author: JUSTICE RAKOWSKI

text:
      In re JOSEPH B., a Minor (The People of the State of Illinois, Petitioner, v. Phynise B., Respondent-Appellee (Joseph B., Appellant)).
    First District (6th Division)
    No. 1—92—1785
    Opinion filed February 19, 1993.

      Patrick T. Murphy, Public Guardian, of Chicago (Kathleen G. Kennedy and Ellen Gorin, of counsel), for appellant.
    Rita A. Fry, Public Defender, of Chicago (John T. Kennedy, Assistant Public Defender, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Minor-appellant Joseph B. appeals from an order of the circuit court dismissing the petition for adjudication of wardship filed in his behalf. He contends that the trial court’s decision was against the manifest weight of the evidence and in total disregard of his best interests.

On May 14, 1992, a petition for adjudication of wardship was filed on behalf of the minor-appellant. It alleged that the “minor is dependent in that the minor is without proper care because of physical or mental disability of his/her parent, guardian, or custodian in violation of Illinois Revised Statutes (1989), Chapter 37, paragraph 802 — 4(b).”

At a hearing on temporary custody, Department of Children and Family Services (DCFS) worker Lamont Gilmore testified that the minor was born on May 9, 1992, suffering from multiple withdrawal symptoms. The minor’s mother, respondent herein, tested positive for cocaine at the time of his birth, but the minor’s test results were negative. Dr. Jain, the child’s doctor, told Gilmore that either respondent’s medication accounted for the child’s negative toxicology and withdrawal symptoms, or the withdrawal symptoms could have resulted from the prior use of some other drug that was not present in his system at the time he was tested. Gilmore also testified that a hospital social worker told him that the child’s mother was a schizophrenic who displayed erratic behavior. The social worker expressed her concern about the risk of harm to the child in respondent’s care.

Gilmore stated that respondent lived in a room at a shelter where he believed that she was allowed to keep a child. He testified that respondent told him that she was currently involved with alcohol and that she had a problem with cocaine. She agreed that it might be best if DCFS took temporary custody of the child. She also told him that she was currently in a treatment program for her mental illness and did not feel quite ready for child care in light of her problem with substance abuse. Gilmore testified that Reverend Dorothy Hinley from the shelter told him that respondent’s behavior was erratic and that she brought drugs and alcohol into the shelter. The shelter staff also had serious concerns about respondent bringing the child to the shelter. Gilmore recommended that the DCFS be given temporary custody of the child. He stated that his concern about the risk to the child was exacerbated by the fact that another child had already been removed from respondent’s custody.

Following argument, the trial court ordered that the child be retained in protective custody and continued the case until May 15, 1992, at which time it appointed a temporary custodian for the child without prejudice to the mother. However, on May 18, 1992, the trial court ruled that there was no probable cause to believe the child was neglected or dependent, and the court vacated the temporary custody order and dismissed the petition for adjudication. Relying on Nyce, the trial court stated:

“The scope of the authority of the Circuit Court that deals with minors under Section 702 — 4 [currently 802 — 3] is limited to minors who are actually neglected and does not extend to those who are thought to be subject to neglect in the future.
That’s the first appellate court case from the State of Illinois, 1971, which to my knowledge has not been reversed in any fashion or modified in any drastic fashion at all.
We cannot conceive of how the allegations of the petition could have been established in a case such as the present where it is clear from the record that the parent never had custody of the child.”

See In re Nyce (1971), 131 Ill. App. 2d 481, 487, 268 N.E.2d 233.

Initially, respondent contends that this appeal is not from a final order and should not be allowed. However, the supreme court has previously considered the issue in In re J.J. (1991), 142 Ill. 2d 1, 12, 566 N.E.2d 1345, and determined that the dismissal of a petition for adjudication of wardship, even without prejudice, is final as to the child.

In Illinois a trial court’s findings concerning a petition for adjudication of wardship will not be disturbed on appeal unless contrary to the manifest weight of the evidence. (In re T.H. (1986), 148 Ill. App. 3d 877, 882, 499 N.E.2d 988.) The best interest and welfare of the child is the standard applicable to proceedings under the Juvenile Court Act. (In re Stilley (1977), 66 Ill. 2d 515, 521, 363 N.E.2d 820.) “In any hearing under this Act, proof of the abuse, neglect or dependency of one minor shall be admissible evidence on the issue of the abuse, neglect or dependency of any other minor for whom the respondent is responsible.” (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 18(3).) “When faced with evidence of prior abuse by parents, the juvenile court should not be forced to refrain from taking action until each particular child suffers an injury.” In re Brooks (1978), 63 Ill. App. 3d 328, 339, 379 N.E.2d 872.

In the case at bar the trial court relied heavily on Nyce, which held that section 2 — 4 of the Juvenile Court Act (Ill. Rev. Stat. 1967, ch. 37, par. 702 — 4), now section 2 — 3 of the Juvenile Court Act (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 3), was limited to minors who were actually neglected and did not extend to those who are thought to be subject to neglect in the future. (131 Ill. App. 2d at 487.) However, in that case there was no evidence of prior abuse or neglect of another child by the parent or the removal of that child from the home as we have in the instant case. Further, the case at bar does not involve neglect under section 2 — 3 of the Act as in Nyce, but dependency under section 2 — 4. There a dependent minor is defined as one “who is without proper care because of the physical or mental disability of his parent.” (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 4(b).) We know of no case law, nor has the respondent presented us with any, that holds that a child must be in the custody of his mentally disabled parent before he can be declared dependent. Such a holding would fly in the face of the purpose of the Act, which is to secure care for each minor that “will serve the moral, emotional, mental, and physical welfare of the minor.” Ill. Rev. Stat. 1991, ch. 37, par. 801 — 2(1).

Here, the evidence clearly indicated that respondent was seriously mentally ill and exhibited erratic behavior as well as abusing alcohol and drugs. The social workers, who had knowledge of her behavior, believed that she was not capable of caring for her child. It was also reported that the administrator and the staff of the shelter where respondent resided had serious concerns about respondent bringing the child there. We find that the standard recited in Nyce was not applicable to this case and that the trial court erred in dismissing the petition for adjudication of wardship.

Accordingly, the judgment of the circuit court is reversed, and the matter is remanded for further consideration in light of this order.

Reversed and remanded.

McNAMARA, RJ., and GIANNIS, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE TULLY

license: Public Domain

text:
    FRANK N. KOKOSZYNSKI, Indiv. and as Special Adm’r of the Estate of Marlene Kokoszynski, Deceased, et al., Plaintiffs-Appellants, v. CHICAGO SOUTH SHORE AND SOUTH BEND RAILROAD, Defendant-Appellee (Howard T. Menn, Defendant).
    First District (3rd Division)
    No. 1—90—2489
    Opinion filed February 17, 1993.

      Monico, Pavich & Spevack, of Chicago (Robert J. Pavich and Mary G. Broderick, of counsel), for appellants.
    Johnson & Bell, Ltd., of Chicago (Robert M. Burke and Thomas H. Pegan, of counsel), for appellee.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

This is a wrongful death action arising out of the automobile collision and subsequent death of Marlene Kokoszynski. Plaintiff asserts that the accident would not have occurred if defendant had complied with its duty to provide a safe means of ingress and egress to its place of business. The trial court entered summary judgment in favor of defendant railroad, finding that defendant could not be held liable for an automobile collision which occurred on property that was neither owned nor controlled by defendant. Plaintiff appeals from this order, asserting that there exists a genuine issue of material fact as to whether in fact defendant effectively controlled the property where the collision occurred.

The undisputed facts are as follows. In the early morning of January 26, 1985, decedent, Marlene Kokoszynski, drove her car from the parking lot of defendant, located just before the dead end on 135th Street. In order to exit the lot, decedent turned left onto 135th Street. The portion of 135th Street to decedent’s immediate right had been closed to through traffic by the City of Chicago. A small strip of 135th Street was left open to allow entrance to and exit from defendant’s parking lot. Decedent proceeded from 135th to Brainard Avenue, where she attempted to turn north onto Brainard, when she collided with a southeast bound car driven by Howard T. Menn. According to decedent’s complaint, she could not see the oncoming car of Menn due to the cars parked along that portion of 135th Street used as an entrance to defendant’s parking lot. (See map below.)

Plaintiff’s original complaint alleged that defendant breached a duty of providing a reasonably safe means of ingress and egress to its place of business by: (1) failing to provide adequate parking space in the lot abutting 135th Street, causing the overflow of cars to be parked along the entranceway (135th Street) to the lot; (2) failing to prevent customer/employee cars from parking along the sides of 135th Street, when it knew or should have known that such cars blocked the view of drivers attempting to exit the lot onto Brainard Avenue; and (3) failing to post warning signs to patrons regarding oncoming traffic as they exited onto Brainard Avenue.

