author: PRESIDING JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAMON BURGOS, Defendant-Appellant.
    First District (6th Division)
    No. 1—91—2154
    Opinion filed February 26, 1993.
    Rehearing denied April 26, 1993.

      Frederick F. Cohn, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and William L. Toffenetti, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Ramon Burgos, was convicted of murder, attempted murder, armed violence and aggravated battery, and was sentenced to 30 years’ imprisonment. On appeal, defendant raises as issues whether: (1) the State proved him guilty beyond a reasonable doubt; (2) the trial court erred in denying an evidentiary hearing on defendant’s post-trial motion for a new trial; (3) evidence of gang membership was improperly admitted; (4) the State failed to comply with discovery rules; (5) the trial court erred in refusing to give a certain instruction to the jury; and (6) defendant’s due process rights were violated when the State made improper implications about fingerprint testimony unsupported by evidence.

Following an evidentiary hearing, defendant’s motions to suppress identification testimony, to quash arrest and suppress evidence were denied. Defendant and codefendant Juan Rivera were tried simultaneously. Defendant chose a jury trial, and Rivera received a bench trial.

Joseph Siudut, age 24, and the deceased, Shawn Mooney, age 19, had known each other for four years. Around 8 p.m. on August 24, 1989, Siudut drove to a friend’s house located at the intersection of Barry and Pulaski in Chicago, where he met the deceased. They then drove to the intersection of North and Sawyer to buy some marijuana. Siudut noticed two individuals flashing gang signals with their hands. Siudut informed them that they were not involved in any gangs, but wished to buy some marijuana. The two men, whom Siudut identified as defendant and Rivera, approached the driver’s side of the car and directed the deceased to pull over to the curb. The men walked over to the passenger side of the car and asked Siudut for money for the drugs. Defendant walked away for a brief moment and returned to the passenger side of the car with a gun. Defendant held a gun to Siudut’s head and threatened to kill him. Siudut moved the gun away from his head and told the deceased to drive away. The deceased did not immediately obey Siudut’s instruction, so Siudut reached over, accelerated the gas pedal, and started driving. As they drove away, Siudut heard approximately six gunshots, and felt a bullet graze his back.

Siudut realized that the deceased had sustained a serious gunshot wound. En route to the hospital, Siudut was stopped by the police, who asked him what had occurred. He informed them that the deceased had been shot, and they called an ambulance. After the ambulance arrived, the police drove Siudut to the location of the shooting. Siudut was then taken to the hospital. After Siudut received treatment for his wound, he was taken to the police station where he viewed a lineup. He identified defendant and Rivera as the perpetrators of the offense "and identified defendant as the actual shooter. Siudut stated that he had drunk one beer prior to the time of the shooting, but denied using any drugs.

Officer Arthell Goodwin of the Chicago police department testified for the State that he was on duty on the night of the offense. Together with his partner, Clyde Hynes, Goodwin was on routine patrol in a marked squad car. Around 9:40 p.m., Goodwin was in the vicinity of Pulaski and Fullerton when he observed a dark-colored vehicle without lights proceed through the intersection at a high rate of speed. After the car proceeded through a red light, Goodwin activated the emergency equipment and pursued the vehicle for approximately seven blocks. Goodwin approached the driver’s side and observed a person slumped over the wheel. The deceased appeared to be unconscious, and he noticed blood on the back of his neck. Hynes approached the passenger side where Siudut was sitting. The rear window of the vehicle was broken out, and there were dents and holes around the right rear side.

Goodwin described Siudut’s demeanor as nervous, shaky and upset. Siudut explained that he was trying to drive the deceased to Belmont Hospital. Upon discovering that Siudut and the deceased were victims of gunshot wounds, Goodwin notified Area 5 violent crimes. He received a flash message from another police unit that they had apprehended two individuals as possible suspects in the shooting incident.

Officer Curt Hagemann of the Chicago police department testified that at around 9:30 p.m., he was on patrol with his partner, Officer Bill Whalen, when they observed two male Hispanics run across the intersection of Avers and Palmer. Hagemann made an in-court identification of defendant and Rivera as the men they saw, and further testified that defendant was holding a gun. Hagemann proceeded northbound on Avers in his squad car, and then exited his vehicle and pursued the two men on foot into a gangway adjacent to a brick two-flat building. Hagemann saw defendant throw an object onto a garage roof in the next yard. He ordered the men to halt. The officer handcuffed the men and arrested them. Defendant was apprised of his Miranda rights. A .45 caliber semiautomatic pistol was later recovered from the garage roof.

At that point, Hagemann was unaware that a shooting had just occurred; however, shortly thereafter he monitored a message on the radio that a man had been shot at the intersection of Barry and Pulaski. A second message stated that shots had been fired at Hamlin and Palmer. Hagemann radioed to the squad operator and told him that he had two subjects in custody and that a gun had been recovered.

Defendant and Rivera were then taken to the police station. Hagemann asked defendant whether he was a member of a gang, and defendant admitted that he was a member of the Latin Disciples. Hagemann also asked defendant whether he had any tattoos. On the arrest report, Hagemann wrote: “Self-admitted Latin Disciple tattoted [sic].” Hagemann recorded defendant’s height as 5 feet 11 inches, and that he weighed 195 pounds.

Officer Whalen testified to substantially the same evidence rendered by Hagemann. Whalen made an in-court identification of defendant and Rivera, and stated that defendant held the handgun. When the crime lab personnel arrived at the scene of the arrest, Whalen pointed to the location on the garage roof where defendant threw the gun.

Doctor Eupil Choi of the Cook County medical examiner’s office performed the autopsy of the deceased. He determined that the cause of death was a single gunshot wound to the upper back. Doctor Choi opined that it was a distant wound and that it had been fired from a range of at least 20 inches. Based upon his examination, Doctor Choi concluded that the wound was consistent with a bullet fired through a window or some type of intermediary object. Doctor Choi found that the deceased had cocaine metabolite and blood cocaine in his system, and that the drugs could have been ingested four to six hours prior to his death. Further, the deceased had a blood-alcohol content of .06%.

Officer Thomas Bachelder of the Chicago police department crime lab photographed the scene and recovered the handgun. Bachelder also photographed the vehicle, with its broken rear window and bullet holes in the side and trunk of the vehicle. Officer Stanley Mocaldo of the crime lab latent fingerprint unit examined the latent prints that had been taken from the pistol and ammunition clip found on the roof of the garage. Mocaldo found one left thumb print suitable for comparison on the handgun. He concluded that the print belonged to Francisco Santiago, whom Rivera implicated after trial as the shooter in the incident. He further testified that certain people, characterized as nonsecretors, do not leave fingerprints. Relatedly, Officer Ernest Warner of the crime lab performed the ballistics tests on the recovered handgun. He conclusively determined that the bullet which killed the deceased was fired from the gun recovered on the garage roof.

Julie Gardi testified for defendant that she was 15 years old and had been defendant’s friend for two years. Around 9:30 p.m. on August 24, 1989, she was at Mozart School together with her friends Elaina, Corey, and defendant. The group sat on a bench talking for about 20 minutes, and then Elaina, Corey and the witness headed toward Gardi’s home. Defendant remained in the park. Prior to arriving home, Gardi heard three or four gunshots.

Gardi was acquainted with Santiago, whom she described as “skinny” with black hair. Gardi identified Santiago’s gray Toyota in a photograph of the scene of the shooting. On cross-examination, Gardi stated that she knew defendant was in the Latin Disciples street gang. Although Gardi was aware that someone had been shot and that defendant was charged with the offense for more than one year, she did not tell anyone that she had been with defendant on the night of the shooting until two weeks prior to trial.

Defendant also called Officer Goodwin to elicit details of the original descriptions of the offenders given by Siudut. In his arrest report, Goodwin indicated that Siudut described the first offender as a male Hispanic, approximately 21 years old, 5 feet 7 inches, 150 pounds, with black hair and an olive complexion, and that he was wearing a white cap and blue jeans. The second offender was described as an Hispanic male wearing a white tee-shirt with blue jeans, 5 feet 9 inches tall, 160 pounds, black hair with an olive complexion. The report does not distinguish as to which description pertains to the shooter. Goodwin recalled that one of the assailants wore a Bears training jacket.

Defendant, age 20, testified that at around 9:30 p.m. on August 24, 1989, he was in the Mozart Park school yard. At first he was playing basketball, and then he joined in a conversation with Gardi, Elaina and Corey. After approximately one-half hour, the others left the park. Defendant remained there alone, and then proceeded across the school grounds toward Hamlin. Before he reached the exit, he heard gunshots. As he turned the corner towards Palmer, he saw people running. Upon reaching Palmer, he saw Rivera and Santiago. Defendant became confused and began running toward Avers. He saw the squad car approach and Rivera and Santiago run into a gangway. Defendant entered the gangway and told Rivera and Santiago what had happened. They urged him to follow them out of the gangway, and he complied. As he exited the gangway, he saw a police officer, who ordered him to stop. Rivera and defendant stopped; however, Santiago continued running. Defendant was told to sit on the grass and was subsequently arrested.

The police placed him inside the squad car and drove to Pulaski and Fullerton. Defendant stated that a man with blood on his shirt, whom he subsequently identified as Siudut, told the police that defendant was not the man involved in the incident. They then drove to Palmer and Hamlin, where Siudut again told the police that defendant was not the assailant. Defendant denied shooting any bullets at a vehicle in which Siudut was a passenger, and stated that he did not have a handgun in his possession. On cross-examination, defendant stated that he was a member of the Latin Disciples at the time of the shooting and that Rivera and Santiago were members as well.

