text:
    STEWART R. LANNERT, Plaintiff-Appellant, v. SHARON RAMIREZ, Defendant-Appellee.
    Fifth District
    No. 5—89—0797
    Opinion filed June 7, 1991.

      Frank H. Walker, of Mt. Vernon, for appellant.
    Freeark, Harvey, Mendillo, Dennis & Wuller, P.C., of Belleville (Ransom P. Wuller, of counsel), for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff, Stewart R. Lannert, filed suit in the St. Clair Comity Circuit Court on December 17, 1987, alleging that defendant’s negligent operation of her motor vehicle caused an accident in which he was injured. Defendant admitted negligence but denied causation and denied that plaintiff was injured or injured to the extent claimed.

The case was tried on June 20 and 21, 1989, and the jury returned a verdict in favor of the defendant from which the plaintiff now appeals. While plaintiff in his brief to this court alleges that the trial court committed numerous errors, his post-trial motion contained only a request for a new trial based on newly discovered evidence. “A party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (134 Ill. 2d R. 366(b)(2)(iii); see also Ill. Rev. Stat. 1989, ch. 110, par. 2—1202(b); Schultz v. Republic Insurance Co. (1984), 124 Ill. App. 3d 342, 464 N.E.2d 767.) Therefore, we consider only plaintiff’s argument that he should be granted a new trial based on newly discovered evidence.

Defendant testified by evidentiary deposition that the damage to her vehicle was around $200. After trial the plaintiff contacted defendant’s insurance company by telephone and was informed that the company had paid over $2,000 for property damage to defendant as a result of the accident. We note at this point that plaintiff asserts the trial court denied his post-trial motion without considering all repair bills. It is true that in its order denying plaintiff’s post-trial motion the court indicated, “Repair bill — $449.83 from Allstate.” However, a motion to reconsider was filed by plaintiff which informed the court that there were three repair bills totalling over $2,000. The trial court, after considering these bills, denied plaintiff’s motion to reconsider.

A motion for a new trial based on newly discovered evidence requires the movant to establish the following:

(1) the evidence is of such a conclusive character that it will probably change the result if a new trial is granted;
(2) it has been discovered since the trial;
(3) it could not have been discovered before trial with the exercise of due diligence;
(4) it is material to the issue; and
(5) it is not merely cumulative to the evidence at trial. (See Kaster v. Wildermuth (1969), 108 Ill. App. 2d 288, 291-92, 247 N.E.2d 431, 433.)

Courts do not look with favor on motions for new trials based on newly discovered evidence. Robbins v. Avara (1975), 28 Ill. App. 3d 292, 328 N.E.2d 95.

We conclude that the trial court did not abuse its discretion in denying plaintiff’s motion for a new trial based on newly discovered evidence. Had plaintiff exercised due diligence, the repair bills would have been discovered before trial. Plaintiff asserts that the filing of his Supreme Court Rule 237 (134 Ill. 2d R. 237) request for “tangible objects” was sufficient to meet the newly discovered evidence due diligence requirement.

Rule 237 notices are not discovery tools and should not be used as a substitute for the discovery rules. The plaintiff’s Rule 237 notice called for production of “tangible objects.” While this designation might arguably encompass the repair bills, it is certainly not specific as to their production.

If plaintiff had utilized the discovery procedures available to him such as a request to produce under Supreme Court Rule 214 (134 Ill. 2d R. 214) or a notice of a deposition under Supreme Court Rule 204 (134 Ill. 2d R. 204), and had defendant failed to produce the disputed bills pursuant to appropriate discovery requests, the result in this case might be different. Unfortunately, the record provided to us does not reflect whether plaintiff utilized these procedures. In the absence of such a record and with the trial court having found that defendant’s failure to produce the repair bills did not warrant a new trial, we are in no position to reverse the finding.

We realize that there is authority for the proposition that Rule 237 is an adjunct to the discovery rules. (Hawkins v. Wiggins (1980), 92 Ill. App. 3d 278, 415 N.E.2d 1179.) Obviously, while all rules are to be read in conjunction with one another, we are of the opinion that the primary purpose of Rule 237 is to furnish parties with an efficient method of obtaining the production of witnesses and tangible objects at trial. (We note that Rule 204(a)(3) (134 Ill. 2d R. 204(a)(3)) furnishes a similar procedure for use during discovery proceedings in a case.) We conclude that it is preferable for parties to utilize the discovery rules during the discovery phase of the litigation and to utilize Rule 237 only for the production of witnesses or tangible objects at trial.

We are not prepared to hold, however, that in every case all parties are required to demand the production of each and every document, photograph, and other tangible object during the discovery phase of the litigation. Such a procedure could result in unnecessary shuffling of paper and increase the costs of litigation. However, in this case the record does not reflect any attempt by the plaintiff to obtain the repair bills through the discovery process. A similar situation was presented to the court in Kaster:

“Nothing has been presented as new evidence discovered since the trial that could not have been obtained before trial by the diligent use of pretrial discovery procedures or even by the use of adequate pretrial investigation. As a protection against false or perjured testimony and as an aid generally in the search for truth in the trial of cases, the legislature and the court have provided broad and liberal avenues of discovery in civil cases. A litigant may elect to use these tools that have been provided. If instead he chooses to use the trial itself as a pretrial deposition to discover the testimony of a witness, he should not be rewarded with a new trial wherein he may present contradictory evidence discovered after trial which could have been discovered before trial by diligent preparation. It is a primary requisite to the allowance of a motion for a new trial on the grounds of newly discovered evidence that such evidence was not discoverable prior to trial by the exercise of ordinary diligence.” Kaster, 108 Ill. App. 2d at 293, 247 N.E.2d at 433-34.

In addition, when the bills were not forthcoming pursuant to plaintiff’s Rule 237 demand, the record does not reveal that plaintiff did anything to secure their production. Rule 237(b) (134 Ill. 2d R. 237(b)) specifically provides that failure to comply with a request under its provisions enables the aggrieved party to use all sanctions under Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)). These sanctions range from staying the action until the party complies with the request to striking the party’s pleadings and entering a default judgment. (134 Ill. 2d R. 219(c); see also Bluestein v. Upjohn Co. (1981), 102 Ill. App. 3d 672, 430 N.E.2d 580.) We note that this is not a case in which the party had no reason to believe that the documents existed, making it impossible for the party to realize the need for filing a motion pursuant to Rule 219(c). Plaintiff was clearly aware that repairs had been made on the vehicle prior to trial. He stated in his post-trial motion that defendant’s answers to interrogatories indicated that the vehicle had been repaired. Insofar as the record before us is concerned, the plaintiff failed to seek relief under Rule 219(c). He simply relied upon the defendant’s statements concerning the extent of damage to the vehicle.