In its motion for summary judgment, defendant railroad claimed it owed no legal duty to plaintiff-decedent on the basis that the accident occurred on 135th Street, a public street, neither possessed nor controlled by defendant. According to plaintiffs, the critical section of 135th Street at issue had been appropriated by defendant for its own business purposes, as an entrance/exit to its parking lot. Attached to defendant’s motion for summary judgment was a document from the Illinois Commerce Commission describing 135th Street as follows:

“[T]he City of Chicago proposes to introduce an ordinance into the City Counsel closing to vehicular traffic that portion of 135th Street from a point 50 feet west of Brainard Avenue to a point 141 feet west of Brainard *** at a point 50 feet west of Brainard Avenue the City of Chicago proposes to barricade 135th Street to prevent traffic from traversing the crossing, but still permitting access to a parking area off 135th Street ***.” (Emphasis added.)

In addition, plaintiffs introduced into evidence photographs of cars lining both sides of 135th Street into the parking lot and a sign facing 135th Street, viewable upon entrance to 135th Street from Brainard Avenue, which reads “South Shore [defendant] Patrons Only.” Plaintiffs assert that all of this evidence raised a genuine issue of material fact as to whether in fact defendant controlled or had appropriated 135th Street for its own purposes, and, thus, summary judgment was improperly granted in favor of defendant.

The purpose of a summary judgment proceeding is to determine whether there exists a triable issue of fact for a jury. (Ashland Chemical Co. v. Pollution Control Board (1978), 57 Ill. App. 3d 1052, 373 N.E.2d 826; Gribben v. Interstate Motor Freight System Co. (1958), 18 Ill. App. 2d 96, 151 N.E.2d 443.) In assessing whether summary judgment should be granted, the court must consider all pleadings, affidavits, depositions and exhibits on file. (Silberstein v. Peoria Town & Country Bowl, Inc. (1970), 120 Ill. App. 2d 290, 257 N.E.2d 12; Halloran v. Belt Ry. Co. (1960), 25 Ill. App. 2d 114, 166 N.E.2d 98.) The decision to enter summary judgment involves an uneven balancing test whereby the pleadings are to be construed most strictly against the movant and most liberally in favor of the opponent. In order to grant summary judgment, there must be no doubt as to the movant’s right to judgment in its favor. In re Estate of Levy (1975), 27 Ill. App. 3d 362, 326 N.E.2d 503; Harp v. Gulf, Mobile & Ohio R.R. Co. (1966), 66 Ill. App. 2d 33, 213 N.E.2d 632.

The rule regarding premises liability in Illinois is clear. A landowner must use ordinary care to insure that its premises are reasonably safe for the use of invitees and to give adequate warning to invitees of dangerous or hidden conditions which may result in perilous injury to the unsuspecting invitee. (McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 272 N.E.2d 369.) The corollary to this axiom is that a landowner possesses a similar duty to provide a safe means of ingress and egress to the property owned or controlled by the inviten The limits of this duty must be determined by the facts of each case, but may go beyond the precise boundaries of such premises. Burke v. Grillo (1992), 227 Ill. App. 3d 9, 590 N.E.2d 964; see also Cooley v. Makse (1964), 46 Ill. App. 2d 25, 196 N.E.2d 396; Stedman v. Spiros (1959), 23 Ill. App. 2d 69, 161 N.E.2d 590; Thomas v. Douglas (1954), 1 Ill. App. 2d 261, 117 N.E.2d 417.

Based upon the foregoing guidelines, it is clear that defendant landowner owed a duty to the decedent of providing a safe ingress and egress to its parking lot and place of business. The fact that decedent was turning onto a public street, Brainard Avenue, from another public street, 135th Street, as opposed to the parking lot itself, is not dispositive of the duty issue. While it is true that defendant does not own 135th Street, plaintiff presented enough evidence to raise a genuine issue of fact as to whether defendant in fact controlled and maintained the applicable strip of 135th Street for its business purposes. It is undisputed by the parties that the City of Chicago closed off a large portion of 135th Street to through traffic, yet allowed one tiny strip— the entrance/exit to defendant’s parking lot — to remain open, not for the benefit of city traffic, but for the benefit of defendant’s parking lot patrons.

Based upon the evidence presented, we find that summary judgment as to the existence of a duty was improperly granted in favor of defendant. Defendant apparently allowed its patrons to park along 135th Street. Indeed, the sign “South Shore Patrons Only” may have encouraged patrons to park in the area along 135th Street. This presents a factual question as to whether defendant effectively expanded its parking lot by expropriating this strip of 135th Street for its own business purposes. The evidence in this case presents a genuine issue of material fact as to whether the property at issue was under the sole control and use of defendant railroad, at the time plaintiff turned onto Brainard Avenue. Moreover, whether the risks imposed upon decedent in leaving via this exit were unreasonable risks and whether defendant breached its duty to plaintiff in failing to provide a safe means of egress are further factual determinations for a jury. Garrett v. National Tea Co. (1958), 12 Ill. 2d 567, 573, 147 N.E.2d 367.

Based upon the foregoing, the order of the circuit court of Cook County granting summary judgment in favor of defendant is hereby reversed, and this cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

GREIMAN and CERDA, JJ., concur.


author: JUSTICE JOHNSON JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES BOHANAN, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—2672
    Opinion filed February 25,1993.
    Supplemental opinion filed December 1,1994.
    Michael J. Pelletier and Pamela Z. O’Shea, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a trial by jury in the circuit court of Cook County, defendant, James Bohanan, was convicted of attempted first-degree murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4(a), 9 — 1), two counts of armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2(1)), and two counts of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(a)). Judgment was entered on the count of attempted first-degree murder and on one count of armed violence, the other convictions merging. He was sentenced to two concurrent terms of 12 years each in the Illinois Department of Corrections.

On appeal, the singular issue on review is whether the trial court erred in finding divorce to be a sufficiently race-neutral reason to exclude two African-American women from the jury, but insufficient to exclude an African-American man from the jury.

We remand with directions.

Jury selection was conducted on June 21, 1990. The trial court questioned 27 venirepersons both generally and specifically. After completion of the questioning, the State exercised its peremptory challenges. Defense counsel subsequently made a Batson motion based on the State’s exclusion of two African-American women and one African-American man. The trial court asked the prosecutor for “some cogent reasons.”

In response to this request, the prosecutor stated that the two women were divorced and that they paid particular attention to defense counsel. He also stated that the women, Barbara Morris and Doris Lammie, lived on the south side of the city in proximity to the scene of the attempted murder. The trial judge determined that although the two women did, indeed, live on the south side, they resided nowhere near the scene. He further refused to accept the fact that the women paid particular attention to defense counsel. Accordingly, he rejected these reasons for excluding the women. However, the trial judge never enunciated a specific ruling as to the sufficiency of divorce as a race-neutral reason for exclusion of the women and they did not sit on the jury.

The prosecutor also offered divorce as a reason for excluding the man, James Smith. Additionally, he stated that Smith slouched in his chair, rented his home, and was employed as a security guard. The trial court explicitly refused to accept all of the aforementioned reasons for rejecting James Smith and placed him on the jury. The prosecutor then withdrew his challenge to Smith and the jury was sworn.

Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, suggested that the use of peremptory challenges to systematically exclude African-Americans from the jury might violate the equal protection clause of the fourteenth amendment. This suggestion was codified over two decades later in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, which specifically prescribed a series of elements which must be successfully fulfilled before a finding of purposeful discrimination is leveled against a prosecutor.

A Batson prima facie case of intentional discrimination is established by the initial showing that the defendant and the excused venirepersons are members of a cognizable racial group. Secondly, the defendant must demonstrate that all relevant circumstances create an inference of discrimination in the exclusion of veniremembers based on race. Relevant circumstances may include a pattern of strikes against black jurors, or a prosecutor’s questions and statements to the venire during examination which may reflect the existence of discrimination. It is the province of the trial court to determine whether the defendant has proved his prima facie case. People v. Evans (1988), 125 Ill. 2d 50, 63; see also People v. Fauntleroy (1991), 224 Ill. App. 3d 140; People v. Lovelady (1991), 221 Ill. App. 3d 829; People v. Walls (1991), 220 Ill. App. 3d 564.

If a prima facie case is deemed established, the onus is on the prosecutor to articulate race-neutral explanations for the exclusion of the challenged venirepersons. The trial court must then make an assessment of the prosecutor’s proffered reasons rebutting the defendant’s case in consideration of all the relevant circumstances. Ultimately, the trial court will make a final determination as to the existence of purposeful discrimination. (People v. Valentine (1991), 221 Ill. App. 3d 1082, 1084; People v. Johnson (1991), 218 Ill. App. 3d 967, 977.) If the trial court finds, prima facie, that the prosecutor purposefully discriminated in the selection of veniremembers, the defendant’s conviction will be reversed. Batson v. Kentucky (1986), 476 U.S. 79, 100, 90 L. Ed. 2d 69, 90, 106 S. Ct. 1712,1725.

In the case at bar, the trial court failed to conduct a hearing in accordance with the aforementioned procedure as promulgated by Batson. The record illustrates the following dialogue:

“[DEFENSE COUNSEL]: Judge, I have a motion for Batson which is commonly known as a Batson motion. It is my understanding that the State has excluded two black females.

[THE COURT]: And one black male.

[DEFENSE COUNSEL]: And one black male.