The State presented several rebuttal witnesses. Hagemann testified that Officers Allen Wittenberg and Roy Rodriguez drove defendant from the location where he was arrested. Hagemann stated that during his pursuit of defendant and Rivera in the gangway, he did not see a third man. Wittenberg testified that he drove defendant to the police station after his arrest, and that he made no stops en route as described by defendant. Officer William Dorsch testified that he had a conversation with defendant after he arrived at the police station and had been advised of his Miranda rights. Defendant told Dorsch that he had been playing basketball with his friends at the school, and that he had heard shots during the game. He thought the shots were directed towards him, and he ran away. Defendant denied having a handgun on the night of the incident.

The jury found defendant guilty of murder, attempted murder, aggravated battery, and armed violence. Rivera was acquitted of the charges filed against him. Two months after his acquittal, Rivera submitted an affidavit stating that on the evening in question, he was present with Santiago at the corner of Hamlin and Palmer when two men in a car drove up looking to buy marijuana. Santiago began a conversation with the driver of the car, which evolved into an argument. Santiago walked away and returned a short time later with a gun in his right hand. Rivera saw Santiago point the gun in the direction of the car and fire shots as the car drove off. Rivera stated that Santiago was the only person who fired shots at the car. Rivera described Santiago as 5 feet 7 inches tall and weighing about 130 pounds.

On appeal, defendant first contends that he was not proved guilty beyond a reasonable doubt. Specifically, defendant attacks the eyewitness testimony of Siudut as inherently unreliable because he had used intoxicants; he did not have an ample opportunity to observe defendant; and his identification of defendant is impeached by the great disparity between the description of the shooter as given by Officer Goodwin and defendant’s appearance. He further contends that the true offender was Santiago and that doubts exist as to the accuracy of the police officers’ testimony.

It is well established that a criminal conviction will not be set aside on insufficiency of evidence grounds unless evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Kargol (1991), 219 Ill. App. 3d 66, 578 N.E.2d 1356.) As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.)

We focus our attention first upon defendant’s contentions challenging the credibility of Siudut. The testimony of Doctor Choi established that the deceased had used cocaine and alcohol. Siudut admitted that he had drunk beer on the night of the shooting and that he and the deceased sought to purchase marijuana. From these circumstances, defendant attempts to draw an inference that Siudut’s identification testimony must be inherently unreliable.

Defendant cites People v. Pellegrino (1964), 30 Ill. 2d 331, 196 N.E.2d 670, and People v. McKibben (1974), 24 Ill. App. 3d 692, 321 N.E.2d 362, for the proposition that the testimony of a narcotics addict is subject to suspicion. However, the record does not indicate that Siudut was a narcotics addict, nor can we infer that simply because he consumed alcohol on the evening of the murder his testimony is unworthy of belief. The law commits to the trier of fact the determination of credibility of witnesses, weight to be given their testimony, and inferences to be drawn from the evidence. People v. Gholston (1984), 124 Ill. App. 3d 873, 464 N.E.2d 1179.

We next address defendant’s challenge to Siudut’s identification testimony. Circumstances to be considered in evaluating an identification include: (1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification. People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317; People v. Cohoon (1984), 104 Ill. 2d 295, 472 N.E.2d 403; People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.

Application of the aforementioned principles to this case supports Siudut’s identification. Siudut testified that the defendant and Rivera approached the car, and a conversation ensued about buying marijuana. Defendant stood at very close range as he aimed the handgun and threatened to kill him. Siudut also identified defendant and Rivera later that same evening in a lineup and did not waver in that identification. Identification of the accused by a single eyewitness is sufficient to sustain a conviction, provided that the witness viewed the accused under circumstances permitting a positive identification. (People v. Neither (1988), 166 Ill. App. 3d 896, 520 N.E.2d 1247.) We find that Siudut had ample opportunity to identify defendant in a manner sufficient to sustain the conviction.

Defendant also contends that Officer Goodwin’s description of “assailant one” as the shooter does not comport with defendant’s physical description. Careful review of the record, however, reveals that during redirect examination, it was established that the arrest report does not distinguish between a first and second offender. Moreover, minor discrepancies in testimony do not render it unworthy of belief and only affect its weight. (People v. Marron (1986), 145 Ill. App. 3d 975, 496 N.E.2d 297.) Where discrepancies in the testimony of a witness relate only to collateral matters, they need not render the testimony of the witness on material issues improbable or incredible. People v. Brown (1986), 150 Ill. App. 3d 535, 501 N.E.2d 1347.

Defendant points out that Santiago’s thumbprint was found on the gun, which the State acknowledges. Defendant further maintains that the officers’ testimony as to whether defendant possessed the gun is also suspect because Siudut had an uncle who was employed by the police department.

Again, issues of credibility such as these are most properly addressed by the trier of fact. In view of the positive identification provided by Siudut, and Hagemann’s testimony that he apprehended defendant after a foot chase during which defendant was seen carrying a handgun which was recovered from the garage roof and which later proved to be the murder weapon, we find that defendant was proved guilty beyond a reasonable doubt.

Defendant next asserts that the trial court erred in denying his motion for a new trial. Specifically, defendant asserts that the affidavit of Rivera implicating Santiago constituted new evidence which could not have been presented at the first trial.

In order to warrant a new trial, newly discovered evidence must be of such conclusive character that it probably will change the outcome of the trial, must be material to the issue but not merely cumulative, and must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. People v. Geneva (1990), 196 Ill. App. 3d 1017, 554 N.E.2d 556.

As support for his position, defendant relies upon People v. Molstad (1984), 101 Ill. 2d 128, 461 N.E.2d 398. In that case, our supreme court determined that a different result appeared probable if the trier of fact would have considered the post-trial testimony of defendant’s codefendants (after their convictions) that defendant was not present at the time of the attack. The court determined that the trial court had abused its discretion in denying defendant’s motion for a new trial on the basis of such newly discovered testimony, where the trier of fact would have to balance testimony of a single witness placing the defendant at the scene of the crime, against defendant’s own denial of his presence, testimony of his parents that he was with them at the time, and the testimony of five other persons who claimed that defendant was not present.

We find, however, that the present case is factually distinguishable from Molstad. Although both matters had testimony of a single eyewitness, the case against defendant here was much stronger in view of the fact that Officers Hagemann and Whalen apprehended defendant after a foot chase shortly after the shooting occurred, and where defendant was identified as holding a handgun. Too, the murder weapon, which defendant threw onto the roof, was recovered. The record also reveals that Rivera’s affidavit implicating Santiago was not submitted until two months after the trial had concluded. In Molstad, the affidavits were prepared after the guilty verdict and before the sentencing hearing, thereby demonstrating defendant’s due diligence in presenting the court with the newly discovered evidence.

Defendant next contends that the State made improper references to his gang affiliation during closing arguments, thereby prejudicing the jury against him. Defendant asserts that the shooting was not gang related; as such, any reference to his gang involvement was impermissible under the circumstances.

At trial, Siudut testified that when he first encountered defendant and Rivera, they flashed gang symbols at him. Comments were also made during closing argument about the prominence of gangs in the neighborhood where the murder occurred. However, upon review of the record, we find that none of the comments complained of by defendant were objected to at trial on the basis now raised by defendant. It is well established that failure to raise objections at trial results in waiver of the issue upon review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) While the plain error rule can be invoked in instances where the error complained of is so egregious that it deprives defendant of a fair trial, we do not find that the circumstances of this case warrant its application.

Defendant also contends that the State violated Supreme Court Rule 412 (134 Ill. 2d R. 412), when it failed to disclose an oral statement made by defendant in its answer to discovery. In particular, defendant claims that the State failed to disclose an oral statement made by defendant after his arrest that he was a member of the Latin Disciples.

Supreme Court Rule 412 provides that the State shall, upon written motion of defense counsel, disclose any written or recorded statements and the substance of any oral statements made by the accused. The arrest report in question states, “self-admitted Latin Disciple tat-toted [sic].”

The principle behind pretrial discovery is to afford the defense an adequate opportunity to investigate and to alleviate untimely interruptions at trial occasioned by disclosures of statements first made at trial. (People v. Moses (1957), 11 Ill. 2d 84, 142 N.E.2d 1.) Supreme Court Rule 412 was adopted to prevent surprise and prejudice to the accused. (People v. Stewart (1980), 84 Ill. App. 3d 855, 406 N.E.2d 53.) Technical compliance with the rule may be excused where the defendant had access to the statements. (People v. Sanders (1974), 56 Ill. 2d 241, 306 N.E.2d 865; People v. Miller (1989), 190 Ill. App. 3d 981, 548 N.E.2d 1.) When the substance of a statement is contained in a police report that has been previously furnished to the defense pursuant to discovery, the purpose of the rule has been satisfied. People v. Miller, 190 Ill. App. 3d 981, 548 N.E.2d 1; People v. Howard (1984), 121 Ill. App. 3d 938, 460 N.E.2d 432; People v. Herrera (1981), 96 Ill. App. 3d 851, 422 N.E.2d 95.

A fair reading of the arrest report indicates that defendant had been adequately apprised by the State that he had made certain admissions to the arresting officer concerning his gang affiliation. The notations concerning defendant’s gang tattoos reinforced this point. We believe that one could fairly conclude from the language contained in the police report that defendant could anticipate questions concerning such admissions. Therefore, we dismiss defendant’s contentions that the State failed to adequately comply with discovery.