In view of all of the foregoing, we conclude that the trial court properly denied his motion for a new trial; therefore, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RARICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL D. WHITELOW, Defendant-Appellant.
    Fifth District
    No. 5—89—0851
    Opinion filed June 10, 1991.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Dennis Middendorff, State’s Attorney, of Carlyle (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Lawrence O’Gara, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendant, Earl D. Whitelow, was convicted by a jury in Clinton County, Illinois, of attempted burglary in violation of section 8 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4), a Class 3 felony. He was also found guilty of possession of burglary tools in violation of section 19 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 2), a Class 4 felony. Defendant was sentenced to a term of four years’ incarceration in the Illinois Department of Corrections on the attempted burglary charge and two years’ imprisonment on the possession of burglary tools charge. Defendant appeals from his convictions, alleging that his trial counsel provided incompetent representation, that the trial court erred in denying his motion in limine which sought to preclude admission of defendant’s four prior theft convictions into evidence for purposes of impeachment, and that the prosecution’s closing argument denied defendant a fair trial because the prosecutor repeatedly referred to defendant’s prior theft convictions, juxtaposing them to discussions of proof of intent to steal in the instant case. Defendant seeks reversal of his convictions and remand for a new trial. We affirm the decision and sentence in the trial court.

The evidence, viewed in the light most favorable to the prosecution (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277), is as follows: Centraba police officer Ed Meyer testified for the State that on September 1, 1989, he was patrolling a shopping center parking lot at approximately 11:45 p.m. He observed the defendant standing beside the driver’s door of a small blue Datsun with license plates reading “Vaness 9” in front of a grocery store. He could see that defendant was attempting to run a clothes hanger down into the driver’s door of the automobile, apparently between the glass and the rubber rain gasket, above the lock in order to operate the locking mechanism of the door lock. Because Officer Meyer knew that the Datsun did not belong to the defendant, he pulled up within five feet of defendant and asked him what he was doing. Defendant immediately jerked the hanger away and approached the patrol car. Defendant said that he had locked his keys in the car and was attempting to get the keys out. At this point in time, Officer Meyer got out of his unit and approached the defendant. The defendant then claimed that the car belonged to his girlfriend. Officer Meyer, who knew defendant’s girlfriend and knew the automobile did not belong to her, challenged this statement. Defendant then asserted that perhaps he had some girlfriend other than the one known to the officer. Officer Meyer then placed defendant under arrest. He observed that the car held cassette tapes and speakers, and that there were no keys in the ignition or on the car seat. He stated that at the time he “couldn’t really notice much as far as any damage or scratches to the car.” The officer placed the clothes hanger with which defendant was attempting to open the automobile over the antenna on the back of the police unit at the time of the arrest and forgot to put it in the car when he drove the police unit back to the police station. He identified the coat hanger introduced into evidence as the hanger which he took from the defendant at the time of defendant’s arrest, but noted that it was not in the same condition as it was when he took: it from the defendant. He said that the hook at the top of the clothes hanger had fallen off, possibly while he was driving to the police station, the top of the clothes hanger had come apart, and one end was not as compressed as it was at the time he took it from defendant. He stated that to the best of his knowledge, no one had tampered with the clothes hanger and that he was 100% positive it was the same coat hanger he took from the defendant.

Vanessa Harrison testified that she owned the blue Datsun which defendant was attempting to unlock with the clothes hanger. She stated that she parked her car at the National food store at the shopping center after work, locked it, and put the keys in her purse. She testified that all of the windows were rolled up when she left the car, and that her car contained a stereo system, speakers, and tapes. She testified that she did not know the defendant and never gave him permission to try and break into her car. She stated that when she looked at her car in the parking lot at around midnight on September 1, she did not notice any damage to the car, but did notice that there were footprints on her car window which had not been there when she left it.

On cross-examination, defense counsel explored the officer’s statement on direct that he had not noticed scratches on the vehicle. The officer testified that when he first observed the vehicle, he did not detect any scratches, but when he checked later in daylight, there were some scratches on it. Defense counsel challenged this statement, citing the officer’s testimony at the preliminary hearing that there was no damage to the vehicle. The officer attempted to clarify his statement by saying that while he testified at preliminary hearing that there was no damage, he was now stating that despite the fact that the car had some small scratches, he did not consider it damage. When challenged again concerning his statement, the officer said “I didn’t say anything about any scratches then [at the preliminary hearing].” The officer had, in fact, testified at the preliminary hearing that, “[t]here was no damage to [the car], as far as you know, being scratched or anything by the hanger.”

Defendant took the stand and testified that on the date in question he drove to the Plaza Lounge, located at the Fairview Plaza Shopping Center, in his own car. He had been asked by a woman he first characterized as a girlfriend and then as a “girl I know” to help her get her keys from her blue Datsun. He looked in one blue Datsun for keys and was looking in the window of a second blue Datsun when he was arrested. He asserted that he had met the girl at the Farm Fresh and had been asked to drive out to the shopping center to look for her car. He claimed that 10 or 15 minutes elapsed between the time the girl at the Farm Fresh asked him to try and get her car open and the time he was arrested. He maintained that the coat hanger entered into evidence was not the hanger he had taken from the trunk of his car in order to attempt to open the girl’s car door. He claimed that at the time he was arrested, he was not doing anything to the car with the coat hanger, but was merely looking in the car to see if the keys were there.

Defendant admitted that he had been convicted of four charges of theft in Marion County. He also asserted that while he remembered that the police officer asked him some questions at the time of the arrest, he did not remember the nature of those questions. On cross-examination, he again claimed to have no recollection of the officer’s questions.

The jury received instructions on, inter alia, impeachment by prior inconsistent statements (Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 3.11)) and impeachment of a defendant by a previous conviction (Illinois Pattern Jury Instructions, Criminal, No. 3.13 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 3.13)). Following deliberation, the jury returned verdicts of guilty on both counts.

On appeal, defendant asserts that his trial counsel was incompetent for his failure to introduce Officer Meyer’s testimony at the preliminary hearing as substantive evidence at trial under section 115— 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.1). He asserts that had the officer’s testimony at preliminary hearing been introduced, it would have been demonstrated that Officer Meyer had either “a very convenient memory change or that Officer Meyer was a crafty liar.” In any event, he asserts that Officer Meyer’s credibility would have been completely destroyed had the prior inconsistent statement of Officer Meyer been introduced as substantive evidence.

In the context of the case at bar, defendant’s assertions are without merit. Defendant cites a number of cases in his brief in support of his argument, none of which would lead this court to believe that the outcome of the case at bar would have differed had the officer’s statement at the preliminary hearing been used by the defense as substantive evidence. The statement at the preliminary hearing could qualify as a prior inconsistent statement admissible as substantive evidence under section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.1) in that it is inconsistent with the officer’s testimony at trial, the witness was subject to cross-examination concerning the statement at trial, it narrates an event of which the witness has personal knowledge, and the witness acknowledged under oath that he made the statement.