[THE COURT]: Mr. State’s Attorney, give me some cogent reasons.”

It is evident from this exchange that the trial judge never allowed defense counsel to establish a prima facie case. “It is settled that a Bat-son prima facie case cannot be established merely by the numbers of black venirepersons stricken by the prosecution.” (People v. Lovelady (1991), 221 Ill. App. 3d 829, 837; see also People v. Evans, 125 Ill. 2d 50 (and cases cited therein).) Defense counsel should have been afforded the opportunity to demonstrate the existence of “all relevant circumstances” giving rise to an inference of purposeful discrimination. Inappropriately, the trial court overlooked this crucial component in the Batson proceeding and immediately demanded “some cogent reasons” for the exclusion of the venirepersons. The trial court’s actions, in this instance, indicate an unfortunate misunderstanding that numbers alone are sufficient to establish a prima facie case. People v. Mahaffey (1989), 128 Ill. 2d 388, 414.

Although the Batson Court declined to outline a procedure to implement its holding (see Batson, 476 U.S. at 99 n. 24, 90 L. Ed. 2d at 90 n. 24, 106 S. Ct. at 1725 n. 24), this “collapse” of the Batson procedural steps into an evaluation of State and defense contentions is incorrect. “It is clear from Batson *** that the Court envisioned a methodical step-by-step application of its standards for judging whether purposeful jury discrimination has occurred.” People v. Hope (1990), 137 Ill. 2d 430, 456.

The weighing of the State’s explanations at the prima facie stage of the proceeding is manifestly improper. This contemporaneous evaluation of the State’s explanations may not act as a thumb on the scales while a defendant’s own prima facie case is being weighed to see whether such explanations will even be required. (Hope, 137 Ill. 2d at 459.) Examination of the State’s reasons under these circumstances would, in effect, render the Batson standards insignificant. It is thus improper to allow the prosecutor’s explanations to interfere with the trial court’s evaluation of the defendant’s showing of a prima facie case.

Defendant places mistaken reliance on Hernandez v. New York (1991), 500 U.S. 352, 114 L. Ed. 2d 395, Ill S. Ct. 1859, in contending that a prima facie case was established regardless of the consolidation of the Batson steps. According to Hernandez, “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” (Emphasis added.) (Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866.) In the instant case, although the prosecutor offered reasons for the exclusion of the three venirepersons, the trial court never ruled on the ultimate issue of purposeful discrimination. Consequently, as the second part of the Hernandez test remained unsatisfied, the prima facie showing never became moot.

The State relies on People v. Garrett (1990), 139 Ill. 2d 189, and maintains that because the trial judge never ruled that a prima facie case had been established, we should consider, in view of all the circumstances, whether he could have concluded the existence of a prima facie case. The State further argues in accordance with Garrett that if we find that a prima facie case has not been established, there is no need to remand the cause for a “proper Batson hearing.” Garrett, 139 Ill. 2d at 205.

The facts in Garrett are easily distinguishable from those in the case at bar. In Garrett, the court gave the defendant a full opportunity to make his prima facie case of discrimination after which the court determined that he failed to meet his burden. In the instant case, conversely, defendant was never afforded an opportunity to establish a Batson prima facie case. This lack of opportunity is a direct consequence of the trial court’s premature request for the prosecutor’s reasons for excluding the veniremembers.

Furthermore, Batson clearly places the duty of determining the existence of a prima facie case on the trial court. Here, the court never made such a determination. We are not unmindful of defendant’s failure to err in this instance. As the threshold issue of a prima facie case was unresolved, we remand for an expedited hearing in accordance with the Batson decision.

Initially, the trial court must make a finding regarding defendant’s showing of a prima facie case. At this stage of the proceeding, defendant may substantiate his claim with any additional evidence of purposeful discrimination. If the prima facie burden is met, the trial court must then consider the second prong of the test, i.e., evaluating the race-neutrality of the State’s proposed reasons for the exclusion of the venirepersons.

Upon completion of the preceding steps, the trial court must make both credibility and factual determinations based on the proffered evidence. These findings, including the record, shall be filed with the clerk of this court within 60 days of the filing of this opinion. This court retains jurisdiction for the purpose of reviewing the trial court’s determinations pursuant to Batson. Both defendant and the State will be permitted to submit supplemental briefs relative to this issue in this court. People v. Jones (1988), 177 Ill. App. 3d 663, 669; People v. Buckley (1987), 168 Ill. App. 3d 405, 413.

Remanded with directions.

HOFFMAN and CAHILL, JJ., concur.

SUPPLEMENTAL OPINION

JUSTICE JOHNSON

delivered the opinion of the court:

Defendant now appeals from the remandment, asserting (1) the trial court considered the race-neutral reasons for excluding the jurors in question before he was afforded an opportunity to establish his prima facie case of purposeful discrimination; and (2) he was denied effective assistance of counsel as defense counsel invited the trial court to disregard this court’s opinion and failed to present evidence to support his argument.

In our original opinion (Bohanan I), we found that the trial court improperly considered the State’s race-neutral reasons for using its peremptory challenges to exclude the particular venirepersons before allowing defendant to demonstrate a prima facie case of purposeful discrimination. We clearly stated:

“The weighing of the State’s explanations at the prima facie stage of the proceeding is manifestly improper. This contemporaneous evaluation of the State’s explanations may not act as a thumb on the scales while a defendant’s own prima facie case is being weighed to see whether such explanations will even be required. [Citation.] Examination of the State’s reasons under these circumstances would, in effect, render the Batson standards insignificant. It is thus improper to allow the prosecutor’s explanations to interfere with the trial court’s evaluation of the defendant’s showing of a prima facie case.” People v. Bohanan (1993), 243 Ill. App. 3d 348, 351.

Although we clarified the error in the trial court’s conduct in Bohanan I and even outlined the procedure to be followed on remand, the trial court failed to conduct the hearing in accordance with our mandate. Initially, defense counsel asserted that a prima facie showing of purposeful discrimination could be made considering the transcript of the pretrial proceedings. The prosecutor was then allowed to respond to defense counsel’s argument and he contended that the incompleteness of the record made it impossible to establish a prima facie showing. At the conclusion of the arguments of both sides, the trial court stated in relevant part: “I find that there has been no prima facie case that has been made. I believe that the totality of the circumstances *** shows that there was no purposeful discrimination shown in the exercise of the [peremptory] challenges against these women.”

Consequently, the trial court committed the same error at the hearing on remand as it did in the original pretrial proceeding. It again improperly considered the State’s race-neutral reasons for excluding the venirepersons before ruling on the question of defendant’s establishment of a prima facie case. In fact, the trial court explicitly and erroneously stated: “I believe that this Court is allowed to listen to the explanations of the State in trying to arrive at a decision as to whether or not there is a prima facie case and by eventually ruling — saying there was no Batson finding, because I didn’t use the actual word there is no prima facie case.” This procedure is precisely such that this court characterized as “manifestly improper” (People v. Bohanan (1993), 243 Ill. App. 3d 348, 351), and such that this court specifically directed the trial court to correct at the Batson hearing on remand.

We unequivocally declared:

“Initially, the trial court must make a finding regarding defendant’s showing of a prima facie case. At this stage of the proceeding, defendant may substantiate his claim with any additional evidence of purposeful discrimination. If the prima facie burden is met, the trial court must then consider the second prong of the test, i.e., evaluating the race-neutrality of the State’s proposed reasons for the exclusion of the venirepersons.
Upon completion of the preceding steps, the trial court must make both credibility and factual determinations based on the proffered evidence.” Bohanan, 243 Ill. App. 3d at 352.

As the trial court neglected to follow our previous mandate, we reverse its findings and remand the cause for a second time and again instruct the trial court to follow the procedures we clearly articulated in Bohanan I.

Reversed and remanded with directions.

HOFFMAN, P.J., and CAHILL, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY GOODAR, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—2415
    Opinion filed February 25, 1993.
    Rehearing denied March 25, 1993.
    Rita A. Fry, Public Defender, of Chicago (Janet Stewart, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Rogelio Pena, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Anthony Goodar, was convicted of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(b)(8)), following a jury trial in the circuit court of Cook County. Defendant was sentenced to a three-year term in the Illinois Department of Corrections and subsequently entered an impact incarceration program. On appeal, defendant contends that (1) the trial court failed to properly instruct the jury; (2) he was denied a fair trial because the jury instructions broadened the charge against him; and (3) he was not proved guilty beyond a reasonable doubt.

We affirm.

On April 18, 1989, at approximately 8:30 p.m., Larry Mallory and O.C. Dorham visited a friend at 1380 East Hyde Park Boulevard in Chicago. At approximately 11:30 p.m., the two left their friend’s apartment and went to Mallory’s car, which was parked in the parking lot immediately across from the building. As Mallory attempted to pull out of the parking space, defendant’s car struck the left wheel base of Mallory’s car. Defendant quickly exited his vehicle and rushed toward Mallory. M.C. Martin was a passenger in defendant’s car. Defendant, using foul language, began threatening Mallory. As defendant advanced aggressively toward Mallory, Mallory asked defendant to calm down. Mallory also informed defendant that he was insured.

