant’s blue jogging shirt, and the two fell to the ground, causing the victim’s wallet and money, consisting of approximately $70 or $80, to scatter on the ground. At this time, the victim observed the second individual, who was wearing a white T-shirt, white running pants and had an ace bandage on his knee. Defendant and the second individual grabbed the victim’s money and wallet and ran. The victim chased them to Clark Street, where the two offenders “split off” in different directions.

Two minutes later, the victim gave a description of the offenders to two plainclothes police officers who had arrived at Clark Street. The victim’s testimony as to the description was similar to his testimony at the pretrial hearing. In addition to describing the offenders, the victim pointed in the direction the offenders fled. One of the officers stopped an individual across the street from the victim, who was wearing shorts, a white shirt and a reflector jacket, but the victim told them that the individual was not the offender. The officer later returned with defendant, and the victim identified defendant, while defendant stood alongside the squad car, as the person who struck him in the mouth and took his money.

On cross-examination, the victim admitted he was upset, angry and hurt at the time. He further admitted that he did not mention at defendant’s preliminary hearing that the offenders absconded with his money, but stated that he testified only that his “pocket tore and [his] wallet fell out. Apparently it was gone. I never seen [sic] it again.” He also admitted that he testified that he told the officers on the scene that he was not certain of the offender’s height.

Falbo testified that, during his conversation with the victim, the victim stated that the offender had no facial hair. He further testified that after his 30-second conversation with the victim at the scene, he proceeded west on Wellington Street in his squad car, at which time he made a radio broadcast of the offenders’ descriptions, that testimony being consistent with his testimony at the pretrial hearing, except that he made no mention of the offenders’ ages.

As Falbo proceeded west on Wellington Street, he heard a police radio broadcast that an officer in a “beat” car four blocks away planned to stop an individual who matched the earlier broadcast description. When Falbo reached the location, he observed Officer Farah with defendant, who was handcuffed in the back seat of Farah’s squad car. Falbo and Farah proceeded to the victim’s location, where the victim identified defendant as the offender while defendant stood handcuffed outside a squad car approximately V-k feet from the victim. Falbo conducted a search of defendant at the 19th District police station and inventoried a wallet containing defendant’s identification and $43.

Farah testified that he radioed for assistance when he observed defendant — who matched the broadcast description of an individual approximately 5 feet 9 inches in height, weighing 170 pounds, and wearing a blue jogging suit — walking in an opposite direction from where the robbery occurred. Upon Farah’s inquiries, defendant stated that he was going to Wrigley Field, which was located in the opposite direction defendant was walking and approximately one mile north. Farah then placed defendant under arrest, handcuffed him, conducted a “pat down” search and read defendant his Miranda rights. When they arrived at the victim’s location, Farah escorted defendant from the squad car while he was still handcuffed. Farah observed the victim point at defendant and nod his head.

Defendant testified that after waiting for baseballs, drinking beers, and listening to music outside Cubs park until 2:30 p.m., he left to return home. As he walked down Sheffield Avenue, police drove up, asked him where he was coming from and for his identification, and told him to “get in.” Defendant obliged, and they proceeded to the intersection of Clark and Wellington Streets, where he first observed the victim.

Defendant further testified that at the time of trial he was 33 years old and that on April 25, he was almost six feet tall, weighed 180 pounds, and was wearing a blue jogging suit with white striping and some light blue jogging pants. He also identified a photograph of himself taken on April 26, 1986, at Cook County jail, depicting a small mustache.

Following defendant’s conviction of robbery but before his sentencing, defendant filed a pro se motion for a new trial and substitution of counsel on the grounds that he was not permitted to testify accurately or introduce his clothes as evidence. Without ruling on defendant’s motion, the court, on March 5, 1987, allowed defendant’s trial counsel leave to withdraw and permitted the substitution of counsel. On July 5, 1987, defendant’s new counsel filed an amended motion for a new trial, and the trial court denied the motion following oral arguments.

On appeal, defendant first contends that he was denied his sixth amendment right to effective assistance of counsel by his counsel’s failure to file a motion to suppress the out-of-court showup identification. Under the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, as adopted in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, a defendant must satisfy two requirements to establish a denial of his sixth amendment right to effective legal representation: (1) that his counsel’s performance fell well below the objective standard of reasonableness and (2) that, but for his counsel’s errors, the result of the proceeding would have been different.