Although the statement conforms superficially to the requirements of the statute, the testimony at the preliminary hearing is such that any inconsistencies between it and trial testimony are insignificant and do not specifically relate to the credibility of the officer in such a fashion that had the statements been considered as substantive evidence by the jury the outcome would have been different. (See People v. Salazar (1988), 126 Ill. 2d 424, 456-57, 535 N.E.2d 766, 780.) The officer testified at trial that at the time of defendant’s arrest, he did not notice much in the way of damage or scratches to the car. On cross-examination, defense counsel elicited a reply that although at the time of the arrest he did not notice any scratches on the vehicle, he found some scratches later when he examined the car in daylight. Counsel then brought out the fact that at preliminary hearing, the officer had testified that there was no damage to the vehicle. The officer then stated that he did not consider scratches to be any damage. In response to further questioning, the officer testified that he had said nothing about any scratches at the time of the preliminary hearing but that he did testify that there was no damage. At the time of the preliminary hearing, however, the officer testified that, “[tjhere was no damage to it, as far as you know, being scratched or anything by the hanger.”

This statement, viewed in isolation, is obviously contradictory to the officer’s statement at the time of trial that he had not mentioned any scratches on the vehicle. Equally obvious is that the question of whether or not there were scratches on the vehicle is not a matter which under Salazar would rise to the level of a significant inconsistency. The officer’s misstatement, viewed in the context of trial and preliminary hearing, is not one which goes to the heart of any matter at issue in the case at bar. This serves to differentiate the officer’s misstatement from the cases cited by defendant in his brief. (E.g., Blackburn v. Foltz (6th Cir. 1987), 828 F.2d 1177, 1183-86 (at first trial witness testified that defendant was seen for approximately one minute from a distance of five feet, never full face, and at second trial witness testified defendant was viewed for 10 minutes from a distance of three feet, full face, where identification of defendant as the perpetrator was a crucial issue, and thus failure to use the prior inconsistent statement as substantive evidence amounted to ineffective assistance of counsel).) In view of the fact that the car owner testified that she had not observed any damage on the door of her car, it is of no moment that the arresting officer had stated at the preliminary hearing that there was no damage and asserted at trial that he later discovered some scratches on the car. His assertion on cross-examination was that the car was essentially undamaged. The State never attempted to attribute any scratches on the automobile to any activities of the defendant. In any event, defense counsel did challenge the officer’s testimony at trial with his statements at the preliminary hearing and buttressed his position on cross-examination at trial that no damage had been inflicted upon the automobile. Counsel’s failure to introduce the officer’s preliminary hearing testimony as substantive evidence, despite the fact that it qualified to be submitted as such, was harmless and did not constitute error which adversely affected the reliability of the outcome of the trial. People v. Broadnax (1988), 177 Ill. App. 3d 818, 834-35, 532 N.E.2d 936, 946.

Defendant also contends that it was improper for the trial court to allow evidence that defendant had four prior theft convictions to be presented to the jury. This contention, too, is without merit.

People v. Montgomery (1971), 47 Ill. 2d 510, 518, 268 N.E.2d 695, 698, mandates that the trial court weigh the probative value of evidence of a prior conviction against its potential for unfair prejudice. Montgomery provides for admission of a prior conviction for purposes of impeachment where (1) the conviction involved a crime which is punishable in excess of one year or involves dishonesty or a false statement; and (2) the trial judge determines that the probative value of the conviction outweighs the prejudicial effect. (People v. Gray (1989), 192 Ill. App. 3d 907, 915, 549 N.E.2d 730, 735.) Theft is a crime involving dishonesty which is admissible to impeach the credibility of a witness. (People v. Spates (1979), 77 Ill. 2d 193, 201-04, 395 N.E.2d 563, 568.) The prior convictions involve crimes which are probative of his veracity and honesty as a witness, the evidence was admitted solely for that reason, and despite defendant’s argument to the contrary, it is not mandatory that convictions for the same type of crime as charged in the case for which a defendant is being prosecuted be precluded from being admitted into evidence. (People v. Fox (1988), 177 Ill. App. 3d 602, 612, 532 N.E.2d 472, 478; People v. Garlin (1981), 101 Ill. App. 3d 716, 722-23, 428 N.E.2d 697, 702.) The trial court clearly exercised its discretion in determining that the prior convictions were admissible, and the wide latitude afforded the trial court in making that determination will not be disturbed by this court on appeal.

Defendant’s last contention is that the conduct of the prosecution during closing argument, wherein the prosecutor referred to his prior convictions, “in close proximity to references of intent,” was improper and thus merits reversal of defendant’s conviction and remand for new trial.

Initially, it should be noted that defense counsel failed to object at any point in time during the State’s closing argument to these allegedly improper arguments. His failure to object contemporaneously with the allegedly improper statements and in a written post-trial motion thus waives the issue on appeal. (People v. Friesland (1985), 109 Ill. 2d 369, 374-75, 488 N.E.2d 261, 262-63.) Even if the argument had not been waived through procedural default, it is without merit.

The jury in the case at bar was well aware through instructions that closing argument is not evidence, and the jury was, moreover, properly instructed on the use of evidence of prior crimes solely as guidance to assessing credibility, not guilt. (IPI Criminal 2d No. 3.13.) A review of the closing argument, in toto, coupled with the instructions to the jury, leads this court to believe that defendant was not prejudiced by the statements concerning his prior convictions. See People v. Lawler (1991), 142 Ill. 2d 548, 564-65, 568 N.E.2d 895, 903.

In view of the foregoing, the judgment and sentence of the trial court are affirmed.

Affirmed.

CHAPMAN and HARRISON, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN LEROY RUSSELL, Defendant-Appellant.
    Fifth District
    No. 5—89—0229
    Opinion filed June 14, 1991.

      Robert Agostinelli and Mark D. Fisher, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gregory B. Grigsby, State’s Attorney, of Taylorville (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant John Russell was charged with first-degree murder and unlawful use of weapons and was convicted of second-degree murder and unlawful use of weapons. He was sentenced to concurrent terms of imprisonment of 15 years and 364 days on the respective charges. No issues are raised on appeal on the unlawful weapons conviction. Four issues are raised by the defendant with regard to the second-degree murder conviction:

(1) whether the trial court erred in refusing to instruct the jury on self-defense;

(2) whether the trial court committed reversible error in allowing evidence that a car found near but not at the scene of the shooting contained guns and ammunition, some of which belonged to the defendant;

(3) whether the trial court committed reversible error in refusing to allow certain defense witnesses to testify concerning the victim’s reputation for violence; and

(4) whether the defendant’s 15-year sentence of imprisonment was excessive.

The defendant John Russell shot and killed his half-brother, Bob Coultas, on December 4, 1988. There is no dispute about the actual killing of the victim; there is, however, some dispute about the events leading up to the shooting.

The defendant lived in Tower Hill, Illinois, with his parents. He was a gun collector, and he kept his guns in a workshop on his parents’ property. On November 27, 1988, the defendant noticed that seven guns were missing from his collection. He reported them stolen and also told the police that he thought Bob Coultas had taken them. According to the defendant, he had a good relationship with his half-brother prior to the theft, but Bob had developed a serious drug problem and did have a reputation for being violent when on drugs.

Two or three days after the theft, the defendant confronted the victim, told him that he wanted his guns back, and threatened to expose a drug ring involving a Dennis Conway and certain other of Bob’s friends. Bob told the defendant that it was likely that he would be killed if he went to the police.