Meanwhile, a University of Chicago police officer happened by the scene. Defendant cursed at the officer. The officer stated that the Chicago police would have to handle the traffic matter and then left the scene.

Johnny Robinson, a 58-year-old security guard from the 1380 building, also approached the scene to investigate. Defendant cursed at Robinson and began advancing toward him. Robinson pulled out a knife in order to maintain some distance between himself and defendant. Robinson then returned to the building.

Mallory and defendant went inside the building and called police. They were told that they would have to drive to the police station. Dorham attempted to drive Mallory’s car and defendant followed in his car. After travelling approximately 20 feet, Dorham pulled over to the curb because the wheel and axle on Mallory’s car were bent, rendering the car immobile.

Defendant pulled his car alongside Mallory’s car. Mallory then got out of his car to inspect the damage. Dorham suggested that they all ride to the police station together in defendant’s car, but defendant refused. Defendant and Martin then attacked Mallory, hitting him in the head from behind. Mallory fell to the ground while defendant and Martin continued hitting and kicking him. Dorham attempted to stop the beating when Martin hit him in the eye. Mallory managed to get up, then limped across the street into the building. Mallory did not use any abusive language nor did he have anything in his hands.

Defendant followed Mallory inside the building where defendant grabbed Mallory’s coat and pulled it over his head. Defendant beat Mallory about his head and face. Defendant grabbed a stick and continued beating Mallory until he lost consciousness. Robinson, who was inside the building, called the police.

Dorham went to the building and looked for Mallory. Defendant came toward Dorham with what appeared to be a broom or mop handle. Defendant and Martin then slammed Dorham against the wall, during which time the police arrived. Dorham later found Mallory, who was bleeding from the eyes.

At approximately 11:50 p.m., Chicago police officer Steven Woods responded to an assignment to investigate a disturbance at 1380 East Hyde Park Boulevard. When he arrived, the officer observed defendant and Martin shoving Dorham against a wall. Officer Woods did not include this observation in his written police report. As the officer approached, defendant was hostile towards him. The officer observed both defendant and Martin with money in their hands. Officer Woods also heard Martin telling defendant to return the money to Dorham.

Officer Woods placed defendant and Martin under arrest. The officer noticed that both defendant and Martin had been drinking. The officer also noticed that defendant had no injuries or marks on his face.

At trial, defendant testified that after the accident in the parking lot with Mallory, he was upset but did not threaten Mallory. Defendant stated that after he and Dorham attempted to drive the two cars to the police station, Dorham pulled Mallory’s car to the curb because it had become disabled. According to defendant, he was inspecting the damage when Mallory kicked him in the groin. The two then began fighting. Mallory fell to the ground and defendant was over him. Mallory got up and ran inside the building, and defendant followed because he did not want Mallory to “get anything like a gun or a knife.”

Defendant further testified that after he entered the building, Mallory attacked him with a mop handle and the two began to fight. Mallory asked defendant to stop hitting him. Defendant’s money then fell from his pocket and he backed away from Mallory. Martin and Dorham subsequently entered the building. Martin was helping defendant pick up his money when the police came in. In response to Martin’s requests that defendant return the money to Mallory, defendant claimed the money belonged to him. Defendant showed the officer a paycheck stub which he cashed the day before. Defendant also stated that he never threw Dorham up against the wall and that Robinson never pulled a knife on him.

Also at trial, the parties stipulated to the testimony of Barry Shack, the owner of a currency exchange, that defendant cashed a $792.44 payroll check on April 17, 1989. After both sides made closing arguments, the judge instructed the jury, which found defendant guilty of aggravated battery as to Mallory. The trial court later sentenced defendant to three years in the Illinois Department of Corrections.

Defendant first contends that the trial court erred by not sua sponte including in the jury instruction on self-defense a provision that deadly force could be used to prevent a felony. At the jury instruction conference, the State tendered, inter alia, an Illinois Pattern Jury Instruction (IPI) on the use of force in defense of a person. Defendant did not object to the instruction as tendered by the State, nor did he request that the self-defense instruction include a deadly force provision. Defendant also failed to raise any issue concerning the jury instructions in his post-trial motion.

The responsibility of preparing jury instructions rests with the parties and a trial court has no duty to alter instructions tendered by counsel. (People v. Barnard (1984), 104 Ill. 2d 218, 232.) Instructional errors are waived on review where a defendant fails to (1) object to allegedly defective jury instructions, (2) offer accurate instructions, and (3) raise the issue in his post-trial motion. (People v. Shields (1991), 143 Ill. 2d 435, 446.) Therefore, we hold that defendant has effectively waived this issue on review.

Additionally, we are unpersuaded by defendant’s argument that the trial court’s omission of the deadly force language from the self-defense instruction was plain error. This narrow exception to the waiver rule is used either to rectify grave errors in instructions, or where the evidence is evenly balanced such that fundamental fairness requires that the jury be properly instructed. (People v. Solis (1991), 216 Ill. App. 3d 11, 19.) We find the plain error doctrine inapplicable here, given that no substantial instructional error occurred and that the evidence strongly favors defendant’s guilt.

Second, defendant asserts that he was denied a fair trial because the jury instructions broadened the charge against him. Defendant claims that the use of Illinois Pattern Jury Instructions, Criminal, No. 11.09 (2d ed. 1981) (hereinafter IPI Criminal 2d) and IPI Criminal 2d No. 11.10 allowed the jury to convict him of an offense with which he was not charged.

At trial, defendant objected to use of IPI Criminal 2d No. 11.09 and argued that it was inconsistent with the evidence. On appeal, however, defendant now seeks to attack the language of the instruction, claiming it broadened the charge against him. As we noted in People v. Solis (1991), 216 Ill. App. 3d 11, 19, “[objections at trial on specific grounds waive all other grounds for objection.”

Also, in objecting to the use of IPI Criminal 2d No. 11.10, defendant failed to specify the grounds for his objection. A general objection to a jury instruction, made without specifying the basis therefor, fails to properly preserve the alleged error for review. (People v. Thomas (1991), 215 Ill. App. 3d 751, 760.) Moreover, defendant failed to raise the use of the relevant jury instructions in his post-trial motion. Defendant has waived the issue on review. We also find defendant’s claim of plain error to be without merit.

Lastly, defendant contends that he was not proved guilty of aggravated battery beyond a reasonable doubt. Defendant argues that the evidence at trial was conflicting on important issues of fact, creating a reasonable doubt of his guilt. In support, defendant cites differences between Mallory’s preliminary hearing testimony and his trial testimony. Defendant also points to discrepancies in facts as testified to by Mallory and Dorham concerning whether Mallory attempted to reenter his car after defendant first attacked him on the street.

The mere existence of conflicting evidence at trial does not require a reviewing court to reverse a conviction. (People v. Buchanan (1991), 211 Ill. App. 3d 305, 315-16.) Rather, issues of witness credibility, the weight given to witness testimony, and the resolution of conflicting evidence are determinations made by the trier of fact. (People v. Collins (1985), 106 Ill. 2d 237, 261.) A reviewing court will not substitute its judgment for that of the trier of fact with respect to such factual determinations. (People v. Bryant (1984), 123 Ill. App. 3d 266, 272.) A reviewing court will reverse a criminal conviction only where the evidence is so improbable that a reasonable doubt as to the defendant’s guilt exists. Collins, 106 Ill. 2d at 261.

Here, we hold that defendant was proved guilty beyond a reasonable doubt where the credible evidence presented at trial sufficiently supported his guilt. Both Mallory and Dorham testified that defendant threatened and physically attacked Mallory on the street. The evidence of defendant’s guilt is further strengthened by the testimony of several witnesses concerning defendant’s aggressive behavior. Both Officer Woods and Johnny Robinson testified that defendant was belligerent. Moreover, defendant admitted he followed Mallory inside the building after Mallory fled from defendant’s first attack.

A conviction based on credible evidence will not be disturbed merely because minor conflicts in the evidence were resolved in favor of the State. (People v. Boone (1988), 180 Ill. App. 3d 98, 107.) Here, given the credible evidence of defendant’s guilt, we are unpersuaded that the conflicts in the evidence cited by defendant raise a reasonable doubt as to his guilt.

For the aforementioned reasons we affirm the judgment of the circuit court.

Affirmed.

JIGANTI, P.J., and CAHILL, J., concur.


author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN SMITH, a/k/a Darryl Williamson, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 89—3178
    Opinion filed February 26, 1993.

      Rita A. Fry, Public Defender, of Chicago (Kim L. Sorrells and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Michael J. Pugh, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

After a jury trial, defendant Kevin Smith was found guilty of first-degree murder and armed robbery and was sentenced to concurrent terms of natural life for the murder and 30 years for the armed robbery. On appeal, defendant contends that the trial court abused its discretion in refusing to instruct the jury on the offense of second-degree murder and that the trial court abused its sentencing discretion.