Illinois case law illustrates that whether defense counsel’s failure to make a motion to suppress will be deemed ineffective legal representation depends on the circumstances of each case. (People v. Fernandez (1987), 162 Ill. App. 3d 981, 516 N.E.2d 366; People v. Calderon (1981), 101 Ill. App. 3d 469, 428 N.E.2d 571.) Courts have refused to find ineffective assistance of counsel where the decision not to file a motion may be viewed as a tactical decision (e.g., People v. Taylor (1982), 110 Ill. App. 3d 112, 116, 441 N.E.2d 1231, 1233; People v. Goins (1981), 103 Ill. App. 3d 596, 600, 431 N.E.2d 1069, 1072) or where defendant fails to show a reasonable probability that the outcome would have been different had the motion been filed (e.g., People v. Winchel (1987), 159 Ill. App. 3d 892, 913, 512 N.E.2d 1298, 1314; People v. Byrd (1986), 139 Ill. App. 3d 859, 864, 487 N.E.2d 1275, 1279).

Defendant asserts that counsel’s decision not to file the motion cannot be viewed as a tactical decision or as not affecting the trial’s outcome because the record demonstrates the likelihood of the successful suppression of the only evidence clearly implicating the defendant as the perpetrator of the crime charged. In response, the State argues that defense counsel’s decision not to file the motion to suppress was not error because the showup identification was entirely proper.

An out-of-court identification will be suppressed only where both the identification is unnecessarily suggestive and such suggestiveness gives rise to a substantial likelihood of misidentification. (Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375.) A subsequent in-court identification will be suppressed where the suggestiveness gives rise to a substantial likelihood of “irreparable” misidentification. Neil, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375.

The suggestiveness requirement involves an inquiry into both the suggestiveness of the identification and the necessity of the suggestive identification. (Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.) Courts have recognized the suggestiveness of one-on-one showups and widely condemn them. (Stovall, 388 U.S. at 302, 18 L. Ed. 2d at 1206, 87 S. Ct. at 1972; People v. Gardner (1966), 35 Ill. 2d 564, 572, 221 N.E.2d 232, 236.) Courts, however, have found suggestive identifications not to be unnecessarily suggestive in certain circumstances. The Stovall Court found an immediate, one-on-one hospital confrontation not to be unnecessarily suggestive where it was uncertain how long the victim might live, the victim could not visit the jail, and where the victim was the only person who could have exonerated the suspect. (Stovall, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.) In Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967, the Court found that resort to a photographic array was justified where a serious felony had been committed, where the perpetrators were at large, and where it was essential to determine whether the law enforcement personnel were “on the right track” so that they could deploy their police forces.

Our supreme court has indicated a willingness to justify showup identification procedures in ‘ ‘fleeing-offender’ ’ situations in order to facilitate the immediate release of an innocent suspect, as well as to enable the police to resume their search for the fleeing offender. In People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, the court rejected the defense contention that an unnecessarily suggestive identification resulted where a witness viewed a suspect handcuffed in a squad car shortly after a robbery. It found the identification was justified on the bases of both the witness’ opportunity to view the robber and the facilitation of the police search. Manion, 67 Ill. 2d at 570, 367 N.E.2d at 1316; see also People v. McKinley (1977), 69 Ill. 2d 145, 370 N.E.2d 1040; People v. Higgins (1972), 50 Ill. 2d 221, 278 N.E.2d 68.

Defendant insists here that the court’s “probable cause” ruling diminishes the element of the need to facilitate the search. We do not believe the fact that the officers may have had probable cause to arrest the offender diminishes the element of the need to facilitate the search, as the probable cause determination rested upon a broadcast description of the offender and the showup would enable police to correct any error in judgment and immediately resume the search for the fleeing offender.

Defendant further asserts that the victim gave only a very general description of the offenders and did not have a clear opportunity to observe the offender during the two-minute occurrence in which the victim was injured. Contrary to defendant’s assertions, the record discloses that the witness had a clear opportunity to view the offender. The victim, in close proximity to the offender, in the daylight hours, had a face-to-face confrontation with the offender, during which time the offender spoke with and struggled with the victim. The victim’s description of the offender also included a fairly detailed description of his apparel. Thus, under the circumstances present here, where the police were in pursuit of the offender within minutes of the robbery and where the victim had a clear opportunity to view the offender, we hold that the showup was not unnecessarily suggestive.