After the theft, defendant testified that he wore a bullet-proof vest most of the time. He also testified that he wore camouflage clothing most of the time even before the theft.

On December 3, 1988, the defendant received phone calls from Barb Coultas, who informed him that Bob had been released from jail and that she had the addresses of two people in Pana who had his guns. The defendant drove to Pana with David Coultas and Alberta Gatton, got the names and addresses from Barb Coultas, and then drove home, intending to give the names to the police on Monday.

The next evening, December 4, 1988, defendant received more information about who had his guns and information to the effect that Dennis Conway was in town and that they were in the back of Patty Langley’s house loading up the guns. Danny Coultas drove defendant to Pana and dropped him off about a block away from the Langley residence. Defendant testified that he wanted to talk to Bob and tell him he would not go to the police and did not want to die because of a dispute over his guns. Defendant also stated that he wore a bullet-proof vest that evening and carried a gun because he knew that Bob’s friends were dangerous. As defendant was walking from behind the Langley house toward the front yard, a station wagon pulled up and Bob Coultas and four others got out. A man and a woman walked into the house and defendant approached Bob Coultas and the other two men, who turned out to be Conway and Nolan. Defendant said, “Put your hands up in the air where I can see them because I know you have weapons.” Defendant testified that Bob started to turn to his right and defendant saw a gun in his hand. When Bob continued swinging the gun in defendant’s direction, defendant raised his rifle and fired, killing Bob Coultas. Defendant told the other two, one of whom had pulled a gun, to put their hands up. One of the men threw his gun under the car and took a gun from Bob’s body and tossed it under the car. Defendant then yelled for someone to call for an ambulance and the police.

When the police arrived, the defendant walked toward them from the southwest corner of the house with his hands in the air and told the police that he shot the victim. The police testified that they found no weapons on the person of Bob Coultas, but that they did find two guns underneath the car, which was about six to eight feet from where Bob was lying. One of the guns which they found had been reported stolen on November 27, 1988.

The police arrested defendant and a short time later arrested Danny Coultas, the victim’s nephew, about a half-block away. Danny also wore a bullet-proof vest, and he had a pistol in his waistband. Danny’s car was found parked at a car wash and when the police searched the car they found weapons and various types of ammunition. The defendant’s pretrial motion to exclude the guns and ammunition found in Danny Coultas’ car was denied.

The trial court refused to allow two of defendant’s witnesses to testify as to the victim’s reputation in the community for violence because neither of the witnesses knew or had spoken to anyone from Tower Hill, which is where the victim resided. Defendant’s post-trial motion was denied, and he was sentenced to 15 years’ imprisonment on the second-degree murder conviction.

The only issue which we address is the trial court’s refusal to instruct on self-defense. We note at the outset that the jury believed, at the least, that the defendant had an unreasonable belief in the necessity of using force, since it returned a verdict of second-degree murder rather than a first-degree murder conviction as sought by the State. Secondly, there was evidence from the defendant that he believed that it was necessary to shoot his half-brother because he pulled a gun, turned toward him, and raised the gun. Some years ago our supreme court held that if evidence supports a self-defense instruction, it will also support a voluntary manslaughter instruction. (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378.) Lockett has been followed since then. People v. O’Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441; People v. Everette (1990), 141 Ill. 2d 147, 565 N.E.2d 1295.

Lockett also pointed out:

“It is not the province of the judge to weigh the evidence and decide if defendant’s subjective belief was reasonable or unreasonable. The judge’s duty is to determine if any evidence is presented that the defendant had a subjective belief. We can conceive of no circumstance when a judge could determine, as a matter of law, that a jury could find the defendant had a reasonable subjective belief the killing was justified, but that a jury could not find the defendant’s subjective belief was unreasonable. So long as some evidence is presented from which a jury could conclude that defendant had a subjective belief, the jury should determine if the belief existed and, if so, whether that belief was reasonable or unreasonable.” Lockett, 82 Ill. 2d at 553, 413 N.E.2d at 382.

While Lockett required the giving of a voluntary manslaughter instruction if a self-defense instruction was given, and this case deals with the converse of that situation, the reasoning of Lockett is still persuasive in this situation. People v. Timberson (1989), 188 Ill. App. 3d 172, 544 N.E.2d 64; People v. Woodward (1979), 77 Ill. App. 3d 352, 395 N.E.2d 1203.

The State does not seriously contest the basic proposition that the jury should be instructed both as to self-defense and second-degree murder if evidence is produced that would establish a subjective belief in the use of force in the defendant’s mind. The State’s main contention is that the self-defense instruction should not have been given because the defendant was the initial aggressor. The trial court found that the defendant was the initial aggressor, and the State argues that the evidence supports the court’s finding. The State relies upon the fact that the night before the shooting the defendant wore a bullet-proof vest, armed himself and another person, and went looking for the victim in hopes of retrieving his stolen guns. Although they did not find the victim on that night, the next night they went out again armed in a similar manner. The defendant stood in the darkness and shouted to the victim to put his hands in the air. The State contends that the defendant’s words coupled with the fact that he was talking to the victim under cover of darkness while armed with an assault rifle and waiting uninvited on someone else’s property were sufficient to establish the defendant as the aggressor. The State finally contends that in such a situation the victim would have been entitled to try to repel an attack by the defendant, citing People v. Sloan (1986), 111 Ill. 2d 517, 490 N.E.2d 1260.

We agree with the trial court that there was evidence to support the finding that the defendant was the initial aggressor. We do not, however, agree with the trial court that evidence supporting the finding of the defendant as an initial aggressor necessarily precludes instructing the jury on self-defense.

In this case, while there was evidence to support a finding that the defendant was the initial aggressor, that evidence was not so compelling that no other finding could have been made. It is this difference which distinguishes the instant case from People v. Sloan and People v. Davidson (1987), 160 Ill. App. 3d 99, 514 N.E.2d 17, both of which involved situations in which the defendant invaded the victim’s home while armed. In this case, the defendant pursued a course of action that was to say the least unwise and rash. Whether he was truly only wanting to discuss the theft of his guns with his half-brother or whether he was on a vigilante self-help mission makes little difference insofar as the victim is concerned at this time. Neither procedure is one that should be encouraged. However, the defendant did not threaten, strike, verbally abuse, or in any other manner act aggressively insofar as the victim was aware. While the defendant was armed and while he ordered the victim and others to raise their hands, this may or may not have been enough to convince the jurors that the defendant was the initial aggressor. Since they could have made that conclusion based on the evidence before them, they should have received instructions on the initial aggressor status of defendant. However, since they also could have come to the conclusion, based on the same evidence, that the defendant was not the initial aggressor, the defendant was entitled to an instruction on self-defense. Therefore, the trial court erred in refusing to instruct the jury on self-defense under the circumstances of this case and we must reverse on that point. (See People v. Ellis (1982), 107 Ill. App. 3d 603, 614, 437 N.E.2d 409, 418.) Once the jury is instructed on both issues, it is then able to resolve the question on either hypothesis. People v. Day (1972), 2 Ill. App. 3d 811, 813, 277 N.E.2d 745; People v. Townsend (1985), 136 Ill. App. 3d 385, 483 N.E.2d 340; People v. Crue (1977), 47 Ill. App. 3d 771, 362 N.E.2d 430.

