author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NEIL BLITSTEIN, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—0953
    Opinion filed December 15, 1989.
    John Thomas Moran, Jr., of Law Offices of John Thomas Moran, and Mitchell C. Ex, of Kessler & Ex, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Bonnie Meyer Sloan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Neil Blitstein, was convicted of theft by deception following a trial without a jury. The trial court sentenced defendant to two years’ probation. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt and that the three-year statute of limitations had run when the State filed its indictment. Although we find that the statute of limitation issue is dispositive of the appeal, we shall set forth the facts in some detail.

On March 21, 1986, defendant was indicted by a grand jury for the continuing theft of checks belonging to Scrap Corporation of America (SCA). The indictment alleged that defendant “obtained by deception control over property, to wit: checks or orders for the payment of money of an amount in excess of $300 *** intending to permanently deprive the owner of the use and benefit of said property.” The indictment stated further that the offense was “one of a series of such offenses performed at different times *** and for which period of limitations prescribed by chapter 38, section 3 — 8, begins at the time when the last such act is committed, to wit: on or about March 22, 1983.”

On May 2, 1986, defendant requested a bill of particulars. The State answered that it had tendered the 91 checks which created the $101,000 figure charged in the indictment. The court found this was sufficient answer to defendant’s request.

On September 30, 1986, defendant filed a motion to dismiss based on the statute of limitations. Defendant argued that the last “overt act” of the continuing theft was March 16, 1983, the date of the last alleged nondelivery of goods, or on March 18, 1983, the date of the check issued by SCA to defendant’s company. The State maintained that the last overt act occurred on March 30, 1983. The court denied the motion to dismiss, relying on the fact that defendant’s bank stamped the check on March 22, and SCA's bank paid the check on March 23, thereby falling short of the statute of limitations by one and two days, respectively.

At trial, it was established that defendant worked for SCA, which was in the business of buying steel scrap, as a yard foreman from 1980 until March 30, 1983. At the same time, defendant owned two businesses, Bartco and U.S. Tank, which provided steel scrap to scrap companies. In 1981, Bartco began selling scrap to SCA. In 1982, U.S. Tank began selling scrap to SCA. During 1981, 1982 and 1983, SCA had paid out 91 checks to Bartco and U.S. Tank, for a total of $101,988.21.

The "method of delivery of scrap and payment therefor was established at trial as the key to the alleged fraud. When a truckload of scrap entered the SCA yard, it was weighed at a scale by the scale-master, whose work station overlooked the scale platform. An instrument printed the weight on a receiving ticket, which was time stamped by the scalemaster. The truck left the scale. The scrap on the truck was inspected by a yard inspector or foreman, who completed an inspection ticket and had the truck unloaded. The empty truck was then reweighed. The scalemaster recorded the second weight, time stamped the ticket, and recorded the load’s receipt in a purchase log. The yardmaster or his assistant made out a check for the delivery.

James Sargent, SCA’s manager of trucking, testified for the State that on March 30, 1983, he arrived at work at 5 a.m. His second-floor office overlooked the truck scale. At 5:45 a.m., Sargent heard defendant arrive in his first-floor office. No one else was present. Patrick Tang, SCA’s general manager, had instructed Sargent to watch to see if trucks weighed on the scale corresponded with receiving tickets. Sargent heard defendant go upstairs, and he then twice heard the scale operating. Sargent looked out the window facing the scale and saw nothing on it. There were no trucks in the yard. When Sargent returned to his office, he saw on the scalemaster’s desk a receiving ticket for Bartco, which had not been present several minutes earlier.

Tang testified that in March 1983 SCA had hired a private investigation firm to survey the traffic coming into the yard. Tang personally went through the yard on various dates, including March 7, 11, 18, and 30, 1983, looking for Bartco loads after being notified of a Bartco entry in the scalemaster’s record. He could find no Bartco loads in the yard. On March 30, Tgng met with defendant, who stated that Bartco owned a red truck and a white truck. Defendant was terminated that day. During Tang’s employment with SCA he never saw any Bartco or U.S. Tank trucks in the yard. The traffic control reports on several occasions showed no entry of Bartco trucks on days when the purchase logs showed that a Bartco delivery and payment had been made. With the exception of four inspection reports, the remaining 87 inspection reports on Bartco and U.S. Tank loads were prepared by defendant. Most of the receiving tickets were unusual because they had no time stamp or carrier designation on them, and after April 1982 they were not signed by the scalemaster. Also unusual was the fact that the purchase logs showed the Bartco and U.S. Tank loads were usually listed as either the first or last entries of the day. Defendant was authorized to weigh and inspect early deliveries if the scalemaster was not yet on duty.