Moreover, assuming the lineup was unnecessarily suggestive for purposes of applying the second part of the constitutional analysis, the record supports a finding that any suggestiveness in the lineup did not affect the reliability of the out-of-court identification by giving rise to a “substantial likelihood of misidentification.” In determining the reliability of the identification under this standard, courts must consider the totality of the circumstances and are guided by the following factors: the opportunity of the witness to view the criminal act, the witness’ degree of attention, the accuracy of the prior description of the offender, the level of certainty demonstrated by the witness at the confrontation, and the time between the crime and the confrontation. Manson v. Brathwaite (1977), 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243, 2253.

Applying these factors to the circumstances here, defendant points out that the victim was injured and upset at the time of the identification, that he gave no distinguishing features in his description to police, and that he was uncertain of the offender’s height. As previously stated, the victim had an opportunity to view the offender in the daylight hours while he was face-to-face with, and in close proximity to, the offender. The victim also gave a fairly accurate description of the offender’s height, weight, and particulars of his clothing, including the detail of a “white piping” on the offender’s blue jogging suit. Additionally, the victim evidenced a high level of certainty in identifying defendant, as indicated by his hasty rejection of another suspect as being the offender and prompt identification of defendant. Finally, the identification occurred within minutes following the robbery. Based upon the totality of the circumstances, we believe the trial court would have found that any suggestiveness in the identification did not give rise to a substantial likelihood of misidentification.

Because the record demonstrates the futility of a motion to suppress the identification evidence here, defendant has failed in his burden of establishing that counsel’s performance fell well below the objective standard of reasonableness and that, but for counsel’s errors, the result of the proceeding would have been different.

Defendant next contends that he was denied due process when the trial court failed to conduct an evidentiary hearing on his post-trial motion allegations raising matters of ineffective assistance of counsel that went beyond the record. In denying substituted counsel’s amended motion for a new trial alleging defendant’s former counsel’s failure to introduce certain evidence, the trial court stated that a post-trial motion was not the appropriate vehicle, in the absence of affidavits or other evidence, to reach defendant’s claims as to matters outside the record.

Illinois case law recognizes that a defendant may base his motion for a new trial on matters outside the record. (See People v. Morrison (1985), 137 Ill. App. 3d 171, 484 N.E.2d 329; People v. Jackson (1981), 100 Ill. App. 3d 318, 426 N.E.2d 1132; People v. Gamboa (1975), 30 Ill. App. 3d 242, 332 N.E.2d 543; People v. Dzielski (1970), 130 Ill. App. 2d 581, 264 N.E.2d 426.) A trial court, however, is not required to hold an evidentiary hearing as to such matters where the allegations are insufficient to establish a basis for a new trial. (Jackson, 100 Ill. App. 3d at 325, 426 N.E.2d at 1138; Morrison, 137 Ill. App. 3d at 182, 484 N.E.2d at 338.) A trial court’s decision to deny an ineffective assistance claim without a hearing has also been upheld on the ground that the defendant failed to attach to his motion a sworn affidavit as to matters outside the record. People v. Miles (1988), 176 Ill. App. 3d 758, 773, 531 N.E.2d 891, 899; People v. Brandon (1987), 157 Ill. App. 3d 835, 845, 510 N.E.2d 1005, 1010.

The State argues here that the trial court properly denied defendant’s motion for a new trial without an evidentiary hearing because it involved allegations outside the record which were not supported by affidavits. Defendant urges that he sufficiently complied with the affidavit requirement by his and his counsel’s notarized signatures on his new trial motion. We need not determine whether defendant was required to file a sworn affidavit here or whether the notarized signatures sufficiently complied with the affidavit requirement because defendant’s allegations are insufficient to establish a basis for a new trial under the standard for evaluating counsel’s effectiveness set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

Defendant’s amended motion raised the following matters outside the record which related to his ineffective assistance claim: counsel’s failure to subpoena “911 dispatch tapes” from the Chicago police department; counsel’s failure to introduce defendant’s jogging suit; counsel’s failure to allow defendant to testify that the officers had stopped him prior to his arrest but released him when a radio dispatch gave a description differing from defendant’s characteristics; and counsel’s failure to introduce defendant’s testimony as to his height and facial appearance at the hearing on defendant’s motion to quash his arrest. This evidence, defendant asserts, would have affected the outcome of the probable cause determination, resulting in the suppression of the identification evidence as its fruits, as well as the outcome of the trial by providing a reasonable doubt as to defendant’s guilt.