The next issue raised by defendant asserts that the trial judge erred when he refused to instruct the jury that the testimony of the police officers should be judged in the same manner as any other witness. The court did tender Illinois Pattern Jury Instructions, Criminal, No. 1.02 (2d ed. 1981), a general instruction concerning the credibility of witnesses, taking into consideration any interest, bias, or prejudice a witness may have. However, defendant urges that such an instruction is insufficient under the circumstances because the State’s case relied heavily upon the police testimony.

The decision whether to give a tendered non-Illinois Pattern Jury Instruction (non-IPI) rests within the sound discretion of the trial court, and the trial court may properly refuse a non-IPI credibility instruction where an Illinois Pattern Jury Instruction is given which adequately addresses the same issue. (People v. Maldonado (1989), 193 Ill. App. 3d 1062, 550 N.E.2d 1011.) In this case, we do not believe that the trial judge abused his discretion in refusing to tender defendant’s proffered instruction. Nor do we believe that the fact Siudut’s uncle was employed by the police department required such an instruction.

Finally, defendant argues that the testimony adduced at trial concerning the fact that certain individuals are not secretors and would therefore not leave fingerprints unfairly implied that defendant was a nonsecretor. However, defendant’s failure to object at trial to this testimony results in waiver of this issue upon review. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.

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

Judgment affirmed.

RAKOWSKI and GIANNIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    ALFRED BOLL, Plaintiff-Appellant, v. HYATT CORPORATION, d/b/a Hyatt Regency Chicago, Defendant-Appellee.
    First District (4th Division)
    No. 1—91—4088
    Opinion filed March 11, 1993.
    Rehearing denied April 26, 1993.

      Lonny Ben Ogus and Gary S. Wild, both of Chicago, for appellant.
    Barry A. Hartstein, Barry Levenstam, and Daniel S. Goldman, all of Jenner & Block, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

The circuit court of Cook County dismissed the complaint of plaintiff, Alfred Boll, that claimed the employee handbook given to employees of defendant, Hyatt Corporation, d/b/a Hyatt Regency Chicago, created a contractual obligation between defendant and plaintiff, although plaintiff had previously agreed to a terminable-at-will arrangement. The trial court concluded that contractual obligations between the parties did not arise from the employee handbook. Plaintiff did not appeal the dismissal and instead filed an amended complaint alleging that the supervisor’s manual given to members of defendant’s senior management created a contractual obligation similar to the one asserted in the initial complaint. The trial court again ruled that there was no contractual obligation created between defendant and plaintiff. The circuit court granted defendant’s motion for summary judgment. Plaintiff appeals.

The sole issue of contention on appeal is whether the supervisor’s manual negates defendant’s terminable-at-will rule, preventing it from firing plaintiff without cause.

We affirm.

On May 19, 1988, defendant sent a letter to plaintiff offering him the managerial position of executive chef at the Hyatt Regency Chicago Hotel (hereinafter Hyatt). The letter neither specified a particular duration of employment, nor did it include methods or procedures of termination. Plaintiff accepted the offer of employment.

On June 8, 1988, plaintiff completed an employment application which included a section entitled “applicant’s statement” directly above the signature line. This section contained the sentence, “I understand that my employment is terminable-at-will, and that the application is not, and, is not intended to be, a contract for continued employment.” (Emphasis added.) Plaintiff signed his name immediately below these words.

On June 18, 1988, plaintiff received a copy of the employee handbook which was disseminated to all Hyatt employees. The purpose of this handbook is to provide employees with guidelines intended to govern conduct on a day-to-day basis. It also describes disciplinary procedures and explicitly states that the list of rules “is not intended to be all-inclusive, and from time to time may be revised or changed.” The handbook further reiterates Hyatt’s position on contract formation. It states: “The rules described below are not intended to form any contract between Hyatt and its employees as to the procedures to be followed concerning any rule violation.” (Emphasis added.) Plaintiff, in writing, acknowledged receipt of this handbook.

On June 23, 1988, plaintiff received a copy of the supervisor’s manual or standard operating procedures manual (hereinafter manual) which is disseminated exclusively to management employees to assist them in their supervisory duties. The manual includes the same disclaimer language as that contained in the handbook. It also contains a letter from the regional vice-president stating that the manual, if used constantly, is designed to “assist and direct” employees in their jobs.

The manual also includes a two-paragraph memorandum which provides that “no employee may be discharged without cause and without having been properly notified in writing of improper conduct, poor work attitude, attendance problems, etc.” Plaintiff specifically asserts that he believed this language applied to him, thus constituting the basis of this action.

Plaintiff participated in a management training session conducted by Dorothy Mrzlock, the assistant director of human resources at the Hyatt. Managers and supervisors attended the session. Mrzlock explained that the manual was a guide “on how to deal with your own employees” and she informed the participants that the manual was to be utilized as a “reference tool” in dealing with employees.

Plaintiff was discharged in August 1989. He filed a complaint on October 20, 1989, alleging that the Hyatt employee handbook created an employment contract which provided that he could not be terminated without cause or “sufficient progressive disciplinary or corrective action.” Hyatt filed a motion to dismiss plaintiff’s complaint contending that plaintiff was a terminable-at-will employee and the employee handbook did not affect that status. The trial court granted the motion to dismiss, applying an objective test of contractual formation, and ruled it unreasonable for plaintiff to believe that the employee handbook altered his terminable-at-will status.

Plaintiff then filed an amended complaint alleging that the manual was an offer to change his terminable-at-will status and he could therefore only be fired for “cause and only after progressive discipline.” Hyatt subsequently filed a motion for summary judgment. The trial court concluded, similarly to the prior complaint, that it was unreasonable for plaintiff to believe that the manual constituted an offer to change his terminable-at-will status. The motion for summary judgment was granted.

Plaintiff appeals, arguing that a reasonable person in his position could have reasoned that the manual applied to him, altering his terminable-at-will status, and precluded Hyatt from dismissing him without cause.

We disagree. We hold that no contractual obligations existed between plaintiff and Hyatt and pronounce the following. The validity of plaintiff’s written acknowledgement of a terminable-at-will relationship between himself and his employer cannot subsequently be superseded by his subjective belief that a contract was implicitly created through an informational or policy manual. This written acknowledgement will be dispositive of any future allegation regarding contract formation.

Although we so hold, we will address several of plaintiff’s contentions which are grounded in his precarious reliance on Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482. Duldulao promulgated the method for determining whether enforceable contractual rights exist under circumstances involving the absence of a formal employment contract. The test provides:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” Duldulao, 115 Ill. 2d at 490.

We commence our discussion with the evaluation of the initial prong of the Duldulao test. Plaintiff posits that the phrase “no employee may be discharged without cause,” contained in the discipline administration section of the manual, creates a contractual relationship between himself and Hyatt. Plaintiff further argues that the head of a training session told him that the manual applied to him, reinforcing his belief that he could not be terminated without cause. It is on these two bases that plaintiff places his assertion of contract creation and a change in the at-will arrangement.

Unequivocally, the Duldulao test upon which plaintiff postulates contract existence is an objective one. Yet, plaintiff incorrectly stresses the significance of his belief that the manual applied to him. He bases this understanding on his own reading of the manual and statements made by the training session leader. However, plaintiff’s subjective belief is not a consideration in the Duldulao analysis. The inquiry is, conversely, whether a reasonable person could have understood that a contract was formed.

The disclaimer included in the manual forecloses any reasonable belief of contract formation. “[T]his court has found the presence of disclaimers in an employee handbook or manual negates contract formation under Duldulao.” (Condon v. American Telephone & Telegraph Co. (1991), 210 Ill. App. 3d 701, 707.) The manual clearly states that the rules included therein “are not intended to form any contract between the Hyatt and its employees as to the procedures to be followed concerning any rule violation.” Moreover, the introduction of the manual states: “This Supervisors Guide to Personnel Procedures is designed to give you the information you need in order to establish and maintain a smooth, effective working relationship with the Human Resources Department.” The above statements taken in conjunction with the training session leader’s reminder that the manual is to be used strictly as a “reference tool” in dealing with employees illustrates the carefully delineated relationship between Hyatt and plaintiff.

We find that the manual did not contain a promise clear enough that a reasonable employee would believe that an offer of employment had been made. Therefore, as the first prong of the Duldulao test is unsatisfied, an implied contract was not established between plaintiff and Hyatt. “All three conditions in Duldulao must be present to create enforceable contract rights.” Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 257.

The trial court correctly found that no contract existed between plaintiff and Hyatt and properly granted Hyatt’s motion for summary judgment. For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAHILL and COUSINS, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
      In re L.L., A Minor (The People of the State of Illinois, Appellee, v. L.L., Appellant).
    First District (1st Division)
    No. 1—89—0979
    Opinion filed March 15, 1993.
    Randolph N. Stone, Public Defender, of Chicago (Joseph M. Gump and Robert Guch, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Laura L. Morrison, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This appeal is brought on behalf of L.L., a minor, pursuant to Supreme Court Rule 660(a) (134 Ill. 2d R. 660(a)), from an order entered by the juvenile division of the circuit court of Cook County. The court refused to credit L.L. for time he spent in custody prior to his dispositional hearing on the issue of revocation of probation. The State contends that review of the issue is moot because L.L. completed his probation satisfactorily prior to this appeal. The office of the Appellate Defender has filed an amicus curiae brief in support of L.L.’s arguments on appeal.