Sheila Green, the scalemaster from 1980 to 1985, testified for the State. The digital weigher could be operated manually so that a weight could be entered without a truck being on the scale. Most of the relevant inspection reports and receiving tickets were completed by defendant. Most of the receiving tickets were time stamped to show the time of delivery arid were all processed by defendant. She had never seen a Bartco or U.S. Tank delivery, or processed any weighing information for their loads while she was scalemaster. She often found Bartco receiving tickets on her desk when she arrived in the morning. Trucks could bypass the guardhouse and go directly to the scale.

Defendant testified that materials from Bartco were delivered by independent truckers, including Lucien Ouelletter and Bobby Goss. As yard foreman, he filled out 30 or 40 inspection reports at the end of each day without viewing the loads. In 1982, he began dismantling a ship for which he sold the scrap to SCA. It was transported in SCA trailers in 20 or 30 different loads. He had five to seven men on the crew working for U.S. Tank, but could only remember one named “Amelio.” He had no record of payments to Bartco drivers because they were paid in cash.

We initially consider defendant’s contention that the three-year statute of limitations had run at the time he was indicted.

On March 21, 1986, defendant was indicted. The applicable statute requires that defendant be charged within three years. (Ill. Rev. Stat. 1985, ch. 38, par. 3—5.) A statute of limitations begins to run when the alleged offense is completed. (Toussie v. United States (1970), 397 U.S. 112, 115, 25 L. Ed. 2d 156, 161, 90 S. Ct. 858, 860.) The State bears the burden of proving that the offense occurred within the applicable statute of limitations. (People v. Steinmann (1978), 57 Ill. App. 3d 887, 373 N.E.2d 757.) The March 30, 1983, fraudulent receiving ticket allegedly completed by defendant obviously would not be covered under the indictment, and we reject the State’s argument to the contrary. The other relevant dates showing the time the offense was completed establish that the statute of limitations had expired when the indictment was filed.

On March 16, 1983, the last nondelivery of scrap allegedly took place.

As the State apparently concedes, on March 18, 1983, SCA’s check bearing that date was received by defendant personally, since the check showed no mailing address.

On March 22, 1983, defendant’s bank stamped the check when defendant cashed it. On March 23,1983, SCA’s bank paid the check.

The indictment states that by deception defendant obtained control over property, specifically “checks or orders for the payment of money.” The evidence establishes without question that the last time defendant obtained control over a “check or order for the payment of money” was on March 18, 1983. Moreover, the State’s answer to defendant’s bill of particulars was that the checks themselves were “the property herein involved.”

The theft statute defines “property” as “commercial instruments.” (Ill. Rev. Stat. 1985, ch. 38, par. 15 — 1.) The value of a commercial instrument is its “market value.” (Ill. Rev. Stat. 1985, ch. 38, par. 15 — 9(a).) The check itself, therefore, and not the cash ultimately received for that check, satisfies the theft statute.

We find that the theft of the March 18 check was complete when defendant obtained control over it. He could not commit a second, separate theft of the same check when he cashed it. See People v. Steinmann (1978), 57 Ill. App. 3d 887, 373 N.E.2d 757.

Moreover, it would be absurd to require the State to delay an arrest until a defendant actually cashed a check which he had stolen by deception. The State had every right to arrest defendant on March 18, as soon as he had the check in hand. If, as the State argues, there could be insufficient funds in SCA’s account to cover the check, or if SCA stopped payment on the check, the theft would still be complete. Under the State’s logic, the theft would not be complete if defendant could not find a bank willing to cash a check made out to Bartco, or the check was accidentally destroyed after defendant obtained it, or a third party stole the check from defendant before he could cash it.

Although the evidence was sufficient to prove defendant guilty beyond a reasonable doubt, we hold that the State failed to meet its burden of proving that the offense occurred within the applicable three-year statute of limitations. Thus, the conviction must be reversed.

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

Judgment reversed.

EGAN, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE EGAN

license: Public Domain

text:
    VETERAN SUPPLY COMPANY, Plaintiff-Appellee, v. TODD M. SWAW et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—88—3389
    Opinion filed December 15, 1989.

      Ronald W. Cobb, Jr., of Lusak & Cobb, of Chicago, for appellants.
    George J. Tagler, of Moscato, Tagler & Kupiec, of Chicago, for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendants, Todd M. Swaw and Richard J. Swaw, were officers of a corporation, Brother’s Pizza Pub, Inc., who signed corporate checks which were delivered to the plaintiff, Veteran Supply Company, in payment for goods. The checks were returned to the plaintiff because the corporate account had insufficient funds. The plaintiff sued under that part of the criminal code fixing civil liability for deceptive practices. (Ill. Rev. Stat. 1987, ch. 38, par. 17—1a.) The judge granted the plaintiff’s motion for summary judgment.