A review of defendant’s allegations leads us to conclude that the evidence would not have affected the trial’s outcome and that counsel’s performance with regard to the allegations was not unreasonable. Defendant’s suggestion that the “911 dispatch tapes” would have conflicted with the officers’ testimony as to the radio broadcast description is mere speculation. Defendant fails to indicate how he would benefit from the introduction of his jogging suit where a picture of defendant wearing the jogging suit at his arrest was adduced at trial. The discrepancies in the victim’s description of the offender and defendant’s facial characteristics were not that significant to affect the outcome of the probable cause determination, and counsel’s decision not to have defendant testify at the motion to suppress hearing may be viewed as a tactical decision. Finally, counsel’s decision not to have defendant testify as to his allegations that he had previously been stopped and released by the arresting officer and that he heard a radio dispatch giving a description differing from his characteristics may be viewed as a strategic decision in view of the incredibility of the allegations. Not only are defendant’s assertions in this regard contrary to the testimony of three other State witnesses, the assertions are also illogical in that the officers would release defendant because he did not match the broadcast description but then for some reason return and arrest him.

Defendant next contends that the trial court erred in. finding the officers had probable cause to arrest him and denying his motion to quash the arrest and suppress its fruits. The State initially argues that defendant has waived this issue by failing to allege the error with specificity in his post-trial motion. Although defendant failed to allege the issue with the required specificity in his post-trial motion, the constitutional exception to the waiver rule applies here. See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Turning to the merits of defendant’s claim, to meet its burden of establishing probable cause, the State must show that the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable causation into believing that an offense has been committed and that the arrestee has committed the offense. (People v. Robinson (1976), 62 Ill. 2d 273, 342 N.E.2d 356.) The probable cause determination is a commonsense, practical question to be determined by the totality of the circumstances (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317), and the trial court’s finding of probable cause will not be disturbed on review unless manifestly erroneous (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869; People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280).

Defendant, directing our attention to In re Woods (1974), 20 Ill. App. 3d 641, 314 N.E.2d 606, argues that the trial court erred in its probable cause determination because the arrest was based solely upon the fact that defendant, who matched a very general description of the offender, was in the vicinity of the crime shortly after the crime occurred. In Woods, the court stated that a general description is insufficient to provide probable cause unless it is supported by other relative facts and circumstances known to the arresting officer. (Woods, 20 Ill. App. 3d at 646, 314 N.E.2d at 609.) The victim, in Woods, related to the arresting officer her assailant’s height, age, weight and the fact that he wore a long, dark red maxi-coat. The court found the maxi-coat to be of little value in view of the officer’s testimony that the coat was not an unusual piece of apparel for a black youth in that area. The only other supporting testimony mentioned by the court was the fact that the defendant was in the vicinity of the crime, which it found to be negated by the fact that he was stopped as he was entering his home.

Unlike Woods, there is no indication here that blue jogging suits are commonly worn in the area. In any event, the description was supported by other facts and circumstances. The arresting officer knew a robbery had been committed a few minutes earlier and within blocks of where he observed defendant. Defendant matched the broadcast description of the offender and was walking in the opposite direction of the crime vicinity. When questioned by the officer, defendant stated his destination was Wrigley Field, even though he was walking in the opposite direction. Under these facts and circumstances, the trial court’s probable cause finding is not manifestly erroneous.