We do not address L.L.’s contention on appeal because our review of the facts reveals that his claim is moot. The principal facts pertinent to our disposition follow.

On July 14, 1988, L.L. was placed on a year’s probation following a finding of delinquency. Thereafter, on December 12, 1988, he was arrested and the State sought to revoke his probation when it filed a supplemental petition alleging that L.L. had committed the offense of robbery. L.L. was held in custody from December 14 to December 28, 1988.

On February 16 and 17, 1989, the court conducted an adjudicatory hearing and found L.L. delinquent on the ground that he violated his probation. On February 17, 1989, the court also ordered a social investigation report, entered an order of detention of L.L. and continued the case until March 9, 1989, at which time the dispositional hearing was to be held. L.L. remained in custody from the time of the adjudicatory hearing on February 17, 1989, until the time of the dis-positional hearing on March 9,1989.

During the dispositional hearing on March 9, 1989, the juvenile court terminated and revoked L.L.’s preexisting probation as “unsatisfactory” and ordered another year’s probation with the first 14 days to be served in the juvenile detention center. The court denied counsel’s request to credit L.L. for the time he served in custody pending the dispositional hearing. A motion to reconsider the disposition was heard and denied on March 20, 1989, and a timely notice of appeal was filed on April 17, 1989.

We do not reach the issue of whether or not L.L. was entitled to credit for the time he spent in custody prior to his dispositional hearing. L.L. completed his term of probation on March 8, 1990, three months prior to the perfection of this appeal and almost two years prior to the time this matter became “ready” for review.

We agree with the State’s contention that L.L.’s claim is moot on the grounds that his term of probation was completed as “satisfactory” on March 8, 1990, and that the only remedy which could be applied to this case would be remandment for a new dispositional hearing. A question is moot when no actual rights or interests of the parties remain or when events occur which render it impossible for the reviewing court to grant effective relief to either party. (First National Bank v. Kusper (1983), 98 Ill. 2d 226, 233, 456 N.E.2d 7; Harris v. Education Officers Electoral Board of Community Consolidated School District 110 (1990), 203 Ill. App. 3d 917, 561 N.E.2d 204.) In Harris, the court determined that after the issuance of a court order where reversal can have no practical effect on the controversy, questions that arise relative to that order are moot.

In the present case, L.L. seeks to have the cause remanded to allow the trial court to amend the sentencing order to reflect that L.L. should have been credited for time served in custody prior to the dis-positional hearing. However, such relief would have no actual effect on the outcome of L.L.’s case since he completed his term of probation as “satisfactory” on March 8, 1990.

Moreover, Illinois courts have held repeatedly that when an opinion on a question of law cannot affect the parties, a court should not issue what is essentially an advisory opinion merely to establish precedent or govern future cases. (Harris, 203 Ill. App. 3d 917, 561 N.E.2d 204, citing In re Marriage of Holem (1987), 153 Ill. App. 3d 1095, 506 N.E.2d 739.) Thus, since the only remedy which could be applied to this case would be remandment for a new dispositional hearing which in no way would affect the parties, in reliance on Holem and Harris, we dismiss this appeal as moot.

Appeal dismissed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES HUDDLESTON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—2095
    Opinion filed March 16, 1993.

      Rita A. Fry, Public Defender, of Chicago (Lynne Hubanks Miller, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Cory J. Pollack, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

At approximately 3 a.m. on June 1, 1990, Joyce Ash saw a yellow Lincoln Continental with two occupants proceed down 16th Street in the City of Chicago and park across the street about 90 feet from her front porch where she and her brother, Patrick Williams, were sitting. After the car stopped, Ash observed the passenger exit the car and cross the street while the driver, whom she identified as the victim, Donald Taylor, walked empty-handed around the car and stood on the sidewalk next to the passenger side. A few seconds later, she noticed that a third person, whom she identified as defendant, had joined Taylor on the sidewalk near the passenger side of the automobile. She then saw that although Taylor did not make any motion toward defendant, defendant made a jabbing motion with his arm toward Taylor’s chest. Ash then saw Taylor jump backwards, stumble into the street, and collapse. As she observed defendant follow Taylor into the street, Ash noticed that defendant had a knife in his hand which he then placed in his back pocket.

Ash then ran into the street with Williams to help Taylor, who, by the time they arrived, had been carried back onto the sidewalk. She noticed that Taylor’s chest was full of blood, and she heard someone tell the defendant, who was standing behind her, “Man, I think you done killed him. You better get away from here.” She then watched as defendant fled from the scene. Later that morning, Ash picked defendant out of a lineup as Taylor’s assailant and also identified the knife that he used and the gloves that he was wearing on the night of the homicide.

Williams also testified and gave substantially the same account as Ash had related, except that he did not see the yellow Lincoln pull up to the curb because he was looking the other way at the time. He did witness, however, that defendant had a knife in his hand before he saw him make a thrusting motion toward Taylor, and he corroborated Ash’s testimony that Taylor did not make any gesture or motion toward defendant before he was stabbed.

Williams further stated that when he accompanied Ash to assist Taylor after he had collapsed, he followed defendant, who had begun to walk away from the scene, and saw him hurl the knife toward the roof of a garage and observed it fall to the ground. Finally, Williams, who had earlier called the police to report the incident, flagged down a squad car and informed the officers that he had witnessed defendant stab Taylor.

Ruben Kelly also testified for the State and related the following events. At about 3 a.m. on June 1, 1990, he was drinking beer with some friends outside of a fast-food restaurant across the street from where the incident took place. At that time, a yellow car driven by Taylor and carrying another man in the passenger seat parked directly across the street from the restaurant. The passenger alighted and went across the street into a tavern.

A short time later, Kelly saw a man whom he recognized as defendant approach the driver’s side of the vehicle, and soon thereafter, he observed defendant and Taylor walk to the passenger side of the automobile. About a minute later, Kelly saw defendant, armed with a knife, make one or two stabbing motions toward Taylor’s midsection; he did not see Taylor attack defendant, nor did he ever see anything in Taylor’s hands. Kelly then observed Taylor stagger into the street and fall on his face.

As Kelly approached Taylor while he was being carried back onto the sidewalk, he noticed that defendant’s shirt was full of blood. At that time, he told defendant, whom he had earlier seen place the knife in his back pocket, to “get out of here *** because the guy looked like he [was] dead.” He then watched defendant flee from the scene.

Kelly identified at trial the knife he saw the night of the incident. He also testified that between 30 minutes to one hour before the occurrence, he saw defendant a few blocks from the scene with that same knife protruding from his back pocket, and he told defendant to get rid of it before he “got busted.”

Chicago police officer Richard Nelson testified that he responded to a call of a battery in progress at about 3:18 a.m. on June 1, 1990. He arrived at the scene soon thereafter and spoke with Williams, who told him that he had witnessed a stabbing, and described the offender, who by that time had fled. Officer Nelson observed a few blocks away the man described by Williams, later identified as defendant, and saw that he was throwing an object, later identified as the knife used in the homicide. Officer Nelson pursued, apprehended and ultimately arrested defendant.

Chicago police officer James Tolliver testified that he was assigned as an evidence technician in this case and that at approximately 3:30 a.m. on June 1, 1990, he recovered a knife and a pair of black gloves from the scene of the crime. He inventoried the evidence and identified it at trial.

Finally, the State offered via stipulation that if Michael Chambliss were called to testify, he would have stated that: (1) he was a Cook County medical examiner; (2) Taylor died as result of a single stab wound to the chest; and (3) Taylor’s toxicology report revealed that his blood contained amounts of ethanol, cocaine and phencyclidine.

Defendant presented the following evidence. Ricky Haley testified that at approximately 9 p.m. on May 31, 1990, Taylor came by his home and told him that defendant was “messing with him.” Haley stated that he walked with Taylor to the corner of Ogden and Kedzie Avenues, located a few blocks from the scene of the crime, in order to protect him in the event that he was attacked by defendant. A short time later, after nothing had occurred, Haley returned home. He also related that Taylor was not carrying any weapons during the period of time Haley accompanied him.

Chicago police detective Greg Bronsberg testified briefly to the fact that Kelly, one of the State’s witnesses, had been drinking the evening of the incident; Bronsberg added, however, that Kelly was not so drunk that he was unable to describe what he had seen that night.

Finally, defendant took the stand and offered the following version of the events on the night of the homicide. At about 10:30 p.m. on May 31, 1990, he saw Taylor on the corner of Ogden and Kedzie, at which time, defendant, Taylor, Haley and a man named L.C. Johnson were standing together on the street. Taylor demanded that Johnson repay some money which Johnson owed him, but because Johnson did not have any money, defendant gave Taylor the $8. Defendant then asked Johnson when he would be able to repay the money, and Johnson told him that he did not know when he would be able to do so. For that reason, defendant requested that Taylor return his $8. When Taylor refused, an argument ensued; eventually, however, cooler heads prevailed, and Taylor returned the money without any incident.