On September 27, 1987, Vipinchada Patel was working as a cashier at the parking garage of the Days Inn Hotel in Chicago. Liaget Ali was working at the front desk of the hotel until approximately 11:40 p.m., when he went to the parking garage in order to retrieve his car. Ali gave Patel his ticket and then drove to the front of the hotel. As he was doing so, Ali heard a gunshot from the garage and 10 seconds later heard two more gunshots. Ali drove to the entrance of the garage and saw a black car and a light-colored car rush out of the garage. He went to the ticket booth and discovered that Patel had been shot.

The medical examiner who performed the autopsy on Patel testified that Patel had one gunshot wound to his right temple and one to his right upper back. The shots had been fired within two feet.

Detective Sikorski testified that the security video tape of the garage on the night in question showed that at 11:45 p.m., there was an automobile in the outbound lane of the ticket booth. The first digit or letter of the license plate could not be made out, but it was determined that the second letter was P, and the rest was either 7212 or 2212.

John Pemberton testified that on September 25, 1987, his car, with Illinois license plate number JP 2212, was stolen from the Days Inn Hotel parking garage. Officer Moran testified that cars on the fourth and fifth floors of the parking garage had been broken into. Fingerprints were lifted from these cars. The police also discovered two cars, in the area of 5429 West End in Chicago, which had been stolen from the Days Inn parking garage on the night in question. In one of these cars, the police recovered a parking receipt from the Days Inn and a Chicago-area street map.

Detective Rothgeb testified that he received a surveillance assignment of an automobile suspected in the homicide of Patel. This automobile was a dark blue Oldsmobile with Illinois license plate number JP 2212. The automobile was parked at 513 South Lotus Avenue, which was approximately one mile from 5547 West End and one-half mile from 5560 West Quincy. The next day Officer Lullo began surveillance at 5560 West Quincy. He observed a red van with the license plate number HRZ 3631 leaving that address. This license plate number matched that of the number written on the back of the ticket stub recovered from the Days Inn ticket booth, having an exit time of 11:39 p.m., dated September 27, 1987. Officers stopped the van and arrested defendant and Guy Murray. Andre Carroll was later found hiding under some towels in a bathroom at 5560 West Quincy and placed under arrest.

Officer Hawkins, one of the officers who arrested defendant, testified that he asked defendant “where he had obtained control over the van.” Defendant responded that a person, whose name he did not know, told him to move the van to the front of the house at 5560 West Quincy. Hawkins testified that defendant was limping and his leg seemed to be injured. Defendant told Hawkins that he had shot himself while standing on the corner of Madison and Parkside Avenues in Chicago. Defendant later told Officer Hawkins that he was shot on a street corner in Detroit.

On October 2, 1987, defendant was taken to Cook County Hospital in order to have a bullet removed from his leg. On that same day, Officer Collins examined the 1987 Oldsmobile, Illinois license plate JP 2212, and discovered a bloodstain on the driver’s front seat. A bloodstain was also found on the passenger side front seat of the van. The ticket stub recovered from the ticket booth had Andre Carroll’s fingerprints on it. The palm print recovered from the Oldsmobile on the fifth floor of the parking garage was that of defendant.

Robert Smith, a firearms examiner, testified that the fired bullet which was recovered from the ticket booth, the bullet recovered from Patel's spinal cord, and the bullet removed from defendant’s leg were all fired from the same gun.

After defendant was taken to the police station and given his Miranda warnings, defendant gave a statement that he lives in California and came to Chicago with four men in order to rob a jewelry-store. On September 27, 1987, defendant and three other men set out to steal three cars for use in robbing a jewelry store. All four men rode in a van driven by “Truck.” “Truck” brought along a .38 revolver and set it on the floor. Defendant picked up the gun and put it by his right side. The four men decided to steal cars from the parking lot at the Day’s Inn Hotel. They went to the upper floors of the garage and began breaking into cars. Defendant brought the gun with him “in case something went wrong.” After stealing three cars, the group began to leave. “Truck” paid Patel and drove out of the garage. Defendant did not have any money, so he got out of his car, pointed the gun at Patel and demanded he open the gate. Patel said, “Okay.” As he was getting back into the car, defendant put the gun back in his pocket and then he heard a gunshot. Defendant testified that at first he thought Patel was shooting at him. Defendant then shot Patel twice because he could not see Patel’s hands. As defendant and the other men fled the scene, defendant realized he had shot himself in the leg.

Defendant first contends that in light of the statement he gave to the police, the trial court should have instructed the jury on the offense of second-degree murder. The crime of second-degree murder occurs when an accused kills a victim with an unreasonable belief in the need for self-defense. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(2).) An instruction for self-defense is given in a homicide case where there is some evidence in the record which, if believed by the jury, would support a claim of self-defense. People v. Everette (1990), 141 Ill. 2d 147, 565 N.E.2d 1295.

Defendant relies on People v. McCarroll (1988), 168 Ill. App. 3d 1020, 523 N.E.2d 150, in support of his argument that a second-degree murder instruction should have been given. In McCarroll, defendant walked into a gas station with a loaded automatic pistol. Defendant testified that he had been jumped and stabbed the week before, and the gun was for his protection. Defendant gave the victim $20 for cigarettes and the victim refused to give him change, stating that he had received only $1. The victim swore at defendant and told him to leave, but defendant refused to do so. The victim reached for a gun, the defendant rushed at the victim and grabbed him from behind, causing the victim’s gun to fall to the floor. As they struggled, the victim began to pull out defendant’s gun from defendant’s waistband. As the men were struggling for the gun, the gun fired and struck defendant. Based on this evidence the court found that an instruction on involuntary manslaughter was justified.

We are not persuaded that McCarroll supports defendant’s contention that a second-degree manslaughter instruction should have been given since that case is factually dissimilar from the instant case. In McCarroll, there was some evidence that the victim was the initial aggressor. In contrast, defendant here confronted an unarmed victim with a deadly weapon and demanded that he open the exit gate to the parking lot. In addition, the evidence showed that throughout his entire encounter with Patel, defendant was the aggressor. (See People v. Sloan (1986), 111 Ill. 2d 517, 490 N.E.2d 1260 (defendant was not entitled to an instruction on self-defense or voluntary manslaughter because defendant was the aggressor and the victim’s slight display of force or resistance was provoked by defendant’s own conduct); People v. Shelton (1985), 140 Ill. App. 3d 886, 498 N.E.2d 879.) Defendant’s own statement revealed that defendant went to the Day’s Inn garage armed with a gun, pointed the gun at Patel and threatened to shoot Patel if he did not open the gate. Patel was unarmed and never took an aggressive role in the confrontation. Despite the fact that Patel complied with defendant’s order and opened the gate, defendant fired two shots into Patel at a close range. There is no evidence that defendant was retreating in any way when the shooting occurred. For these reasons, we find that the trial court did not abuse its discretion when it refused to instruct the jury on unreasonable self-defense.

Defendant’s next contention is that it was improper for the trial court to order him to appear and show his tattoos at codefendant’s trial without the benefit of counsel and then to consider his conduct at codefendant’s trial as a factor in aggravation at defendant’s sentencing hearing. Defendant was found guilty on May 11, 1988. Defendant’s sentencing hearing was continued so that codefendant’s trial could be completed before the trial court sentenced defendant. Codefendant Andre Carroll’s trial commenced on September 22, 1989. During codefendant’s trial, but outside the presence of codefendant’s jury, the State requested permission to exhibit defendant and his tattoos to codefendant’s jury in order to show that Carroll and defendant had common and unique tattoos, thereby linking Carroll to certain pieces of evidence. Codefendant’s attorney objected, noting that defendant “has a case in this courtroom relative to the same incident. He has a lawyer, Mr. King, who represents him, and Mr. King isn’t here.” The court overruled the objection, stating that because defendant was only being asked to display his tattoos, there was no violation of his fifth amendment rights. The trial court first ordered defendant to display his tattoos to the jury but defendant refused, stating that he was incriminating himself and further demanding that his lawyer be present. The judge then informed defendant that they would discuss, at defendant’s sentencing hearing, defendant’s conduct in the courtroom. After several minutes of heated discussion between defendant and the trial judge, codefendant’s attorney stated that he spoke with defendant’s attorney, Mr. King, and that Mr. King objected to defendant being brought before the jury as an exhibit. The trial court noted the objection but still ordered defendant to display his tattoos before the jury. Later, however, the court reconsidered the issue, noting that defendant’s conduct before the court indicated that he may act out in front of the jury and prejudice Carroll’s trial. The court therefore ordered defendant to display his tattoos to Detective Rothgeb, a prosecution witness, in front of the judge but outside the presence of codefendant’s jury. At this time, defendant made several disparaging and vulgar remarks to the trial court, while continuing to claim that he could not be forced to appear at codefendant’s trial and show his tattoos since his attorney was not present. The trial judge again stated that he would take defendant’s conduct into consideration when sentencing defendant. Detective Rothgeb later testified in codefendant Carroll’s trial to the presence of defendant’s tattoos.