A separate ground also exists for upholding the trial court’s ruling. In People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605, our supreme court examined the Federal cases in the fourth amendment area and concluded that under certain circumstances, other than “a full-blown arrest,” a seizure is justified even though the officers are acting on somewhat less than probable cause. After analyzing the United States Supreme Court holdings in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, and Michigan v. Summers (1981), 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587, the court concluded that, even absent probable cause, the transportation of a suspect for purposes of a showup when the officer is conducting a field investigation immediately after the commission of a crime and when the victim, a short distance away, could confirm or deny the identification of the suspect may not be an unreasonable seizure under the fourth amendment. It reasoned that “a short period of detention was only minimally intrusive when compared to the benefit of immediate investigation.” (Lippert, 89 Ill. 2d at 183, 432 N.E.2d at 610; see also People v. Garza (1984), 125 Ill. App. 3d 182, 465 N.E.2d 595; People v. Kincy (1982), 106 Ill. App. 3d 250, 435 N.E.2d 831.) Under the circumstances presented here, we believe that transporting defendant a few blocks to the scene of the crime for a showup was minimally intrusive when compared to the benefit of the immediate investigation.

Finally, defendant contends that the trial court committed reversible error in refusing to tender his three non-Illinois Pattern Jury Instructions on the issue of identification. Defendant failed to raise this issue in his post-trial motion. Because we find none of the exceptions set forth in People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, to be applicable here, we hold that defendant has waived our review of this issue.

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

Affirmed.

CAMPBELL and MANNING, JJ., concur.


author: JUSTICE MANNING JUSTICE CAMPBELL,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERROL WILSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2488
    Opinion filed March 30, 1990.

      CAMPBELL, J., dissenting.
    Charles K. Piet and Kenneth Anspach, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and James M. Sanford, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Following a bench trial, the defendant, Errol Wilson, was convicted of the offense of reckless homicide and sentenced to three years’ imprisonment. Defendant appeals both from the conviction and the sentence imposed.

Defendant argues on appeal (1) that the indictment charging him with the offense of reckless homicide was defective since it did not set forth sufficient facts to enable him to prepare a defense; (2) the trial court erred in allowing a victim impact statement to be read into the record at his sentencing hearing since this violated his constitutional rights to due process and equal protection; (3) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (4) the trial court erred in denying his motion for a directed finding at the close of the State’s case; and (5) the trial court abused its discretion in sentencing him to a three-year term of imprisonment and the denial of a sentence of probation was arbitrary.

At trial, police officer Mark Weidner testified that on January 10, 1986, he was on patrol in a marked squad car in Lincolnwood, Illinois. Weidner assisted Officer Lamantia, who had received a radio call concerning a personal injury auto accident on the 6500 block of Cicero Avenue. At that location Cicero Avenue is six lanes wide, with two traffic lanes and one parking lane in each direction. Weidner observed that the road conditions were dry and clear. Weidner stated that he observed two cars with heavy front end damage in the far right southbound lane. He exited his squad car to aid anyone who might have been injured and observed two elderly people, John and Aida Burke, in one of the automobiles. John Burke was bleeding from an injury to his head, and Weidner stated that he placed a bandage on the wound. He then went around and forced the passenger door open. Aida Burke was not breathing, and Weidner and Lamantia pulled her from the car and performed cardiopulmonary resuscitation on her. The paramedics arrived and took over the care of Aida Burke.

Weidner first observed the defendant next to his automobile lying on the grass. Lamantia and a police sergeant at the scene instructed Weidner to accompany defendant to the hospital because he was being arrested for driving under the influence of alcohol. At the hospital, Weidner overheard defendant state to the emergency room physician that he had consumed a couple of beers earlier.

Officer Lamantia testified and corroborated Officer Weidner’s testimony. In addition, Lamantia testified that, when he approached defendant’s car, the defendant was bleeding from a head wound and Lamantia applied a gauze pad to defendant’s head. He stated there was a strong odor of alcohol on defendant’s breath. He further stated that he observed skid marks behind the Burkes’ car; however, there were no skid marks behind defendant’s car. About 30 to 40 minutes after leaving the scene, Lamantia proceeded to the Lincolnwood auto pound, where the two automobiles involved in the accident had been towed, in order to inventory personal property in the vehicles. While making an inventory of the property in the defendant’s car, Lamantia discovered a partially full vodka bottle.

Dr. Howard Croft testified that he was the emergency room physician at Skokie Valley Hospital and that he pronounced Aida Burke dead at 3:52 p.m. on January 10, 1986. The cause of death was blunt trauma. John Burke survived the accident and was treated for his injuries.