In view of the foregoing, we find it necessary to reverse this case because of the court’s failure to instruct on self-defense.

The State in its brief requests that, in the alternative, if we find that the self-defense instruction should have been given, this court also find that defendant may be retried on the original charge of first-degree murder rather than second-degree murder of which the defendant was convicted. The defendant argues that he cannot be retried on the charge of first-degree murder.

We agree with defendant’s position for several reasons. First, under the old murder/voluntary manslaughter statutes, a conviction of voluntary manslaughter operated as an acquittal of a murder charge. (People v. Echoles (1976), 36 Ill. App. 3d 845, 344 N.E.2d 620.) Since the second-degree murder statute was written for the purpose of substituting the new name, but not a whole new body of law, for the old voluntary manslaughter crime, those earlier cases still control on this issue. People v. Timberson (1989), 188 Ill. App. 3d 172, 544 N.E.2d 64; see also Steigmann, First & Second Degree Murder in Illinois, 75 Ill. B.J. 494 (1987).

Second, as a general proposition, prosecution of a greater offense is barred after conviction of a lesser-included offense. (Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260; People v. Mueller (1985), 109 Ill. 2d 378, 488 N.E.2d 523.) In People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335, our supreme court noted that voluntary manslaughter is a lesser-included offense of murder. Therefore, the defendant’s conviction of the lesser-included offense of second-degree murder would preclude his retrial on the first-degree murder charge. Finally, while the jury did have to find that the prosecution had proved all of the elements of first-degree murder before proceeding to the second-degree murder consideration (People v. Buckner (1990), 203 Ill. App. 3d 525, 532, 561 N.E.2d 335, 340), it does not follow that the jury first found that the defendant was guilty of first-degree murder because the mental states involved in each of these offenses are mutually inconsistent (Hoffer, 106 Ill. 2d 186, 478 N.E.2d 335). Therefore, the fact that the State may have proved the elements of first-degree murder does not mean that the jury has found the defendant guilty of first-degree murder. In conclusion, upon a retrial the defendant cannot be tried for first-degree murder. See People v. Timberson (1991), 213 Ill. App. 3d 1037.

The defendant has also raised two evidentiary issues and a sentencing issue for our review. The sentencing issue has obviously become moot in view of our decision to reverse. With regard to the evidentiary issues, we decline to address them other than to note that both are relatively close questions in view of the evidence elicited during the first trial. Since we are unable to determine which witnesses may be available and the theories upon which the parties may proceed on the retrial of this case, we do not feel it is appropriate to address these issues in this opinion and therefore decline to do so.

Reversed and remanded.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NAILER JEFFREY, Defendant-Appellant.
    Fifth District
    No. 5—88—0689
    Opinion filed June 18, 1991.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Nailer Jeffrey, appeals from the denial of his post-conviction petition after an evidentiary hearing. On appeal, defendant contends that he is entitled to a new trial because an actual conflict of interest existed due to the representation of defendant and a codefendant by their trial attorney, or in the alternative, that he is entitled to a new hearing because the judge who heard the petition was predisposed to deny it.

Defendant and Gary Michael Brown were jointly indicted for murder committed during the course of a felony, based on the underlying felony of burglary (Ill. Rev. Stat. 1975, ch. 38, pars. 9 — 1(a)(3), 19 — 1). After a joint jury trial, defendant and Brown were convicted as charged. Defendant was sentenced to a term of 100 to 200 years’ imprisonment. Brown was sentenced to 30 to 75 years’ imprisonment. On direct appeal to this court, they contended that evidence of their guilt was insufficient, the indictment was fatally defective, and their retained counsel was subject to a disabling conflict of interest. This court affirmed the judgment of the circuit court of Jackson County. People v. Jeffrey (1981), 94 Ill. App. 3d 455, 418 N.E.2d 880.

On direct appeal, defendant and Brown contended that they were denied their right to effective assistance of counsel where defense counsel Robert Butler, who represented both of them, had previously represented David Beaver and Willie Jeffrey, other alleged accomplices, on charges arising out of the same offense. David Beaver and Willie Jeffrey were key State’s witnesses at defendant’s trial. Defendant and Brown maintained that while they purported to waive any conflict of interest on Butler’s part, the nature of the conflict was not adequately explained to them. After reciting verbatim part of the trial court’s admonishments concerning a possible conflict of interest due to Butler’s representation of defendant and his prior representation of the State’s two key witnesses, this court held that defendant waived the issue. 94 Ill. App. 3d at 467-68, 418 N.E.2d at 890-91.

On December 14, 1981, defendant filed a pro se post-conviction petition. After the circuit court appointed counsel to represent defendant, a supplemental petition for post-conviction relief was filed on August 6, 1984, which alleged, in part, that counsel refused to allow defendant to testify at trial, that Butler had a conflict of interest due to this dual representation of defendant and Gary Brown, and that Butler refused to thoroughly cross-examine the State’s witnesses concerning defendant’s lack of involvement in the crime because such inquiry would have shifted the blame to Brown and contradicted Brown’s defense.

Attached to the supplemental petition was defendant’s affidavit that stated his desire to testify to the effect that he was in the murderers’ automobile and too intoxicated to get out. Defendant believed that “the boys” were trying to buy marijuana from the residents of the house next door to the victim and did not know a robbery had occurred until after they returned. Several days later, defendant became aware of the victim’s death but “was afraid to say anything about it.” Butler, however, allegedly told defendant that it would “muddy the waters” if he testified and that he should rely on Brown’s alibi defense.

On September 5, 1984, the State filed a motion to dismiss the supplemental petition. On August 23, 1985, the circuit court dismissed the petition. The court held that the allegation of conflict of counsel was decided adversely to him by this court. The court further found that all of the other points were available to be raised on appeal; therefore, all issues raised in the supplemental petition were waived or were res judicata.

On direct appeal to this court from the dismissal of the supplemental post-conviction petition, this court held that the conflict issue raised in the petition was not res judicata as it was not raised on direct appeal and could not have been raised because any allegation of antagonistic defenses between defendant and Brown was not a matter of record. Also not of record was Butler’s advice to defendant. We noted that a criminal defendant in need of representation is entitled to counsel who is free from adverse interests which might prejudice such representation. In furtherance of this principle, it has long been held that an attorney should not be required to represent codefendants whose defenses are inconsistent, since to do so would inevitably prejudice the defense of at least one client. Once such an actual conflict is identified, it is unnecessary for a defendant to demonstrate that prejudice resulted therefrom in order to sustain a finding of a violation of the right to counsel. (People v. Nelson (1980), 82 Ill. 2d 67, 72, 411 N.E.2d 261, 264.) A defendant has the “right to the assistance of an attorney unhindered by a conflict of interests.” (Holloway v. Arkansas (1978), 435 U.S. 475, 483 n.5, 55 L. Ed. 2d 426, 433 n.5, 98 S. Ct. 1173, 1178 n.5; see also People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.) This court therefore remanded the cause for an evidentiary hearing. People v. Jeffrey (5th Dist. 1987), No. 5—85—0641 (unpublished order under Supreme Court Rule 23).