At defendant’s sentencing hearing, the prosecutor reminded the trial court of what had occurred at codefendant’s trial, at the confrontation between the defendant and the judge outside the presence of codefendant’s jury, emphasizing defendant’s tattoos and the vulgar language the defendant used at that time when speaking to the trial judge. In sentencing defendant, the judge did not mention explicitly defendant’s offensive language referred to above, but clearly relied on defendant’s tattoos as a factor in aggravation at defendant’s sentencing hearing when he stated:

“It was in fact an ill wind of the strong smell of garbage that blew Mr. Smith and his cohorts to Chicago. He came to this state from California on a hit and run mission with the intention of reeking mayhem and then returning to California.
He bears on his body the tattoos which are obscene symbols of his absolute lack of respect for what is decent in society.
Mr. Smith chose to come to Illinois. He may now stay here. He is sentenced to natural life without parole on the murder.” (Emphasis added.)

While the court may consider defendant’s conduct and demeanor, as well as the evidence produced at trial, as factors in aggravation in sentencing defendant, the trial court’s observation of defendant usually occurs in a proceeding related to defendant’s own trial. What is unique and problematic about the issue presented here is the fact that defendant’s tattoos came to the trial court’s attention not during defendant’s trial or sentencing hearing, but when defendant was ordered to display his tattoos to the court in codefendant’s entirely distinct and separate trial over objections of codefendant’s counsel. When the trial court ordered defendant to provide his body as evidence in a proceeding unrelated to defendant’s trial and sentencing hearing and had this encounter with defendant, he stepped out of the role of an impartial arbiter and became a witness. The trial court is entitled to consider only that information that comes to its attention during the defendant’s trial and sentencing proceedings, where defendant has been provided with the safeguards he is entitled to receive, including the presence of an attorney.

Finally, the trial judge was not free to ignore the fact that although he was presently presiding over codefendant’s trial, he was yet to sentence defendant, who had already been convicted of Patel’s murder. Under those circumstances it was particularly important that the court avoid a confrontation with defendant in a related but separate proceeding at which he was without benefit of counsel. Assuming without deciding that a description of defendant’s tattoos were relevant, probative and admissible at codefendant’s trial, a method to obtain this evidence should have been devised that avoided the necessity of a confrontation between defendant and the trial judge who was to preside over defendant’s sentencing.

Accordingly, for the reasons set forth above, wé affirm defendant’s conviction and reverse defendant’s sentence and remand for a new sentencing hearing before a different judge.

Affirmed in part and reversed and remanded in part.

GORDON, P.J., and MURRAY, J., concur.


author: JUSTICE COUSINS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK C. MATA, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—0307
    Opinion filed February 26, 1993.
    Rehearing denied March 26, 1993.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Carol L. Gaines, and Pamela A. Paziotopoulos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COUSINS

delivered the opinion of the court:

Following a bench trial, defendant, Frank C. Mata (Mata), was found guilty of residential burglary. The trial court sentenced the defendant to a four-year term in the Illinois Department of Corrections which was to run consecutively with four- and seven-year concurrent sentences earlier imposed in an unrelated case.

The issues presented on appeal are: (1) whether it was error for the trial court to have found the defendant guilty of residential burglary beyond a reasonable doubt because the attached garage was not a “dwelling place”; (2) whether the defendant was not accountable because he was merely present at the crime scene and was also in an extremely intoxicated condition; (3) whether evidentiary weaknesses warrant a reduction of the degree of the residential burglary offense pursuant to Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)); (4) whether the defendant was denied a fair bench trial in violation of his Miranda rights when, for the limited purpose of impeachment, the trial court allowed cross-examination of the defendant about his refusal to make a written statement to the police; (5) whether the case must be remanded for resentencing because of deficiencies in the presentence report; (6) whether the trial court erred in denying the defendant credit for time served awaiting trial because he received credit for the same time against a sentence in another case; and (7) whether the defendant’s consecutive sentence should be modified to run concurrently.

We reverse.

Background

On December 9, 1988, complainant Loretta Berghoff testified that she returned home, parked her car in her garage, which is attached to her home, and went into her house. She did not close the main garage door. When she walked back out to the garage, the complainant testified that she saw two uninvited men in her garage. One of the gentlemen, codefendant Ben Oelrich, had his hands on her snowblower, which had been moved from the corner where it had been stored. The other man, defendant Mata, was “[rjight beside him or directly behind him.” On cross-examination, the complainant testified that the defendant was on the blacktop but that she felt that he was inside the garage.

The complainant further testified that she also noticed an unfamiliar truck which had been backed up to her garage. The top of the truck was raised and the tailgate was down. The complainant asked the men what they were doing. The codefendant replied that they needed directions. The complainant asked the defendants to leave her property. According to the complainant, as the codefendant started talking to the complainant, the defendant began to turn around and go back to the passenger side of the truck. The two men got into the truck and left.

The complainant called the police and gave a description of the truck and the two men. Shortly thereafter, an officer stopped the truck and passengers which matched the description. Another officer escorted the complainant to the area where the truck was stopped and the complainant identified the defendant and the codefendant.

The defendant and codefendant were charged with one count of residential burglary. The codefendant failed to appear prior to trial and a bond forfeiture warrant was entered against him. On January 11, 1990, the case proceeded to trial without the codefendant following a jury waiver by Mata. After hearing evidence and arguments from counsel, the trial court found the defendant guilty of residential burglary. The defendant filed a motion for a new trial which was denied. The defendant was sentenced to a four-year term in the Illinois Department of Corrections which was to run consecutively with four- and seven-year concurrent sentences earlier imposed on an unrelated case.

Opinion

I

Defendant contends that the trial court erred in finding him guilty of residential burglary where the building was not a “dwelling place.” We agree.

Section 19 — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3(a)) provides:

“A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.” (Emphasis added.)

Section 2 — 6(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 6(b)) provides:

“For the purposes of Section 19 — 3 of this Code, ‘dwelling’ means a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.”

A “dwelling” is a structure that one uses as a residence or living quarters in which owners or occupants actually reside. People v. Bales (1985), 108 Ill. 2d 182, 191, 483 N.E.2d 517, 521.

A garage, whether attached to various living units or not, cannot be deemed a residence or living quarters. People v. Thomas (1990), 137 Ill. 2d 500, 519, 561 N.E.2d 57, 64.

At the time of defendant’s trial, an Illinois Appellate Court case held that a burglary of an attached garage constitutes residential burglary. People v. Dawson (1983), 116 Ill. App. 3d 672, 675, 452 N.E.2d 385, 387.

However, as discussed in Thomas, Dawson was decided before Bales and also before the legislature adopted a new definition of a “dwelling.” (Thomas, 137 Ill. 2d at 520, 561 N.E.2d at 64.) Therefore, Thomas is now controlling.

The State contends that the defendant has waived this issue because defense counsel failed to object at trial or in his post-trial motion regarding this issue. This contention by the State is without merit. Plain error and sufficiency of the evidence to convict are two of the three exceptions reviewable to the waiver rule in criminal cases. People, v. Lighthall (1988), 175 Ill. App. 3d 700, 705, 530 N.E.2d 81, 84; People v. Enoch (1988), 122 Ill. 2d 176, 190, 522 N.E.2d 1124, 1132.

The State failed to prove an essential element of residential burglary. The defendant’s conviction must be reversed.

For completeness, notwithstanding our disposition of this issue, we will consider other issues raised in this appeal.

II

Defendant contends that his mere presence near the crime scene coupled with unrebutted evidence that he was intoxicated precluded the State from proving beyond a reasonable doubt that he was accountable for residential burglary. We disagree.

The reviewing court must consider that the circuit court and jury heard and saw the witnesses and that they were in the best position to judge the witnesses’ credibility, to determine the weight to be accorded the witnesses’ testimony, to decide the inferences to be drawn from the evidence, and to resolve all conflicts in the evidence. People v. Young (1989), 128 Ill. 2d 1, 48-51, 538 N.E.2d 461, 473-74.

Thus, the critical inquiry on review of the sufficiency of evidence to support a criminal conviction 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.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

A reviewing court is not to substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of witnesses and it is not to 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.” (Emphasis in original.) Young, 128 Ill. 2d at 51, 538 N.E.2d at 474.

Under Illinois law, a person is legally accountable for the conduct of another when:

“[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).

The intent to promote or facilitate a crime can be shown by evidence that the defendant shared the criminal intent of the principal or by evidence that there was a common design or community of unlawful purpose. (People v. Foster (1990), 198 Ill. App. 3d 986, 993, 556 N.E.2d 1214, 1219.) Absent - other circumstances indicating a common design, presence at the scene and flight therefrom do not constitute prima facie evidence of accountability. However, they do constitute circumstantial evidence which may tend to prove and establish a defendant’s guilt. (Foster, 198 Ill. App. 3d at 993, 556 N.E.2d at 1219.) Proof of community of purpose or common design may be drawn from the circumstances surrounding the commission of the act. (Foster, 198 Ill. App. 3d at 993, 556 N.E.2d at 1219.) Further, active participation has never been a requirement for the imposition of criminal guilt upon the theory of accountability. People v. Reid (1990), 136 Ill. 2d 27, 61, 554 N.E.2d 174, 190.