Margo Gestar testified that she was driving southbound on Cicero Avenue on January 10, 1986, behind the Burkes’ automobile. She observed the defendant’s automobile, which had been traveling northbound, cross the center line and one southbound lane before striking the Burkes’ car in the outside, southbound lane. She stated that she stopped and walked over to the accident site, where an elderly couple was in one car, and a man, whom she identified as defendant, was lying in the grass by the other car.

Gerald Burger testified that he had been driving northbound on Cicero Avenue at approximately 3 p.m. on January 10, 1986, when he observed defendant’s automobile to his right and somewhat behind him. He stated he saw defendant’s car cut in front of him before crossing into oncoming traffic and hitting the Burkes’ automobile. As the defendant drove past Burger, Burger stated that the defendant was slumped over the wheel of his automobile, apparently unconscious. Burger testified that he pulled over and approached defendant’s automobile, where he saw the defendant lying on the ground, struggling and in pain.

Because our resolution of the issue involving the sufficiency of the evidence is dispositive of this appeal, we will address only those points which relate to that issue.

Defendant contends that the evidence introduced at trial was insufficient to support a conviction for the offense of reckless homicide, and therefore, he was not proven guilty beyond a reasonable doubt. The State maintains that the defendant was proven guilty beyond a reasonable doubt of reckless homicide where the evidence established that defendant had a strong odor of alcohol on his breath and an open bottle of vodka was found in his car at the auto pound subsequent to his arrest.

There are three elements which must be proven beyond a reasonable doubt in order to sustain a conviction for reckless homicide: (1) that the defendant was operating a motor vehicle; (2) that an individual was killed; and (3) that the defendant acted recklessly. (Ill. Rev. Stat. 1987, ch. 38, par. 9—3; People v. Bonzi (1978), 65 Ill. App. 3d 927, 931, 382 N.E.2d 1300.) In the case at bar, the defendant does not dispute that there was satisfactory proof as to the first two elements and admits that he did operate a motor vehicle which collided with another, resulting in the death of Aida Burke. However, the defendant does dispute that the State proved he performed any acts recklessly.

The term “reckless” is defined in the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 4—6) as follows:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. An act performed recklessly is performed wantonly, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.”

This court has held that in order for a guilty verdict of reckless homicide to stand, the record must clearly reveal that the defendant knew of the danger of collision and recklessly or wantonly collided with the decedent without using those means reasonable and at his command to prevent the accident. (People v. Hawn (1981), 99 Ill. App. 3d 334, 338, 425 N.E.2d 1024.) In People v. Hawn the court observed:

“It is necessary, as shown in the above statutory definition, for the defendant consciously to disregard a substantial and unjustifiable risk so that there is a gross deviation from the standard of care which a reasonable person would exercise.” Hawn, 99 Ill. App. 3d at 338.

In the case at bar, the only evidence regarding defendant’s conduct prior to the collision established that immediately prior to the collision the defendant was observed slumped over the steering wheel of his vehicle, appearing to be unconscious. Subsequent to the collision, an odor of alcohol was detected on his breath and a police officer overheard defendant tell an emergency room physician that he had consumed a couple of beers earlier. Also, sometime after his car was towed to an auto pound, a partially filled vodka bottle was found in his vehicle. The State argues that this evidence of defendant’s state of intoxication is probative of recklessness. However, while proof of intoxication is relevant, this court has held that the mere evidence of a nominal consumption of alcohol is inadmissible and its admission constitutes reversible error. People v. Gosse (1983), 119 Ill. App. 3d 733, 737, 457 N.E.2d 129.

In People v. Gosse, the defendant was charged with reckless conduct. At trial, evidence was introduced that the defendant had consumed a quantity of alcohol and cannabis. This court held that because there was no evidence supporting an inference that the consumption of the alcohol and cannabis in any way affected the mental or physical ability of the defendant, the evidence was insufficient to sustain a conviction. In reversing the conviction, the court stated:

“We favor a rule that would preclude the State from offering evidence of drinking alcoholic beverages or the use of narcotics without further evidence tying these facts to an inference of intoxication, i.e., that the defendant’s mental or physical faculties were impaired as a result of this consumption. We deem evidence of a nominal consumption of alcohol and cannabis without more or any showing that the defendant’s mental and physical abilities were impaired is so inflammatory as to constitute reversible error.” Gosse, 119 Ill. App. 3d at 737.