About 2:30 or 3 the next morning, defendant was talking with some friends on 16th Street when he observed Taylor drive up and park his car near him. After Taylor’s passenger alighted from the car and walked across the street, Taylor exited the car and approached him with a pipe or a tire iron. Taylor told him that “he would fuck [him] up if [defendant] ever did something like that again,” and swung the object at defendant; he missed, however, and defendant pushed Taylor back into the open passenger door. One of the persons with whom he had been talking before Taylor’s arrival then handed him a knife, and while Taylor was still “wedged” inside the car door, defendant stabbed him once in the chest. Defendant stated that Taylor did not have the weapon in his hands when he stabbed him, explaining that he must have dropped it when he tried unsuccessfully to hit him. Defendant denied that he had possession of the knife earlier in the evening or that he had earlier spoken to Kelly about it. After stabbing Taylor, defendant placed the knife in his back pocket and walked away from the scene. When he saw police officers approaching him, he threw the knife away.

In rebuttal, the State introduced certified copies of two of defendant’s prior convictions, one of which was for attempt (robbery) and the other was for residential burglary.

The trial judge found defendant guilty of first-degree murder. Defendant waived his right to a jury at the death penalty hearing, and after the parties stipulated that he was eligible for the death penalty, the trial judge found that certain mitigating factors preeluded him from imposing it. Accordingly, defendant was sentenced to a term of natural life in the custody of the Illinois Department of Corrections.

I

Defendant asserts that he sustained his burden of establishing that he acted reasonably in defense of his person against the attack by Taylor. Section 7 — 1 of the Criminal Code states:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.

Under section 7 — 1, each of the following elements must be present in order for a defendant to prevail on a self-defense claim: (1) that force had been threatened against the defendant; (2) that defendant was not the aggressor; (3) that the danger of harm to the defendant was imminent; (4) that the force threatened to the defendant was unlawful; (5) that the defendant actually believed that a danger existed, that force was necessary to avert the danger, and that the amount of force used by the defendant was necessary; and (6) that all of the defendant’s beliefs were reasonable. (People v. Willis (1991), 217 Ill. App. 3d 909, 917, 577 N.E.2d 1215, 1220, appeal denied (1991), 142 Ill. 2d 664, 584 N.E.2d 1139; People v. Kyles (1980), 91 Ill. App. 3d 1019, 1021, 415 N.E.2d 499, 501.) When a defendant raises the issue of self-defense and introduces some evidence as to each of these elements, the burden then shifts to the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. (People v. Murillo (1992), 225 Ill. App. 3d 286, 292, 587 N.E.2d 1199, 1204, appeal denied (1992), 145 Ill. 2d 641, 596 N.E.2d 634; Willis, 217 Ill. App. 3d at 917-18, 577 N.E.2d at 1220.) If the State negates beyond a reasonable doubt any one of the above-mentioned elements, it has met its burden and the defense must be rejected. Murillo, 225 Ill. App. 3d at 292, 587 N.E.2d at 1204.

Whether a killing is justified under the law of self-defense is a question of fact (People v. Felella (1989), 131 Ill. 2d 525, 533, 546 N.E.2d 492, 495; Willis, 217 Ill. App. 3d at 918, 577 N.E.2d at 1220; People v. Miller (1991), 211 Ill. App. 3d 572, 579, 570 N.E.2d 515, 519), and the fact finder is not required to accept as true the defendant’s evidence in support of that defense (Murillo, 225 Ill. App. 3d at 292, 587 N.E.2d at 1204; Miller, 211 Ill. App. 3d at 579, 570 N.E.2d at 519). Instead, the trier of fact is obliged to consider the probability or improbability of the evidence, the circumstances surrounding the event, and all of the witnesses’ testimony. (Murillo, 225 Ill. App. 3d at 292, 587 N.E.2d at 1204; Miller, 211 Ill. App. 3d at 579, 570 N.E.2d at 519.) The standard of review which this court must apply to a fact finder’s determination of a defendant’s guilt or innocence, as recently defined by our supreme court, is whether

“after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] The reviewing courts apply this standard regardless of whether the evidence is direct or circumstantial. [Citations.] This standard of review does not allow the appellate court to ‘substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses [citation].’ [Citation.] Therefore, [a reviewing] court 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 [citation].’ [Citation.]” People v. Sutherland (1992), 155 Ill. 2d 1,17.

In the case at bar, it is clear that defendant has raised the issue of self-defense and has offered “some evidence” as to each element of that defense. He testified that Taylor exited the car, approached him menacingly, told him that he would “fuck [him] up,” and then swung a pipe or tire iron at him. Accordingly, we find that defendant’s testimony was enough to satisfy the “some evidence” standard as to all of the elements of his self-defense claim.

We find it equally clear, however, that the State has sufficiently rebutted defendant’s self-defense claim by proving beyond a reasonable doubt the nonexistence of at least one of the elements of that defense. All three eyewitnesses to the incident stated that Taylor had nothing in his hand at any time during the incident and that he made no move whatsoever toward defendant before he was stabbed. Consequently, it was incontestably reasonable for the trial court to conclude that defendant was not in danger of immediate death or great bodily harm when he stabbed Taylor; certainly, we cannot say that its determination was “so unreasonable, improbable, or unsatisfactory” as to warrant a reversal of defendant’s conviction.

II

Defendant next contends that even if we do not find that he acted reasonably in self-defense, we should at least reduce his conviction to second-degree murder for the reason that he acted unreasonably in killing Taylor in self-defense. Section 9 — 2 of the Criminal Code provides in pertinent part:

“Second Degree Murder, (a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 — 1 of this Code [Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1(a)(1), (a)(2)] and either of the following mitigating factors are present:

* * *

(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code [Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1 et seg.], but his belief is unreasonable.

* * *

(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing under the principles stated in Article 7 of this Code.” Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2.

Under section 9 — 2, once the State has proved the elements of first-degree murder beyond a reasonable doubt, the offense of first-degree murder will be reduced to second-degree murder if the defendant can establish by the preponderance of the evidence that he acted unreasonably in self-defense. (People v. Shumpert (1989), 126 Ill. 2d 344, 352, 533 N.E.2d 1106, 1109; People v. Woodrome (1992), 237 Ill. App. 3d 220, 237, 604 N.E.2d 486, 498; Willis, 217 Ill. App. 3d at 924-25, 577 N.E.2d at 1225.) It is not incumbent on the State, in establishing the elements of first-degree murder, to prove the nonexistence of the mitigating factors, here the “imperfect self-defense,” present in section 9 — 2. (Shumpert, 126 Ill. 2d at 352, 533 N.E.2d at 1109; Woodrome, 237 Ill. App. 3d at 237, 604 N.E.2d at 498; Willis, 217 Ill. App. 3d at 925, 577 N.E.2d at 1225.) Furthermore, if the defendant does prove that he acted unreasonably in self-defense, that will not negate the requisite mens rea for first-degree murder. (Willis, 217 Ill. App. 3d at 925, 577 N.E.2d at 1225; People v. Jerome (1990), 206 Ill. App. 3d 428, 436, 564 N.E.2d 221, 226, appeal denied (1991), 137 Ill. 2d 668, 571 N.E.2d 152.) Finally, courts in Illinois have invariably held that it is for the trier of fact to determine whether a homicide is murder or manslaughter, or whether it is justified as self-defense. (See, e.g., People v. Davis (1966), 35 Ill. 2d 55, 61, 219 N.E.2d 468, 471; People v. Berryman (1988), 171 Ill. App. 3d 548, 555, 526 N.E.2d 180, 184, appeal denied (1988), 123 Ill. 2d 560, 535 N.E.2d 404.) Since, under our present statutory scheme, what used to be considered murder is currently defined as first-degree murder, and what was once classified as voluntary manslaughter is now defined as second-degree murder (see People v. Newbern (1991), 219 Ill. App. 3d 333, 343, 579 N.E.2d 583, 589-90, appeal denied (1992), 143 Ill. 2d 645, 587 N.E.2d 1022), it necessarily follows that it is for the fact finder to decide whether a homicide is first- or second-degree murder.

In the case at bar, we find that the trial court’s determination that defendant was guilty of first-degree murder was not so unreasonable as to require a reduction of the offense to second-degree murder. The court obviously rejected defendant’s story and accepted the eyewitnesses’ account of the events which clearly illustrated that Taylor did not at all provoke defendant. Because we are not entitled to reweigh the conflicting evidence, but instead must view it in the light most favorable to the State, we affirm the trial court’s determination that defendant failed to prove by a preponderance of the evidence that he acted unreasonably, in self-defense.

Ill

In his final assignment of error, defendant claims that he should be granted a new trial because the trial judge should not have allowed the prosecutor to cross-examine him with respect to his post-arrest silence. The cross-examination at issue was as follows:

“[State’s Attorney:] Sir, do you remember talking to an assistant state’s attorney by the name of Marjorie Laws and Detective Bronsberg who just testified here?

[Defendant:] Yes, I do.

[State’s Attorney:] And, in fact, sir, that was after you were arrested at about 7:45 in the morning on June 1, 1990, correct?

[Defendant:] Yes.

[State’s Attorney:] And that conversation took place at Area Four, right at Harrison and Kedzie, correct?

[Defendant:] Correct.

[State’s Attorney:] And at that time, sir, they advised you of your rights; is that right?

[Defendant:] Yes.

[State’s Attorney:] You told them you understood those rights?

[Defendant:] Yes.

[State’s Attorney:] And at that time, sir, you never told them that [Taylor] came at you with a pipe, did you, sir?

[Defense Counsel:] Object, judge.

[THE COURT:] Basis?

[Defense Counsel:] He has no duty to speak to the state’s attorney at all, judge. What I believe he said was: I don’t know. I wasn’t involved. That’s the statement.