A trier of fact’s conclusion that a defendant is legally accountable for a criminal act will not be set aside on review unless the evidence is so improbable, unsatisfactory, or unreasonable that a reasonable doubt of the defendant’s guilt exists. Foster, 198 Ill. App. 3d at 993, 556 N.E.2d at 1219.

Here, the victim testified that she parked her car and went inside her home, leaving her garage door open. When she went back out into the garage, she noticed two gentlemen inside her garage. The defendant was one of these men. The other man, the codefendant, had his hands on the complainant’s snowblower. The defendant’s truck was backed up to the complainant’s garage with the tailgate open.

The defendant testified that he had been drinking heavily and was intoxicated, and when the codefendant asked to use the defendant’s truck, he obliged, insisting that the codefendant drive because the defendant was too inebriated. The defendant further testified that he fell asleep while the codefendant was driving. He awoke because he felt a draft and got out of the truck at the complainant’s residence to see what the codefendant was doing. The defendant testified that he never entered the garage.

The trial court stated:

“In order to believe the defendant, we would have to believe that he was drinking all day and he knew where he was going and how much he was drinking. By coincidence and very conveniently he happens to fall asleep on the way to the house and happens to wake up when the truck was in the driveway with the tailgate open and happens to be standing right at the back of the tailgate; while at the same moment the other defendant was moving the snowblower. It must have been 5 feet away, from my judgment of the pictures and the testimony. It seems like it had to be less than 10 feet. That’s what I would think. This is all at the same moment when the victim stepped into the garage and sees this.
I think its pretty clear what happened. They were driving by and saw this snowblower in that garage and they had the truck in a position where Mata was there waiting to hoist the snowblower into the tailgate.”

The trial court also had for consideration the size of the snow-blower and the probability or improbability that one man would be able to put the snowblower into the truck.

In accordance with Young, we may not set aside the trial court’s conclusion that the defendant is legally accountable.

Ill

Defendant next contends that evidentiary weaknesses warrant the reduction of the degree of the offense pursuant to Supreme Court Rule 615(b)(3). We disagree.

Illinois Supreme Court Rule 615(b)(3) provides:

“(b) Powers of the Reviewing court. On appeal the reviewing court may:

* * *

(3) reduce the degree of the offense of which appellant was convicted.” 134 Ill. 2d 615(bX3).

Residential burglary is a Class 1 felony, carrying a minimum sentence of four years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 3(b), 1005 — 8—1(a)(4).) Probation is not an available disposition. Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3(c)(2)(G).

The court imposed the minimum sentence of four years in prison on Mata. The charged offense occurred while Mata was on pretrial release for an unrelated narcotics charge. Therefore, the trial court was required by statute to order the four-year sentence to run consecutively with the seven-year sentence imposed on the narcotics conviction. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(h).

In the case at bar, when Mata asked if the sentences could run concurrently, the court responded: “I’m afraid not.” The court explained that it had no discretion and was ordering the sentences to run consecutively because the legislature had so required. The court also indicated that it wished that it could give Mata credit for time served in custody awaiting trial but could not. It made the following remarks:

“I feel it would be [sic] appropriate amount of time in terms of the sentences that he is in fact serving ***.”

The defendant contends that under circumstances such as these, it is appropriate for this court to exercise its authority under Supreme Court Rule 615(b)(3) and reduce the defendant’s conviction to a lesser included offense which permits a less severe sentence. The defendant cites People v. Jackson (1989), 181 Ill. App. 3d 1048, 537 N.E.2d 1054.

In Jackson, the defendant was convicted of residential burglary and sentenced to the minimum term of four years in prison. (Jackson, 181 Ill. App. 3d at 1049, 537 N.E.2d at 1055.) In imposing the sentence, the court noted that under the law it had no choice but to impose a four-year prison term and that if the law were otherwise, the court would certainly have considered a lesser sentence. On appeal, the defendant noted that in light of the trial court’s comments and the fact that the evidence of intent to commit a theft at the time of the entry was weak, a reduction of the degree of the offense pursuant to Supreme Court Rule 615(b)(3) was justified. Jackson, 181 Ill. App. 3d at 1050, 537 N.E.2d at 1056.

The appellate court agreed, holding that the court’s remarks, combined with the evidentiary weaknesses, warranted invocation of Supreme Court Rule 615(b)(3). Accordingly, the court reduced the defendant’s residential burglary conviction to the lesser included offense of criminal trespass to a residence and remanded for resentencing. Jackson, 181 Ill. App. 3d at 1052, 537 N.E.2d at 1056.

The defendant also cites People v. Coleman (1979), 78 Ill. App. 3d 989, 398 N.E.2d 185. In Coleman, the trial court, in imposing the minimum term of six years for armed robbery, stated that it would have imposed no greater than three years had the statute allowed such a disposition. (Coleman, 78 Ill. App. 3d at 992, 398 N.E.2d at 186.) Noting that the complainant’s testimony that the defendant was armed with a knife was corroborated only with a small puncture hole in the seat of the complainant’s truck (in which the crime occurred), the reviewing court reduced the offense to robbery and the sentence to three years.

The power granted in Supreme Court Rule 615(b)(3) is recognition that occasionally situations arise where an appellate court must be vested with the power and authority to reduce charges and sentences in the interest of fair and uniform administration of justice. This power should be exercised with caution and circumspection. Jackson, 181 Ill. App. 3d at 1051, 537 N.E.2d at 1056.

A comparison of the facts and circumstances in the Jackson and Coleman cases with the facts and circumstances of the case at bar indicates that the case at bar is inapposite to the Jackson and Coleman cases.

We note that the defendant contends that the evidence adduced against him would justify reducing the degree of his conviction to a Class C misdemeanor of criminal trespass to land. (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 3(a).) However, the trial court in the case at bar expressed no doubts about the strength of the evidence against the defendant. The trial court expressed concerns about the requirements of the consecutive sentence.

Although the defendant argues that this court should exercise its power to reduce his conviction to a lesser offense, we note that the defendant also contends that burglary is not the lesser included offense of residential burglary.

The burglary statute now provides:

“[Burglary] shall not include *** the offense of residential burglary as defined in Section 19 — 3 hereof.” Ill. Rev. Stat. 1991, ch. 38, par. 19 — 1.

Since the burglary statute provides that burglary will not include the offense of residential burglary, it can be and is now argued by the defendant that the legislature did not intend for residential burglary to include the lesser offense of burglary.

The defendant contends that had the legislature intended to make burglary a lesser included offense of residential burglary, the legislature would have defined residential burglary as “burglary of the dwelling place of another.” The defendant compares section 18 — 2 (armed robbery), section 20 — 1.1 (aggravated arson), and section 12 — 4 (aggravated battery). (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 2, 20 — 1.1, 12 — 4.) There is an obvious problem with this argument. There is no syllogism. The argument cannot be completely disregarded, however, because the Illinois Supreme Court has expressly declined to rule on this issue. People v. Chandler (1989), 129 Ill. 2d 233, 255, 543 N.E.2d 1290, 1299.

Although the legislature could make all arguments regarding this issue moot, the legislature has deemed it unnecessary to do anything further regarding the definition of residential burglary.

It is clear that, absent a special definition by the legislature, residential burglary is more inclusive than burglary. It is clear that residential burglary has all of the elements of burglary.

Accordingly, it makes more sense to construe burglary as a lesser included offense of residential burglary. A division of the Illinois Appellate Court has so held. People v. Johnson (1987), 129 Ill. App. 3d 399, 472 N.E.2d 854.

We now also hold that residential burglary includes burglary as the lesser offense.

We now consider whether this court should exercise powers of reduction under Illinois Supreme Court Rule 615(b)(3).

Our decision in this case is that the residential burglary conviction must be reversed. Relative to exercising appellate court powers of reduction, we note that the State chose not to charge the defendant with burglary. The State now contends that the defendant can be convicted of burglary. The problems and potential for abuse are obvious. Agreement with the contention of the State can allow the State to charge and argue only a greater offense, and upon failure of proof, obtain conviction in the appellate court of the lesser offense. No reduction is appropriate in this case.

Appellate courts must be circumspect about performing functions which are the primary province of the trial courts. Courts of original and appellate jurisdiction should confíne themselves to their respective spheres. (See People v. Wilk (1988), 124 Ill. 2d 93, 104, 529 N.E.2d 218, 221-22.) This is not a case where the appellate court must in the interest of fair and uniform administration of justice exercise the powers granted by Supreme Court Rule 615(b)(3).

IV

Defendant contends that he was denied a fair bench trial in violation of his Miranda rights when the trial court, for the limited purpose of impeachment, allowed cross-examination of the defendant about his refusal to make a written statement to the police. We disagree.

Assuming arguendo that the cross-examination by the prosecutor emphasizing that the defendant did not make a written statement was improper, there was no objection. The following cross-examination was conducted:

“Q. MR. KLAPMAN [Assistant State’s Attorney]: Do you remember Officer Perlini asking you to make a written statement and you refused; do you remember that?