Our courts have held that while improperly driving a motor vehicle while intoxicated may be reckless conduct which will convert what otherwise would be ordinary negligence into criminal conduct, the record must show that the State has proved beyond a reasonable doubt that defendant was intoxicated and that the intoxication was the proximate cause of the collision. (See People v. Chambers (1972), 8 Ill. App. 3d 430, 289 N.E.2d 476, aff’d sub nom. People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447.) In the instant case, no evidence was presented that defendant was intoxicated. The State provided no evidence that any overt acts of defendant showed a state of intoxication. They presented no opinion evidence and no scientific evidence of intoxication. The only testimony that relates to the issue of intoxication is Officer Lamantia’s testimony of a strong odor of alcohol and an overheard conversation that defendant stated he had earlier consumed two beers. The State also makes much of a partially filled bottle of vodka discovered sometime later in defendant’s car at the auto pound and the fact that no skid marks were behind defendant’s car.

Under the facts of this case we believe the presence of the partially filled vodka bottle has not been sufficiently linked to the defendant’s physical state and is, therefore, not relevant. In light of the evidence that defendant appeared to be unconscious when his vehicle crossed into oncoming traffic, this would explain the lack of skid marks. It would be unreasonable to expect an unconscious person to brake an out-of-control vehicle.

The trial court directed a finding in defendant’s favor as to the charge of driving under the influence but at the same time denied a directed finding on the reckless homicide charge. The trial court specifically found that there was insufficient evidence to prove intoxication. Under the holding of People v. Gosse, the testimony in this case that defendant admitted consuming a couple of beers earlier in the day and the presence of an open bottle of alcohol in the automobile at the auto pound are not proof that the defendant was in an intoxicated condition. Furthermore, without further evidence linking these facts to an inference of intoxication, the testimony should not have been admitted. The State contends that the evidence was sufficient to establish that the defendant had consumed alcohol, and then drove an automobile, which itself is a reckless act and which ultimately caused the death of Aida Burke. We disagree. Since there was insufficient evidence to establish that defendant was intoxicated, and the trial court granted a directed finding of not guilty as to the charge of driving under the influence of alcohol, the conviction for reckless homicide based on alcohol consumption cannot stand. Under the circumstances of this case, the evidence did not support the charge of reckless homicide because it was not proven beyond a reasonable doubt that the defendant had consumed enough alcohol to impair his ability to operate a motor vehicle. Therefore, the State has failed to prove that defendant’s reckless act was the proximate cause of the victim’s death. See also People v. Chambers (1972), 8 Ill. App. 3d 430, 289 N.E.2d 476, aff'd sub nom. People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447.

With respect to defendant’s argument that the court erred in denying his motion for a directed finding on the reckless homicide charge at the close of the State’s case, we find People v. Trump (1978), 62 Ill. App. 3d 747, 379 N.E.2d 370, to be dispositive of this issue.

In People v. Trump the court observed, in discussing the reason for not allowing a trial court to reserve a ruling on a motion for a directed verdict, that a defendant should not be forced to decide whether to produce evidence in his defense without knowing that the prosecution’s evidence was sufficient. Trump, 62 Ill. App. 3d at 748.

As we have previously noted, the evidence in this case did not support the charge of reckless homicide because it was not established beyond a reasonable doubt that the defendant had consumed alcohol in sufficient amounts to impair his ability to operate a motor vehicle. Moreover, the trial court allowed defendant’s motion for a directed finding on the charge of driving while under the influence of alcohol, stating that “there is not a scintilla of evidence of defendant’s blood alcohol content.”

Conversely, if the charge of reckless homicide was predicated on the defendant’s medical condition, i.e., that he suffered from sleep apnea and that he operated the motor vehicle in reckless disregard of the existence of that condition or that he recklessly consumed alcohol which aggravated that condition, then a directed finding of not guilty should have been entered since the State offered no such evidence in its case in chief.

Yet, because the trial court denied defendant’s motion, he felt compelled, in order to refute the inference that he had consumed alcohol, to proceed with evidence relating to this medical condition. At the conclusion of defendant’s case, the court found him guilty based upon evidence presented by him.