[THE COURT:] Overruled.

[State’s Attorney:] Did you tell the detective and the state’s attorney that Mr. Taylor came at you with a pipe?

[Defendant:] No, I didn’t.

[State’s Attorney:] In fact, sir, you denied any knowledge of the incident; isn’t that right?

[Defendant:] Yes, I did.

[State’s Attorney:] And you told them, sir, you were at your mother’s house from 8:00 p.m. to 2:30 in the morning; isn’t that right?

[Defense Counsel:] Object, judge. It’s not impeaching.

[State’s Attorney:] Judge, I certainly think it is.

[THE COURT:] Overruled.

[Defense Counsel:] Judge, it’s not impeaching. It’s collateral to this. It’s irrelevant. The issue is 3:00 o’clock in the morning. He doesn’t impeach anything that he said he was at his mother’s house which happens to be on the same block.

[THE COURT:] Overruled.

[State’s Attorney:] Sir, did you tell them that, that you had been at your mother’s house from 8:00 p.m. to 2:30 in the morning?

[Defendant:] I may have said I was there but I don’t remember telling him it was that time.

[State’s Attorney:] But you did tell them that you had been at your mother’s house that morning, correct?

[Defendant:] Yes.

[State’s Attorney:] And you also told them that you had forgotten something at your mother’s house, a speaker, and you went back to pick it up; isn’t that correct?

[Defendant:] Yes.

[State’s Attorney:] And you told the state’s attorney and the detective that you were arrested on the way back to your mother’s house; is that correct?

[Defendant:] Yes.

[State’s Attorney:] You never told the police and you never told the state’s attorney anything about Donald Taylor coming after you, did you, sir?

[Defendant:] No, I didn’t.”

Defendant argues that this cross-examination impeached him regarding his post-arrest silence and thus violated his right to remain silent after arrest despite the guarantee to the contrary in a Miranda warning, as espoused in Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. We find, however, that the case sub judiee is governed by Anderson v. Charles (1980), 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180, where the United States Supreme Court explained:

“In Doyle, we held that the Due Process Clause of the Fourteenth Amendment prohibits impeachment on the basis of a defendant’s silence following Miranda warnings. The case involved two defendants who made no postarrest [sic] statements about their involvement in the crime. Each testified at trial that they had been framed. On cross-examination, the prosecutor asked the defendants why they had not told the frameup [sic] story to the police upon arrest. We concluded that such an impeachment was fundamentally unfair because Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. [Citations.]
Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning . makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all. [Citations.]” (Emphasis added.) Anderson, 447 U.S. at 407-08, 65 L. Ed. 2d at 226, 100 S. Ct. at 2181-82.

Accord People v. Frieberg (1992), 147 Ill. 2d 326, 355-56, 589 N.E.2d 508, 520-21; People v. Rehbein (1978), 74 Ill. 2d 435, 440-43, 386 N.E.2d 39, 41-42; People v. Miller (1992), 224 Ill. App. 3d 823, 831, 587 N.E.2d 1136, 1141.

In this case, it is clear that the prosecutor’s cross-examination was proper because it impeached defendant with his post-arrest statements. After his arrest, defendant told the police that he had nothing to do with Taylor’s death, that he had been at his mother’s house from 8 p.m. to 2:30 a.m, and that he was arrested while returning there to retrieve a speaker which he had forgotten. His story, however, was belied by his testimony at trial wherein he stated that he killed Taylor in self-defense and that he had a previous meeting with him and others at 10:30 p.m. Accordingly, the prosecutor’s cross-examination of defendant was proper impeachment under Anderson for the reason that the questioning “ma[de] no unfair use of [his] silence *** [because] defendant ha[d] not remained silent at all” (Anderson, 447 U.S. at 408, 65 L. Ed. 2d at 226, 100 S. Ct. at 2182); and as former Chief Justice Burger stated, “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Harris v. New York (1971), 401 U.S. 222, 226, 28 L. Ed. 2d 1, 5, 91 S. Ct. 643, 646.

Defendant nevertheless urges that this court’s recent decision in People v. Gagliani (1991), 210 Ill. App. 3d 617, 569 N.E.2d 534, requires that we reverse and grant him a new trial. We disagree. In Gagliani, the defendant told a police officer after being arrested and “Mirandized” that he “didn’t have anything to do with the incident” and that he “did not know what [the officer] was talking about” when questioned about a sexual assault. (Gagliani, 210 Ill. App. 3d at 621, 569 N.E.2d at 537.) After defendant testified at trial that he engaged in consensual intercourse with the victim, the prosecutor impeached him with his prior inconsistent statement to the police. (Gagliani, 210 Ill. App. 3d at 625, 569 N.E.2d at 539.) The appellate court held this cross-examination to be reversible error since it in effect was an impeachment with post-arrest silence prohibited by Doyle. Gagliani, 210 Ill. App. 3d at 624-25, 569 N.E.2d at 540-41.

In People v. Frieberg (1992), 147 Ill. 2d 326, 589 N.E.2d 508, however, the defendant was arrested for various violations of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. par. 1101 et seq.). (Frieberg, 147 Ill. 2d at 336, 589 N.E.2d at 513.) After being given his Miranda warnings, he related a version of the events prior to the purchase of cocaine found in his home which was inconsistent with his trial testimony, and the assistant State’s Attorney impeached him on cross-examination regarding his divergent stories. (Frieberg, 147 Ill. 2d at 355-56, 589 N.E.2d at 521.) Our supreme court rejected the defendant’s contention that a Doyle violation similar to the one in Gagliani had occurred, explaining thus:

“Following his arrest and Miranda warnings, defendant did not remain silent. He related an entire version of events, but denied his knowledge of the cocaine and the anticipated drug deal. Defendant also omitted significant details to which he later testified at trial. This initial version was thus inconsistent with defendant’s subsequent trial testimony and his theory of defense. Under Anderson and Rehbein, the State could properly cross-examine defendant regarding his prior inconsistent statements made following arrest.
*** [W]e find [Gagliani], also cited by defendant, to be distinguishable from the present case. Gagliani did not concern a situation where a defendant gave authorities any version of events which later proved inconsistent; the defendant simply denied knowledge of the incident. As such, the factual situation, as the appellate court recognized in Gagliani, was akin to that of Doyle.” (Emphasis added.) Frieberg, 147 Ill. 2d at 356, 589 N.E.2d at 522.

We find the case at bar to be on all fours with Frieberg and in-apposite to Gagliani. Defendant here did not merely deny knowledge of the incident; instead, he told police officers that he was at his mother’s house all evening and that he was arrested while returning home to pick up a speaker which he had left there. As stated above, this contradicted his trial testimony that he was at other places on the night of the offense and that he was conversing with a group of friends outside on the street when he was attacked by-Taylor. Accordingly, Gagliani is inapplicable, and the prosecutor’s cross-examination was proper under Anderson.

For all of the foregoing reasons, we affirm defendant’s conviction for first-degree murder.

Affirmed.

McCORMICK, P.J., and HARTMAN, J., concur.

      Defendant contradicted himself during cross-examination, however, when he stated that he was actually arguing with Johnson, not Taylor, over the return of the $8.

      We note in this regard that defendant erroneously asks us to reduce his conviction to voluntary manslaughter instead of second-degree murder.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE JACKSON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—1413
    Opinion filed March 16, 1993.

      Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Tyrone Jackson was arrested on February 24, 1987, and subsequently charged by indictment with one count of murder and one count of armed violence for events occurring on November 22, 1986. The State eventually nol-prossed the latter count, and a jury later found defendant guilty of the remaining offense of murder.

Keisha Young, Yvette Jones, Tyrell Walker, and Vivian Harris, all of whom were present at the scene of the crime, testified to the following version of the events occurring on the night of the homicide. On November 22, Harris and Walker hosted a birthday party at their home, located at 15400 Oakley Court in Harvey, Illinois, for Jones and Harris. Only guests who had received an invitation were permitted to attend the “couples only” party at which food, alcohol and marijuana were available.

Sometime after the festivities had begun, Anthony Matthews and Bruce Williams arrived at the party. Harris told them that they could not enter because the party was for invitees only; however, she informed them that they could join the gala if they returned with either “a date or a drink.” About an hour later, Matthews and Williams returned with defendant, Billy Sibley and another man named Ralph. Although the men brought alcohol with them, Harris still did not want to admit them because she “[didn’t] want no trouble started.” However, her boyfriend, Van Johnson, convinced her to allow them to join the party.

Shortly after the men were permitted in the house, Williams began arguing in the kitchen with Johnson’s friend Kevin Kelly. Harris interceded, separating them temporarily, but soon thereafter the two men began quarrelling again. Although no punches were thrown, Williams and Kelly were shoving each other and exchanging obscenities. Harris finally had enough of the nonsense, so she told Williams that he would have to leave the party. Williams refused, however, and Harris was forced to push him out the back door.

While Harris was shoving Williams out the door, defendant and Matthews also proceeded outside, as did Kelly, Jones, Walker and a few other members of the party. Williams was still arguing with Harris and Kelly when Young went to awaken Johnson, who had fallen asleep on the couch, in order to inform him of the hostilities which were going on in the backyard. Johnson then went outside and tried to defuse the situation by imploring Williams, Matthews and defendant to leave peacefully so that the police would not break up the party. At this point, Young was standing in the doorway, Jones was standing outside just to the right of a cement step outside the door, Harris was just to her right, Johnson was standing in front of and between Jones and Harris, and Walker was a good distance to the left of the cement step.