On October 13, 1988, an evidentiary hearing was held on the supplemental petition, at which defendant testified that Butler asked him to persuade Brown to retain him so that two attorneys would not be cross-examining the State’s witnesses, because such cross-examination would “muddy the water up.” At that time, Brown was represented by another attorney. Defendant conveyed Butler’s suggestion to Brown, and Brown retained Butler.

Defendant further testified that prior to trial he told Butler that he had to explain “what [he] had to do with the case.” Butler responded that it was not necessary for him to explain anything as it would muddy the water and that State’s witnesses had been paid for “this and paid for that.” After trial commenced, defendant again informed Butler of his desire to testify, and Butler responded that “he didn’t want me on the stand to muddy the water up and to be questioned.” One alibi was to be used for both defendant and Brown. Butler explained that he knew that the State’s main witnesses, including Beaver and Willie Jeffrey, had made a deal with the State to get out of prison or reform school or were paid. Butler also stated that he didn’t want defendant to testify because no lawyer could then question him. Defendant conceded that during trial he was in agreement with Butler’s trial strategy. After having been found guilty of murder, he did not feel that his attorney had done a good job for him. At no time prior to the filing of his supplemental petition did defendant protest to the court the decision of Butler not to call him to testify in his own defense. During cross-examination of defendant, the following occurred:

“Q. [Assistant State’s Attorney:] And do you remember Judge Richman asking you certain questions? Do you remember being there with Mr. Brown, as well—
A. [Defendant:] Yes.
Q. —the co-defendant, and being there with Mr. Butler?
A. Yes.
Q. And this was the time in which Mr. Butler was going to enter his appearance, was going to enter his appearance so that he could represent Mr. Brown in addition to yourself. Do you remember that date?
A. Yes. Yes, sir.
Q. And do you remember Judge Richman asking you, ‘Now Mr. Jeffrey, you have heard my statements today. You have heard them a few days ago when I discussed the possible conflict of interest problem.’ Do you remember that?
A. Yes, I do.
Q. And you responded, ‘Yes, your Honor.’ And Judge Rich-man asked you, ‘Now what is your position? Do you have any objection to Mr. Butler representing Mr. Brown?’ And you responded, T believe he can give us — ’ And Judge Richman said, T am not asking about “us.” I am asking about your position only. Do you object to Mr. Butler also representing Mr. Brown?’ And you said, ‘No, sir, I want him to represent both of us.’ Do you remember that?
A. Yes, I do.
Q. And you didn’t have any problems at that time. Is that correct?
A. I didn’t understand the law at the time. I didn’t know Mr.-
Q. Well, isn’t it a fact that Judge Richman asked you, ‘Do you think he can adequately represent you at the same time he is representing Mr. Brown?’
A. Yes, he said that.—
Q. Do you remember Judge Richman asking you that?
A. Yes.
Q. And do you remember replying, ‘Yes, sir, I do’?
A. Yes, I do.
Q. And do you remember Judge Richman asking you, ‘And you are raising no objection whatsoever. Is that true?’
A. That’s right.
Q. And isn’t it a fact that you answered, ‘Yes, sir’?
A. Yes.”

Defendant, who has a fourth-grade education, explained that although he had been in court prior to this case, he didn’t understand counsel “questioning one client and not being able to question the other.” Defendant did not know that Brown would testify at trial until after the State had rested its case.

In denying the supplemental post-conviction petition, the court found no per se conflict had resulted from Butler’s dual representation of defendant and that any conflict that may have resulted was knowingly, intelligently, and understandingly waived by defendant. The court also found, based on defendant’s testimony at the hearing, that he would have made a terrible witness, who was subject to impeachment by his lengthy criminal record; therefore, it was Butler’s trial strategy to base the defense on the weakness of the State’s witnesses rather than permit defendant to explain his presence at the scene. The court further found that Brown’s testimony did not have any effect on the jury’s attitude toward defendant and that defendant’s credibility was highly questionable.

Defendant initially contends that he should be granted a new trial because Butler had an actual conflict of interest in representing both defendant and Brown which prejudiced defendant in the presentation of his case. This prejudice manifested itself, according to defendant, in the denial of his right to counsel under the sixth amendment to the United States Constitution and his right to testify and to present the strongest defense possible.

While it is true, as we have stated, that a criminal defendant enjoys a sixth amendment right to effective assistance of counsel which includes the assistance of an attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations, our supreme court has stated that cases involving joint or multiple representation of codefendants are not considered per se conflicts of interest. (People v. Spreitzer (1988), 123 Ill. 2d 1, 13-14, 17, 525 N.E.2d 30, 34, 36, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; see also People v. Larry (1990), 196 Ill. App. 3d 231, 235-36, 553 N.E.2d 431, 434.) In situations involving joint or multiple representation, however, if counsel brings a potential conflict to the trial court’s attention at an early stage of the proceeding, the court has a duty to either appoint separate counsel or take adequate measures to determine whether the risk of conflict is too remote to warrant separate counsel. (Holloway, 435 U.S. at 484, 55 L. Ed. 2d at 434, 98 S. Ct. at 1178; Spreitzer, 123 Ill. 2d at 18, 525 N.E.2d at 36.) If the trial court fails to fulfill this duty, a conviction will be reversed without a showing that the attorney’s performance was affected by the purported conflict in the absence of a knowing waiver by defendant of conflict-free counsel. 123 Ill. 2d at 18, 525 N.E.2d at 36; Larry, 196 Ill. App. 3d at 236, 553 N.E.2d at 434-35.

In the instant case, counsel for the State did bring the potential conflict arising from Butler’s dual representation of defendant and Brown to the court’s attention prior to trial and the court questioned both defendants in order to determine whether the risk of conflict warranted separate counsel. In addition to questioning defendant to determine whether he believed Butler could adequately represent both defendant and Brown, the court asked Butler if he felt he could “adequately and fully, fairly *** represent both of these defendants in this case,” and Butler replied in the affirmative. Additionally, the court warned both defendants of the precise conflict which defendant now claims occurred, stating as follows:

“In addition, after the State has presented its evidence it may be that either one of you or both of you will want to testify. That is going to be up to you. You don’t have to testify. You don’t have to prove your innocence. But it may be that one of you wants to testify and the other one doesn’t. It may be that both of you want to testify. I am pointing these things out to you to point out the possible areas where there might be some area of conflict between your position and your co-defendant’s position, and your attorney’s position in having represented two of the witnesses and his present position representing at this time Mr. Jeffrey.”