Our learned colleague bases his view in dissent that there was sufficient evidence to establish defendant’s guilt of reckless homicide upon the fact that the trial court’s findings held alternatively that either defendant was intoxicated or that he consumed alcohol knowing that it would affect his ability to remain awake due to a condition known as sleep apnea. The reliance on the trial court’s alternative findings is faulty and belies the record in this case. First, as previously noted, the trial court found, as it granted the motion for a directed finding on the DUI, that there was insufficient evidence of intoxication to support a finding of guilty. Additionally, the record is very clear that the diagnosis of sleep apnea was made after the occurrence involved in this case. Consequently, there is no evidence in this record that defendant knew or should have known that he had a condition that could be aggravated by consuming a small amount of alcohol. Accordingly, there can be no finding that he consciously disregarded a substantial and justifiable risk that his acts would be likely to cause death or great bodily harm to an individual.

Because it is our determination that defendant was not proved guilty beyond a reasonable doubt, there is no need to address defendant’s remaining contentions.

For the foregoing reasons, we reverse the judgment of the circuit court.

Judgment reversed.

BUCKLEY, P.J., concurs.

JUSTICE CAMPBELL,

dissenting:

I respectfully dissent from the decision of my colleagues because I agree with the trial court’s determination that the evidence at trial was sufficient to establish that defendant was guilty beyond a reasonable doubt of the offense of reckless homicide. The record establishes that the trial court made alternative findings at the close of trial, holding that either defendant was intoxicated or that he consumed alcohol knowing it would cause him to fall asleep due to sleep apnea. Sleep apnea is a condition which causes a person to stop breathing while asleep. The record establishes that defendant was not diagnosed as having sleep apnea until after he was arrested for this offense.

Dr. Steven Yeh, the physician who examined defendant and diagnosed his condition, testified during trial that a sleep study he conducted on defendant revealed that defendant would stop breathing for intervals of up to a minute and a half during the nighttime. The loss of oxygen would cause defendant to awaken and, as a result, defendant would not get much rest. Defendant told Dr. Yeh that he had this condition for a number of years. Dr. Yeh testified that alcohol or any kind of sedative would aggravate sleep apnea. Dr. Yeh further testifled that if defendant was relaxed, he might fall asleep, but that sleep apnea would not involve sudden attacks of sleep.

A person commits reckless homicide when he unintentionally kills a person while driving an automobile and the acts which cause death are performed recklessly so as to create the likelihood of death or great bodily harm to some person. (People v. Sleboda (1988), 166 Ill. App. 3d 42, 519 N.E.2d 512.) Reckless conduct occurs when an individual consciously disregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodily harm to some individual and where such disregard constitutes gross deviation from the standard of care which a reasonable person would exercise in such a situation. People v. Sleboda, 166 Ill. App. 3d at 55.

In the case at bar, although the record establishes that defendant was not diagnosed as having sleep apnea at the time of this occurrence, he was aware that he was physically affected by a lack of sleep. In my opinion, this evidence, along with defendant’s admission that he consumed alcohol and then drove an automobile, is sufficient to establish that defendant committed a reckless act. The trial court relied upon the fact that defendant knew he had a substance in his system prior to the accident and that he should have been aware of its probable effects on his ability to drive. At trial, Officer Mark Weidner testified that he overheard defendant tell the emergency room physician that he had consumed a couple of beers prior to the accident. In addition, Officer Lamantia testified that there was a strong odor of alcohol on defendant’s breath after the accident and that he discovered an open bottle of vodka in defendant’s car. The trial court concluded that there was evidence of the presence of alcohol. The evidence of a driver’s intoxication is probative of recklessness. (People v. Sleboda, 166 Ill. App. 3d at 55.) Further, Margo Gestar and Gerald Burger both testified that they observed defendant’s car cut across two lanes of traffic, crossing the center line of traffic and colliding with the victim’s car. The mental state of recklessness is to be inferred from all of the facts and circumstances in the record and is a determination for the trier of fact. People v. Hawn (1981), 99 Ill. App. 3d 334, 425 N.E.2d 1024.

After reviewing all of the evidence presented within the case at bar, any reasonable person could fairly conclude that defendant committed the offense of reckless homicide beyond a reasonable doubt. I view the findings of the trial court as sufficient to support defendant’s conviction for reckless homicide.

For these reasons, I would affirm the judgment of the trial court and I dissent from the decision of this court.