While Williams was arguing with Harris and Johnson, Matthews, who had briefly left the backyard area, came running down Oakley Court, the street adjacent to the yard, with a gun. As he was shouting “Ain’t nobody going to fuck with my folks,” and “What’s up? Who’s fucking with my roadie?” Matthews fired one shot into the air. He then passed the gun to Williams, who was standing between a couple of parked vehicles at a point about eight feet away from the crowd and who fired the weapon in the direction of Johnson, Harris and Jones. Harris and Walker testified that Williams fired one shot, but Jones stated that he fired two; in any event, one bullet struck Johnson in the foot, and as he stumbled for cover, Harris and Jones tried to help him walk. Williams then handed the gun to defendant, who approached to within six feet of Johnson and fired two bullets at him, one of which struck him in the neck. As the women dragged Johnson, who was bleeding profusely, into the house, defendant yelled “What’s up now, motherfucker?” and then fled the scene in a car with Williams and Matthews.

After the assailants left the scene, Jones ran to a neighbor’s house and called the police, who arrived a short time later. Johnson was taken to Ingalls Memorial Hospital, where he eventually died. Later that night at the police station, Harris identified, from an array of photographs, defendant, Williams and Matthews as the shooters; Jones identified only defendant and Matthews from that same array.

Assistant Cook County Medical Examiner Nancy Jones, M.D., testified that Johnson died as a result of massive bleeding caused by two gunshot wounds. She stated that Johnson had a through-and-through wound in his left foot and that the bullet had entered the inside of his foot, traveled upward, and then exited the top of his foot near his ankle. Dr. Jones opined that although it did not appear that the bullet caromed off the ground before entering Johnson’s foot, the upward path of the bullet nonetheless could have been the result of a direct hit if the victim had his foot turned away from the shooter, or if he was walking, running or stumbling away from him at the time the shot was fired. She also testified that she could not positively state whether the bullet deflected upward off a bone in Johnson’s foot after entry. The second bullet that struck Johnson entered the right side of his neck, traveled downward, severed his subclavian artery, pierced his left lung, deflected off one of his ribs, and exited near his left armpit.

The State rested after it called Dr. Jones; defendant presented no evidence in his own defense. The jury found defendant guilty of murder, and after hearing argument in aggravation and mitigation, the trial court sentenced him to 30 years in the custody of the Illinois Department of Corrections to be followed by three years of mandatory supervised release.

I

Defendant claims that the evidence presented against him was insufficient to establish his guilt beyond a reasonable doubt. The standard of review applicable to insufficiency of the evidence claims is:

“[WJhether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] The reviewing courts apply this standard regardless of whether the evidence is direct or circumstantial. [Citations.] This standard of review does not allow the appellate court to ‘substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses [citation].’ [Citation.] Therefore, [a reviewing] court 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 [citation].’ [Citation.]” People v. Sutherland (1992), 155 Ill. 2d 1, 17.

In the case at bar, defendant claims that he was not proven guilty beyond a reasonable doubt because: (1) the inconsistent testimony of the State’s eyewitnesses regarding the number of shots fired and the position of Johnson’s body when he was wounded rendered the evidence too improbable to sustain his conviction; and (2) the State failed to establish that defendant had any motive to kill Johnson. We find both of these arguments to be totally baseless.

Regarding defendant’s first argument, it is axiomatic that it is the sole province of the jury to determine the credibility and weight of the witnesses’ testimony and to resolve any conflicts therein. (People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267, 277; People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.) In this case, the jury heard the discrepancies in the witnesses’ testimony of which defendant complains and resolved that conflict in favor of the State. Certainly, we cannot say that its determination was so unreasonable that no rational trier of fact could have similarly concluded. The fact that the occurrence witnesses disagreed about the number of shots fired by the attackers and the position of the victim when he was attacked does not even come close to rendering this verdict inappropriate. It was perfectly reasonable for the eyewitnesses to the murder to be a bit confused as to how many shots were fired and exactly how the victim collapsed, since they were scattering for cover while defendant and Williams were pumping bullets at them from a distance of six to eight feet. More important, there was no inconsistency in the four eyewitnesses’ testimony that defendant walked up to Johnson, shot him in the neck, and then shouted to him “What’s up now, motherfucker?”

Defendant’s lack of motive argument is equally groundless. It is well established that “the State has no obligation to prove motive in order to sustain a conviction of murder.” (See, e.g., People v. Easley (1992), 148 Ill. 2d 281, 326, 592 N.E.2d 1036, 1056.) In any event, the State in the case did present a motive for the offense to the jury, i.e., that defendant was evicted from a party by the victim’s girl friend (Harris) because one of his “roadies” (Williams) was involved in a heated argument with a friend of the victim (Kelly). The fact that defendant did not actually argue with the victim does not negate the plainly evident reason for this homicide.

Accordingly, we find that the jury properly determined that the State sufficiently established defendant’s guilt beyond a reasonable doubt.

II

Defendant next asserts that he should be granted a new trial because the trial court allowed the prosecutor to ask the State’s expert witness, Dr. Jones, a hypothetical question which was not based on the evidence. We disagree. The colloquy of which defendant complains went as follows:

“[Prosecutor:] First of all, before I have you demonstrate, I would like to ask you if a person is standing, walking, [or] running, and another shoots a gun downward, is there anything unusual about the bullet entering the side of the foot and comes out [sic] the top of the foot, as opposed to the bottom of the foot?

[Defense Counsel:] Objection. That’s not the facts here.

[THE COURT:] Overruled.

[The Witness:] If an individual is running or walking or lifting their [sic] foot in a process of running or walking, there is nothing inconsistent with a bullet entering and traveling upward.

That’s perfectly consistent, if the foot is up in back or up in front.

It is possible for a bullet to enter on the medial aspect of the foot and travel upwards and exit on the top of the foot, as I have in this case.”

Our supreme court has stated that where an expert witness is asked a hypothetical question based on certain assumptions, “[a]s long as the hypothetical assumptions are within the realm of circumstantial or direct evidence, as supported by the facts or reasonable inferences, the question is permissible.” (Guardian Electric Manufacturing Co. v. Industrial Comm’n (1973), 53 Ill. 2d 530, 535, 293 N.E.2d 590, 594.) Furthermore, the assumptions suggested in a hypothetical question need not be undisputed but only supported by the record (Harris v. Day (1983), 115 Ill. App. 3d 762, 771, 451 N.E.2d 262, 267), and “[i]n presenting evidence by a hypothetical question, counsel propounding the question has a right to ask it, assuming only the facts as he perceives them to be shown by the evidence” (Johns-Manville Products Corp. v. Industrial Comm’n (1979), 78 Ill. 2d 171, 180, 399 N.E.2d 606, 611); opposing counsel may then challenge the controverted facts by presenting his own hypothetical questions to the witness on cross-examination. Hebeler v. Industrial Comm’n (1991), 207 Ill. App. 3d 391, 395, 565 N.E.2d 1035, 1037.

In the case sub judice, the prosecutor asked Dr. Jones to assume that Johnson was standing, walking or running when he was shot in the foot. The prosecutor’s assumption that Johnson’s feet were moving when he was shot by Williams was amply supported by the testimony that he was “stumbling,” “slipppng],” and/or “fallpng]” as he was being shot at. The facts here did not require the prosecutor to ask Dr. Jones to presume that Johnson was standing while he was being fired at from close range. We therefore find that the hypothetical question asked by the prosecutor was proper.

Furthermore, even were we to find that the trial court erred in allowing the prosecutor to ask the complained-of hypothetical question, the error was harmless beyond a reasonable doubt. (See People v. Gacy (1988), 125 Ill. 2d 117, 130-31, 530 N.E.2d 1340, 1345.) The question at issue here concerned the path of the bullet fired into Johnson’s foot by Williams, which clearly did not tarnish the fact that four eyewitnesses observed defendant shoot Johnson in the side of the neck from point-blank range.

Ill

Defendant’s final contention is that this cause must be remanded for new post-trial proceedings because a conflict of interest arose between him and his trial counsel after he filed a complaint with the Attorney Registration and Disciplinary Commission (ARDC) against him following the jury’s guilty verdict.

Our courts have invariably held that a per se conflict of interest between a defendant and his attorney is not created simply because the defendant claims that his representation was ineffective or because, as was done here, he files a complaint with the ARDC alleging the same. (People v. Nitz (1991), 143 Ill. 2d 82, 134, 572 N.E.2d 895, 919; People v. Carroll (1992), 260 Ill. App. 3d 319, 337-38; People v. Dean (1992), 226 Ill. App. 3d 465, 467, 589 N.E.2d 888, 890; People v. Jackson (1985), 131 Ill. App. 3d 128, 138, 474 N.E.2d 466, 474.) Instead, as our supreme court recently pronounced in Nitz, the trial court must conduct a preliminary investigation of the factual matters underlying a defendant’s claim, and:

“If the trial court *** determines [the defendant’s claim] to be spurious or pertaining only to trial tactics, no new counsel should be appointed to represent the defendant. If, however, the defendant’s allegations of incompetence indicate that trial counsel neglected the defendant’s case, the court should appoint new counsel to argue defendant’s claims of ineffective assistance of counsel [at the post-trial stage].” (Nitz, 143 Ill. 2d at 134, 572 N.E.2d at 919.)