In People v. Holmes (1990), 141 Ill. 2d 204, 217, 565 N.E.2d 950, 955, our supreme court recently stated that although an accused may exercise the right to counsel of choice even where it jeopardizes the right to effective assistance of counsel by making a knowing, voluntary, and intelligent waiver of the latter right, the sixth amendment right to choose one’s own counsel is not absolute. “The right is ‘circumscribed in several important respects,’ which may include the disqualification of chosen counsel if a conflict of interest exists.” (Holmes, 141 Ill. 2d at 217, 565 N.E.2d at 955, quoting Wheat v. United States (1988), 486 U.S. 153, 159, 100 L. Ed. 2d 140, 148-49, 108 S. Ct. 1692, 1697.) The court in Holmes held that a broad latitude should be given in reviewing a trial court’s decision on the issue of whether to allow waiver of a conflict of interest, and the ruling of the trial court should not be set aside unless there has been a clear abuse of discretion. (Holmes, 141 Ill. 2d at 223-24, 565 N.E.2d at 958.) Given this standard, we cannot say that the trial court herein abused its discretion in allowing defendant to waive any potential conflict of interest arising from Butler’s dual representation of defendant and Brown.

The right to effective assistance of counsel assured by the sixth amendment is indeed subject to waiver. (People v. Atkins (1987), 161 Ill. App. 3d 600, 607, 515 N.E.2d 272, 276; People v. Washington (1984), 101 Ill. 2d 104, 114, 461 N.E.2d 393, 398, cert. denied (1984), 469 U.S. 1022, 83 L. Ed. 2d 367, 105 S. Ct. 442.) The determination of whether there has been an intelligent waiver of the right to conflict-free counsel depends upon the facts and circumstances of each case. (Atkins, 161 Ill. App. 3d at 607, 515 N.E.2d at 276.) Here, the record clearly demonstrates that defendant waived any claim of prejudice as to his joint representation. The trial court painstakingly advised defendant and Brown of the possible problems with joint representation, including the conflict defendant now claims eventually arose, and admonished them several times. Defendant and Brown both insisted on proceeding to trial with Butler as their attorney. The record therefore supports the trial court’s finding that defendant knowingly and intelligently waived his right to separate counsel. Thus, defendant waived his right to a claim of ineffective assistance of counsel due to joint representation.

Defendant additionally argues that Judge Richard E. Richman was predisposed to deny defendant’s post-conviction petition because Judge Richman, in his role as trial judge, had previously admonished defendant concerning the hazards of being represented by the same attorney as his codefendant. However, as the State asserts, where a post-conviction petition raises a collateral matter not appearing in the record which the petitioner claims made his conviction constitutionally invalid, theoretically, any judge may impartially consider whether such petition has presented a meritorious claim. (See People v. Farmer (1986), 148 Ill. App. 3d 723, 729, 499 N.E.2d 710, 714.) In fact, post-conviction proceedings should be heard by the judge who rendered the original judgment, unless there is a showing of prejudice. People v. House (1990), 202 Ill. App. 3d 893, 910, 560 N.E.2d 1224, 1235-36.

In People v. Griffin (1985), 109 Ill. 2d 293, 487 N.E.2d 599, the defendant appealed from a denial of his post-conviction petition alleging ineffective assistance of counsel on the grounds of joint representation. As here, the defendant contended at the post-conviction hearing that his trial counsel had discouraged the defendant’s use of a “present but did not participate” account that would have incriminated his codefendant. The defendant argued on appeal that although he had presented an alibi defense at trial, his post-conviction hearing testimony concerning his desire to present a different defense was undisputed. Our supreme court stated that under the circumstances present in Griffin, “it was for the judge at the post-conviction hearing, who had presided at the defendant’s jury trial, to pass on the defendant’s credibility and decide what weight to give to his different testimony.” 109 Ill. 2d at 305-06, 487 N.E.2d at 604.

In the instant case, in addition to finding that any conflict arising from joint representation had been waived, the court found defendant’s testimony at the post-conviction hearing incredible. Credibility is not, of itself, a question for a court of review. (109 Ill. 2d at 307, 487 N.E.2d at 605.) Therefore, where we have reviewed the record and do not find any facts showing bias on Judge Richman’s part, the court’s finding on the post-conviction petition was not manifestly erroneous.

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

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES B. HENDERSON, Defendant-Appellant.
    Fifth District
    No. 5-89-0501
    Opinion filed June 19, 1991.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Terry M. Green, Special Prosecutor, of Benton (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

James Henderson was charged with armed robbery. After a stipulated bench trial, defendant was found guilty and sentenced to 15 years in the Department of Corrections. His conviction and sentence were affirmed on appeal by an unpublished order issued pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23) (People v. Henderson (1987), 162 Ill. App. 3d 1174, 528 N.E.2d 1117). Henderson then filed a pro se petition for post-conviction relief.

Included in Henderson’s petition were allegations that: (1) the trial court erred in denying defendant’s motion to quash arrest and suppress evidence; (2) trial counsel was ineffective for failure to move for severance of trials; (3) trial counsel was ineffective for entering into a stipulation that all the police reports and statements could be admitted into evidence when they contained inconsistencies; (4) trial counsel was ineffective for allowing Henderson to enter into a stipulated bench trial without presenting evidence in his defense; and (5) appellate counsel was ineffective for not raising these errors on direct appeal. The court appointed counsel to represent Henderson on his petition, and the State filed a motion to dismiss. At the hearing on the petition and the State’s motion, defense counsel orally amended defendant’s petition, incorporating an allegation that the State failed to disclose an exculpatory letter from the defendant to the State. Defense counsel discovered the letter the morning of the hearing. The State’s motion to dismiss was granted. Henderson appeals from the circuit court’s order dismissing his petition.

Henderson raises two issues on appeal. The first is whether Henderson received adequate representation from his post-conviction counsel. The second issue presented is whether the trial court erred in finding that Henderson waived his argument that trial and original appellate counsel were ineffective because Henderson did not raise the issue on direct appeal.

Pursuant to Supreme Court Rule 651(c), post-conviction counsel must make any amendments to the pro se petition that are necessary for adequate presentation of defendant’s contentions. (134 Ill. 2d R. 651(c).) In this case counsel orally amended the petition, incorporating an allegation that defendant’s rights to due process and equal protection were denied because of the State’s failure to produce in discovery a letter allegedly exculpating Henderson. Defendant has not offered any recommendation as to how counsel could have otherwise improved the petition. The pro se petition is in fact well drafted and not conclusional. (See People v. Alexander (1990), 197 Ill. App. 3d 571, 573, 554 N.E.2d 1078, 1079.) Based on the foregoing, we cannot conclude that amendments were necessary for an adequate presentation of defendant’s contentions.

Supreme Court Rule 651(c) also mandates that the record in a post-conviction proceeding contain a showing that the petitioner’s attorney consulted with petitioner as to his contentions of deprivation of constitutional rights, and that the attorney examined the record of the trial proceedings and made any amendments to the pro se petition necessary for adequate presentation of the petitioner’s contentions. (134 Ill. 2d R. 651(c).) The record in this case does not contain a Rule 651(c) certificate, which is one method of establishing the showing required. In the absence of a certificate, compliance with the requirement of Rule 651(c) can be established from the record itself. (People v. Bennett (1980), 82 Ill. App. 3d 596, 601, 403 N.E.2d 50, 55.) Our examination of the record, however, does not reveal such compliance. The record is devoid of any indication that counsel consulted with Henderson, other than defense counsel’s general statement to the court at the post-conviction hearing that he spoke with the defendant. There is no indication that counsel’s contact with the defendant was in any way to ascertain defendant’s “contentions of deprivation of constitutional rights.”