A. MR. MATA [Defendant]: Yeah. I remember him asking me that.

Q. That jogs your memory that you did talk to Officer Perlini?

A. I don’t remember, but I remember the officer asking.

Q. Asking you to make a written statement, am I right?

A. Yeah.

Q. You chose not to make one, correct?

A. Yes.

Q. You chose not to make one; isn’t that correct?

A. I didn’t make one.

Q. You chose not to make one. He said will you give a written statement, and you said what?

A. I don’t think I have to make one.

Q. You of your own choice decided not to make a written statement?

A. I said I didn’t know how to make one. I didn’t know what to do.

THE COURT: This is just for the limited purpose.

MR. KLAPMAN: This is only for the purpose of impeachment, Judge.

The oral statement is already in that he made at the station. He already agreed that he made an oral statement to the officer and that he refused at the station.

THE COURT: I just want the record to be clear that I’m not holding his silence as anything to your putting forth the purpose that he knew what he was doing.

MR. KLAPMAN: It’s exactly for the purpose that he knew. Every question is for that purpose.”

We find that the defendant has waived this issue.

Generally, both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial in order to preserve such issue for review. People v. Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.

An exception to the waiver rule is where the complained-of error constitutes plain error or defects affecting the party’s substantial rights. People v. Young, 128 Ill. 2d at 39, 538 N.E.2d at 468.

The defendant contends that Doyle v. Ohio requires reversal because of plain error. (Doyle v. Ohio (1976), 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98-99, 96 S. Ct. 2240, 2245.) We disagree.

In Doyle, the United States Supreme Court held that it is a due process violation after the defendant has received his Miranda warnings for a prosecutor to comment on the defendant’s post-arrest silence for the purpose of impeaching defendant’s explanation at trial. Doyle recognized that a person has a constitutional right to remain silent and that violation of that right can be plain error.

However, if the defendant makes an exculpatory statement at trial which is inconsistent with a post-arrest statement made to police after being informed of his right to remain silent, the prosecutor may confront the defendant with the inconsistencies. People v. Rehbein (1978), 74 Ill. 2d 435, 443, 386 N.E.2d 39, 42; People v. Graves (1986), 142 Ill. App. 3d 885, 890-92, 492 N.E.2d 517, 521-23.

Also, where a defendant has expressly waived his right to remain silent and made a statement, the Doyle rule is generally inapplicable. People v. Trumbull (1978), 67 Ill. App. 3d 262, 264, 384 N.E.2d 842, 844; People v. Henson (1978), 58 Ill. App. 3d 42, 46, 373 N.E.2d 852, 855. People v. Jones (1992), 240 Ill. App. 3d 213, 221.

In the case at bar, we note that this was a bench trial and the trial court clearly indicated that, although the defendant had already made an oral statement, his silence would not be held against him. Assuming arguendo that the trial court erred in allowing such testimony, the error did not constitute plain error.

V

Defendant next contends that the case should be remanded for re-sentencing because the presentence report available to the court contained very little information and because the information provided was old. We disagree.

During the sentencing hearing, the following colloquy took place:

“MR. SOROSKY: [Defense Counsel]: I have a presentence report from Judge Morrisey’s case.

THE COURT: Do you want to proceed on that?

MR. SOROSKY: I have one here.

MR. KLAPMAN [Assistant State’s Attorney]: How about Judge Pomaro?

MR. SOROSKY: Fine.

THE COURT: It’s dated May 10th.

MR. KLAPMAN: May 10th of this year. I believe the defendant has been in custody since then and nothing has changed.

THE COURT: Mr. Sorosky, do you agree to that?

MR. SOROSKY: He was taken into custody the 2nd of May, I agree.

THE COURT: So we don’t need another presentence?

MR. SOROSKY: No.”

It is the obligation of the defendant to bring to the attention of the sentencing court any alleged deficiency or inaccuracy in the presentence investigation report. People v. Meeks (1980), 81 Ill. 2d 524, 533, 411 N.E.2d 9, 14; People v. Stewart (1989), 186 Ill. App. 3d 833, 837, 542 N.E.2d 915, 919; People v. Barfield (1989), 187 Ill. App. 3d 190, 206, 543 N.E.2d 812, 821.

Defendant has waived any purported deficiency in the presentence report with respect to its lack of current information.

VI

Defendant contends that the trial court erred in denying defendant credit for time served awaiting trial on a theory that he is not entitled to it because he received credit for the time against a sentence in another case. We disagree.

Sections 5 — 8—7(b) and (c) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 8—7(b), (c)) provide:

“(b) The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed ***.
(c) An offender arrested on one charge and prosecuted on another charge for conduct which occurred prior to his arrest shall be given credit on the determinate sentence or maximum term and the minimum term of imprisonment for time spent in custody under the former charge not credited against another sentence.”

The court, acting in conformance with the statute, denied defendant credit for time served while awaiting trial in this case. The statute required a consecutive sentence because defendant had already received credit for the time he had served while awaiting trial on another case for a previous offense.

In People v. Pluskis (1987), 162 Ill. App. 3d 449, 515 N.E.2d 480, the defendant contended that the trial court erred when it gave him credit against his sentence for time spent in jail as to one sentence and not as to both. The defendant in Pluskis received consecutive sentences. The Pluskis court held that

“[bjecause one sentence does not begin to run until the other has been completed, to give him credit as to both sentences would serve to reduce his sentence by twice the time of the defendant’s prior incarceration.” Pluskis, 162 Ill. App. 3d at 455, 515 N.E.2d at 484.

The court further deemed that such double credit was not intended. Pluskis, 162 Ill. App. 3d at 455, 515 N.E.2d at 484.

Following Pluskis, we find no error.

VII

Defendant finally contends that his consecutive sentences should be modified to run concurrently because the application of the statute was dictated by a factor which is completely arbitrary. We disagree.

People v. Williams (1989), 184 Ill. App. 3d 1094, 540 N.E.2d 832, is dispositive. In Williams, the defendant was originally charged with residential burglary. While on pretrial release in that case, the defendant committed the offenses of armed violence and aggravated battery. On December 30, 1987, the defendant was convicted of armed violence but was not sentenced. On January 5, 1988, he entered a plea of guilty to residential burglary and was sentenced to a consecutive term of 10 years’ imprisonment on the armed violence conviction.

The defendant in Williams argued that he was not eligible for a consecutive sentence because the statute in effect at the time of the offense did not provide for such and, therefore, the 10-year armed violence sentence should be vacated. (Williams, 184 Ill. App. 3d at 1095, 540 N.E.2d at 833.) At the time the offenses were committed, the Unified Code of Corrections, section 5 — 8—4(h), provided:

“If a person charged with a felony commits a separate felony while on pre-trial release, any sentence imposed upon conviction of that separate felony shall be consecutive to any sentence imposed upon conviction of the original felony.” Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(h).

The defendant in Williams contended that the statute contemplated that a defendant will be first convicted and sentenced for the original felony, and then convicted and sentenced for the felony committed while on pretrial release. The defendant contended that because he was first tried for the pretrial offenses rather than the original felony, a consecutive sentence was improper.

As in the case at bar, the defendant in Williams referred to the amendment of the Unified Code of Corrections, section 5 — 8—4(h). The amended provision provides:

“If a person charged with a felony commits a separate felony while on pre-trial release, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8 — 4(h).

Here, as in Williams, the defendant argues that the statute was amended because the legislature realized the quirk in the law applicable to a case such as his and, therefore, changed the statute to provide that a consecutive sentence can be imposed regardless of the order of the convictions. However, the court in Williams held:

“We find that section 5 — 8—4(h) as enacted at the time these offenses were committed required only that the defendant be sentenced on the original felony before he was sentenced for the felony committed while on pre-trial release. [Citation.] The unambiguous language of the statute imposed no requirement that the convictions occur in a certain order. Further, there is no convincing legal or practical rationale for implying such a requirement.” Williams, 184 Ill. App. 3d at 1096, 540 N.E.2d at 833.

The Williams court further held:

“With regard to the defendant’s argument that in amending the statute the legislature intended to effect some change in the law as it formerly existed, we note that a subsequent amendment may be interpreted to indicate a legislative intent to clarify the law rather than change it. [Citations.] Thus, to the extent one could argue that an ambiguity existed in the prior statute, the legislature’s amendment merely clarified its intent that in imposing a consecutive sentence the order in which convictions were entered would be of no effect.” Williams, 184 Ill. App. 3d at 1096-97, 540 N.E.2d at 834.

The court in Williams determined that the trial court properly imposed a consecutive sentence for the armed violence conviction.

Here, the offense occurred on December 9, 1988, which is subsequent to the enactment of the amendment. The applicable statute, therefore, includes the amendment which served to clear any alleged ambiguity in the statute. As such, the issue as to the chronology of sentencing is moot.

However, we note that, even if we were to apply the statute prior to amendment, the Williams case articulates that the order of convictions is irrelevant and that no convincing legal or practical rationale for mandating such order exists. Therefore, the trial court properly imposed a consecutive sentence where it was mandated by statute.

As the attached garage was not a dwelling, the trial court erred in finding the defendant guilty of residential burglary.

Reversed.

MURRAY and McNULTY, JJ., concur.