(Accord People v. Parsons (1991), 222 Ill. App. 3d 823, 830-31, 584 N.E.2d 442, 447.) In Parsons, we recently held that “[i]t seems apparent from Nitz and is spelled out in Jackson (which the Nitz court cited approvingly) that there should be some interchange between the trial court and the defendant’s trial counsel to explain the complained-of possible neglect.” Parsons, 222 Ill. App. 3d at 830, 584 N.E.2d at 447-48.

An example of the proper “interchange” mandated by Nitz was illustrated in Carroll, where the trial judge asked the defendants to articulate the specific allegations of incompetence which they levelled in their ARDC complaints against their attorneys. (Carroll, 260 Ill. App. 3d 319.) The trial judge then determined after a brief discussion with the defendants that their complaints were based on trial strategy and were “spurious.” (Carroll, 260 Ill. App. 3d at 336-37.) Consequently, it refused to conduct a more protracted hearing on the question of counsels’ competence and allowed the attorneys to continue representing the defendants during the post-trial proceedings. Carroll, 260 Ill. App. 3d at 339-40.

In the case sub judice, defendant filed a complaint against his trial counsel after the jury’s verdict. Prior to the hearing on defendant’s post-trial motion for a new trial, defense counsel moved the trial court to withdraw as defendant’s attorney because of an alleged conflict of interest. The following discussion then took place:

“[THE COURT:] Is counsel prepared to argue the motion entitled Motion to Withdraw as Counsel?

[Defense Counsel:] I think under my obligation and responsibility for [defendant], I should complete my efforts on his behalf on the Motion for a New Trial as well as supplemental argument covering these points which were not specifically set out in the motion. Then perhaps I should address the Motion for Withdrawal.

[THE COURT:] I think that would be [sic] the cart before the horse. If there is going to be a Motion for New Trial, that would certainly reflect the presence of trial counsel. I think the motion to withdraw as counsel, since it has been filed at this time, should be addressed first.

[Defense Counsel:] The reason I say that is if [defendant] has to raise additional points, I should complete my job before review by other attorneys or offices reviewing my conduct and action.

[THE COURT:] I’ve had an opportunity to review the Motion to Withdraw as Counsel. [It] [s]eems to be predicated upon a simple situation that [defendant] has filed a complaint with the [ARDC], is that correct?

[Defendant:] Yeah.

[Defense Counsel:] Citing inappropriateness of my conduct on his behalf as well as allegations or innuendos of ineffectiveness.

[THE COURT:] Mere filings [sic] of a complaint to the [ARDC] in and of itself is not sufficient to predicate the withdrawal of the Public Defender’s Office as counsel in this matter, based on the motion as filed. If there are no other arguments, the Court is prepared to rule.

* * *

[Defense Counsel:] Your Honor, if he wishes to raise [the allegations in defendant’s ARDC complaint], Judge, the most appropriate place is post-trial proceedings, rather than raise those issues and perhaps be barred by waiving any appellate jurisdiction. I would suggest to the Court that any review by anybody concerning my conduct on behalf of [defendant] be done at the trial level.

[THE COURT:] The Court disagrees. They can look at all the transcripts, all the records, and see how the attorney did during the course of the trial and we’ll predicate a motion for new trial based on that. I don’t think that is necessary at this point. I don’t think that is the appropriate way to handle things. First of all, there has to be a preliminary showing before the [ARDC]. The mere feeling [sic] of that does not stop the proceedings here. The Public Defender’s Motion to Withdraw denied.

[Defense Counsel:] My personal motion to withdraw, Judge?

[THE COURT:] Denied.”

After this discussion, defendant’s trial counsel proceeded to argue on behalf of defendant a motion for a new trial and for mitigation in sentencing.

The trial court in this case properly determined that it was required to rule on defense counsel’s motion to withdraw before allowing him to argue the motion for a new trial on defendant’s behalf. It also correctly ruled that it was not required to conduct a protracted hearing to evaluate counsel’s performance during the trial. The trial court erred, however, in failing to make a preliminary inquiry, as required by Nitz, into the nature of defendant’s allegations in his ARDC complaint against his attorney in order to determine if a conflict of interest did in fact exist. Instead, the court simply ruled that the mere filing of an ARDC complaint did not automatically create a conflict of interest and that new counsel did not have to be appointed to argue defendant’s post-trial motion for a new trial. While the court was correct in ruling that defendant’s filing of an ARDC complaint did not create a per se conflict of interest, it could have created such a conflict depending on the nature of the allegations therein. If defendant’s charges were spurious or based on trial strategy, then new counsel need not have been appointed; but if they contained a colorable claim of attorney neglect, then new counsel should have been appointed to argue the ineffective assistance claim at the post-trial stage, since trial counsel obviously could not have been expected to argue in favor of his own allegedly ineffective representation.

Here, the record reflects that the court determined only on the basis of defendant’s counsel’s representations that defendant’s ARDC complaint alleged “inappropriateness of [counsel’s] conduct” and “allegations or innuendos of ineffectiveness.” Although these charges may have been spurious or based solely on trial tactics, it is not entirely impossible that they could have included a colorable claim of defense counsel’s neglect which would have required the court to appoint new counsel to argue the ineffective assistance of counsel claim at the post-trial stage. But because the trial court did not conduct the preliminary inquiry mandated by Nitz, it obviously had no way of making that determination. (See Parsons, 222 Ill. App. 3d at 831, 584 N.E.2d at 448 (“We reject the implication of the State at oral argument that the trial court was in a position to reject defendant’s factual contentions [of attorney neglect] *** based upon conduct of counsel at the trial when such conduct does not resolve or contradict defendant’s factual contentions”).) Accordingly, we find that the trial court erred in failing to conduct the necessary preliminary examination as to the factual basis of defendant’s allegations against his attorney before denying counsel’s motion to withdraw.

Furthermore, we cannot say, unlike the supreme court in Nitz, that this error was harmless beyond a reasonable doubt. In Nitz, the defendant complained that his trial counsel was incompetent for failing to call several witnesses who would have established a viable defense. (Nitz, 143 Ill. 2d at 133, 572 N.E.2d at 918.) After hearing argument, the trial court ordered that an evidentiary hearing be held at which a few of the witnesses identified by the defendant would be examined. The trial court, however, permitted the defendant’s trial counsel to examine on defendant’s behalf those witnesses. (Nitz, 143 Ill. 2d at 133, 572 N.E.2d at 918.) After hearing the testimony, the trial court determined that the defendant’s ineffective assistance claim was unfounded, thus denying his motion for a new trial. Nitz, 143 Ill. 2d at 133-34, 572 N.E.2d at 918.

Our supreme court held that the court erred in allowing the defendant’s trial counsel to examine the above-mentioned witnesses, as there was a conflict of interest between him and the defendant, counsel having, in effect, argued in favor of his own ineffectiveness. (Nitz, 143 Ill. 2d at 134-35, 572 N.E.2d at 919.) Nevertheless, the court found that the error was harmless beyond a reasonable doubt since there was no question but that the testimony given by those witnesses did not further defendant’s defense. (Nitz, 143 Ill. 2d at 135, 572 N.E.2d at 919.) Therefore, the court concluded, defendant was not prejudiced by the court’s failure to appoint new counsel to examine those witnesses. Nitz, 143 Ill. 2d at 135, 572 N.E.2d at 919.

In the case at bar, unlike Nitz, where our supreme court had before it a detailed factual basis for the defendant’s claim, we lack a predicate for determining whether the trial court’s failure to appoint new counsel for defendant was harmless in the absence of a record that would disclose to us the nature of the charges in his complaint. If his ARDC complaint had presented a cognizable charge of attorney neglect, then the court’s error in not appointing new counsel was not harmless, because that ineffective assistance claim was not, and could not have been expected to be, raised by his trial counsel in his post-trial motion for a new trial.

In sum, we find that the trial court erred in not making a preliminary inquiry into the nature of defendant’s ARDC complaint against his attorney, as required by Nitz, in order to determine if a conflict of interest existed between them which would have prevented defense counsel from adequately presenting defendant’s post-trial motion for a new trial. Since we cannot determine whether that error was harmless because the record is devoid of information indicating the nature of defendant’s allegations, we remand the cause to the trial court to reconsider counsel’s motion to withdraw and to determine the nature of defendant’s charges against his trial counsel. In so doing, we emphasize, as did the court in Parsons, that “we are not remanding for a full evidentiary hearing and appointment of counsel on the issue of trial counsel’s incompetence. Rather, we remand only for the purpose of the interchange [between the trial court and the defendant] mandated by Jackson and Nitz." (Parsons, 222 Ill. App. 3d at 831, 584 N.E.2d at 448.) If, on remand, the trial court finds defendant’s allegations against his attorney to be spurious or based solely on trial tactics, we expect that counsel’s motion for withdrawal will be denied. If after that interchange, however, the trial court finds that defendant presents a colorable claim of attorney neglect, then it should grant counsel’s motion for withdrawal and appoint new counsel for the purpose of pleading defendant’s ineffective assistance claim.

Affirmed in part; reversed in part and remanded for proceedings not inconsistent with the views expressed in this opinion.

HARTMAN and DiVITO, JJ., concur.

      At the time of the incident, all of the State’s eyewitnesses knew Matthews only as “Tony Pimp.”

      All of the occurrence witnesses stated that at the time of the incident, they knew defendant only as “Perch.”