Rule 651(c) also requires that there be a showing on the record that post-conviction counsel examined the record of the proceedings at trial. Our review of the record establishes that post-conviction counsel was familiar with Henderson’s petition, the State’s motion to dismiss, and the Rule 23 order of this court in the direct appeal of this case. There is, however, no showing that counsel was familiar with the trial record. Absent an affirmative showing on the record, we cannot presume that post-conviction counsel fulfilled his obligation to review the trial record. See Alexander, 197 Ill. App. 3d at 573, 554 N.E.2d at 1079; People v. Bennett (1980), 82 Ill. App. 3d 596, 601, 403 N.E.2d 50, 55.

The purpose of the post-conviction proceeding is to permit inquiry into constitutional issues involved in the original conviction that have not already been adjudicated. (People v. Stewart (1988), 121 Ill. 2d 93, 104, 520 N.E.2d 348, 353, cert. denied (1988), 488 U.S. 900, 102 L. Ed. 2d 234, 109 S. Ct. 246, citing People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, 833, cert. denied (1987), 484 U.S. 873, 98 L. Ed. 2d 163, 108 S. Ct. 212.) Rule 651(c) is not satisfied where counsel does not confer or communicate with the petitioner to ascertain his contentions of constitutional deprivations. (People v. Owens (1990), 139 Ill. 2d 351, 359, 564 N.E.2d 1184, 1187.) Absent a showing that post-conviction counsel fulfilled the requirements of Rule 651(c), we cannot find that Henderson was provided adequate post-conviction representation. This court orders the cause remanded to the trial court for an evidentiary hearing and a finding of fact by the trial court as to whether counsel complied with Rule 651(c).

Moving on to the second issue raised by Henderson, where a judgment is reversed on one ground, other grounds of reversal assigned will not ordinarily be passed on when the same questions in all probability will not arise on a retrial or subsequent appeal. (Smith v. Metropolitan Sanitary District (1978), 61 Ill. App. 3d 103, 377 N.E.2d 1088, 1091, citing City of Chicago v. Callender (1947), 396 Ill. 371, 71 N.E.2d 643.) Although our resolution of the first issue raised by Henderson requires that this cause be remanded for further post-conviction proceedings, we anticipate it arising again at the post-conviction hearing and on appeal. Therefore, in furtherance of judicial economy, we will address the issue of whether the trial court erred in finding that he waived his argument that trial and appellate counsel were ineffective.

Preliminarily, we find that certain allegations of ineffective assistance of counsel are neither waived nor barred by res judicata. (People v. Hanrahan (1985), 132 Ill. App. 3d 640, 641, 478 N.E.2d 31, 32.) With regard to his trial counsel, Henderson alleged in his post-conviction petition that his trial counsel was ineffective because he: (1) induced Henderson to waive a jury trial; (2) entered into a stipulation that all the police reports and statements could be admitted into evidence even though they contained inconsistencies; and (3) presented no evidence at the stipulated bench trial. Henderson admits in his brief on appeal that he assumed that he was proceeding with a stipulated bench trial. His contention on appeal, however, is that because no evidence was presented on his behalf and because no defense was presented, the proceeding was nothing more than an uncounseled guilty plea.

The record shows that on October 28, 1986, the parties filed with the court a document entitled “Bench Trial Stipulation” which sets forth the stipulation of the parties as to what the evidence would be in the presentation of a trial. During the stipulated bench trial proceedings, defense counsel offered no evidence on defendant’s behalf and made no comments as to the stipulated evidence. Contrary to Henderson’s argument, however, counsel did preserve a defense.

On October 10, 1986, defense counsel filed a motion to quash arrest and to suppress evidence. A stipulated bench trial is not tantamount to a guilty plea if the defendant presented and preserved a defense. (People v. Horton (1991), 143 Ill. 2d 11; People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760; People v. Hart (1986), 144 Ill. App. 3d 103, 494 N.E.2d 226.) The stipulated bench trial in this case was not tantamount to a guilty plea because Henderson’s counsel preserved the issue regarding the quashing of arrest and suppression of evidence. Therefore, we do not find that trial counsel was ineffective in the handling of the stipulated bench trial.

Denial of an evidentiary hearing on a post-conviction petition is discretionary with the trial court, and its decision will not be reversed absent an abuse of discretion. (Hanrahan, 132 Ill. App. 3d at 641, 478 N.E.2d at 32.) Defendant is not entitled to an evidentiary hearing as a matter of right, and a defendant has the burden of showing a substantial denial of constitutional rights supported by the record, affidavits, or other evidence. (People v. James (1986), 111 Ill. 2d 283, 291, 489 N.E.2d 1350, 1354; Hanrahan, 132 Ill. App. 3d at 641, 478 N.E.2d at 32-33.) In view of our conclusion that Henderson’s stipulated bench trial was not tantamount to a guilty plea, we find that as to this claim Henderson failed to sustain his burden of showing that he was the victim of a substantial denial of a constitutional right thereby entitling him to an evidentiary hearing on his post-conviction petition as to trial counsel’s ineffectiveness.

Regarding Henderson’s allegation that appellate counsel was ineffective, the decision of appellate counsel not to raise certain issues will not be challenged unless counsel’s decision is clearly erroneous. (People v. Martin (1976), 38 Ill. App. 3d 209, 347 N.E.2d 200.) Counsel is not required to raise every nonfrivolous, or “colorable,” claim. (Jones v. Barnes (1983), 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308.) The claim of ineffective representation by counsel reaches constitutional dimensions only if the incompetent representation probably affected the outcome of the case. (People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) As demonstrated above, appellate counsel’s failure to raise the issue of whether Henderson’s stipulated bench trial amounted to an uncounseled guilty plea would not have affected the outcome of Henderson’s case. (See People v. Scott (1981), 94 Ill. App. 3d 159, 418 N.E.2d 805.) However, we cannot say at this juncture whether appellate counsel’s failure to pursue the suppression of evidence issue on appeal would have affected the outcome of the case.

Trial counsel preserved the suppression of evidence issue at the stipulated bench trial. The sole issue raised by counsel on direct appeal concerned the alleged excessive sentence imposed. Appellate counsel did not raise the suppression of evidence issue. We find that the trial court should have conducted an evidentiary hearing on defendant’s post-conviction petition. Hanrahan, 132 Ill. App. 3d 640, 478 N.E.2d 31.

In light of the foregoing, we reverse and remand to the trial court for (1) an evidentiary hearing and a finding of fact as to whether post-conviction counsel complied with Supreme Court Rule 651(c), and (2) an evidentiary hearing on defendant’s post-conviction petition allegation that appellate counsel was ineffective for not raising the suppression of evidence issue on direct appeal, and any other matters the trial court deems appropriate.

Reversed and remanded with directions.

LEWIS and HOWERTON, JJ., concur.