The applicable statutes are as follows (Ill. Rev. Stat. 1987, ch. 38, pars. 17—1, 17—1a):

“§17 — 1. Deceptive practices. ***
(B) General Deception
A person commits a deceptive practice when, with intent to defraud:
(d) With intent to obtain control over property or to pay for property, labor or services of another, or in satisfaction of an obligation for payment of tax under the Retailers’ Occupation Tax Act or any other tax due to the State of Illinois, he issues or delivers a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by the depository. Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered, or when such check or other order is presented for payment and dishonored on each of 2 occasions at least 7 days apart, is prima facie evidence that the offender knows that it will not be paid by the depository, and that he has the intent to defraud.”
“§17 — la. Civil Liability for Deceptive Practices. A person who issues a check or order to a payee in violation of Section 17 — l(B)(d) and who fails to pay the amount of the check or order to the payee within 30 days following a written demand delivered by certified mail to the person’s last known address, shall be liable to the payee or a person subrogated to the rights of the payee for, in addition to the amount owing upon such check or order, damages of treble the amount so owing, but in no case less than $100 nor more than $500, plus attorney fees and court costs.”

To recover under the statute, therefore, the plaintiff had to show (1) that the defendants delivered a check to obtain personal property; (2) that the defendants knew at the time that the account was insufficient to pay the check; (3) that the defendants acted with the intent to defraud; and (4) that the defendants failed to pay on demand.

The record establishes that the checks were presented and dishonored on two occasions which were at least seven days apart. Therefore, the plaintiff established prima facie evidence of intent to defraud under the terms of the statute.

Throughout the proceedings in the trial court and in the brief submitted by the defendants, who did not file a reply brief, no claim was made that the evidence failed to establish an intent to defraud. In both the trial court and the defendants’ brief in this court the only argument advanced was that the corporation, and not the defendants, was the “person” who issued the check.

The day before oral argument was to be heard, we granted the defendants leave to supplement their original brief under the mistaken assumption that it was a motion for leave to cite additional authority. During oral argument we granted the plaintiff leave to file a response to the supplemental brief. The plaintiff has filed a motion to vacate the order granting leave to file the supplemental brief, contending that the supplemental brief argues for the first time that the plaintiff failed to establish an intent to defraud. The defendants have not responded to the motion to vacate. We agree with the plaintiff’s argument that, since the defendants failed to raise the issue in the trial court or in their brief in this court, the question is waived. Downes Swimming Pool, Inc. v. North Shore National Bank (1984), 124 Ill. App. 3d 457, 464 N.E.2d 761.

We recognize that the rule we invoke is not absolute (Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831), but we think its application is appropriate here. When the judge expressed the reasons for his findings, he noted that the defendants had failed to plead any facts showing they were unaware of the status of the corporate bank account or any facts which might relieve them of culpability. In our judgment, the trial judge’s remarks invited a prayer for post-trial relief in which the defendants could have contended that the record failed to establish an intent to defraud. (See Wright v. County of Winnebago (1979), 73 Ill. App. 3d 337, 391 N.E.2d 772.) We hold, therefore, that the motion for leave to file a supplemental brief was improvidently granted, and the motion of the plaintiff to vacate the order is allowed.

The facts are not in dispute. The plaintiff sold goods to Brother’s Pizza Pub, Inc. (Brother’s). In payment, five checks were drawn on Brother’s corporate checking account and were sent to and received by the plaintiff. Four of the checks totalling $1,728.60 were signed by the defendant Todd Swaw, a corporate officer. One check in the amount of $400 was signed by Richard Swaw, an authorized signatory of the corporation. After the checks were returned to the plaintiff stamped “NSF,” the plaintiff, by its attorney, made written demands for payment within 30 days. The demands were made by certified mail on the defendants individually at their residences, not on the corporation. The amounts were never paid.

In their answer to the plaintiff’s motion for summary judgment, the defendants asserted that the amounts requested represented corporate debts of Brother’s and that the defendants signed the checks in their capacities as authorized signatories on the corporate checking account. In granting summary judgment, the trial judge relied on the “well established principle that a corporate officer cannot commit a tort as agent for the corporation and escape liability by using the corporation as a shield.” The judge found that the issuing of a non-sufficient funds check was a “similar type act” to which that principle applied. As previously noted, he found that the defendants had failed to plead any facts showing they were unaware of the status of the corporate bank account or any facts which might relieve them of culpability. We agree with the judge’s analysis of the issue and his ultimate answer to the question before him. Therefore, for purposes of this appeal, we must consider that, when the defendants signed the checks and issued them to the plaintiff, they knew that there were insufficient funds to cover the checks and that they had the intent to defraud.

The defendants’ argument, reduced to its essentials, is that since the defendants were acting on behalf of the corporation, they were not “persons” issuing the checks, as the term “person” is used in the statute. The defendants make two arguments: neither of the defendants is the “person” who issued the check, the corporation is; and there can be no liability unless the person who issues the check does so “to obtain control over property or to pay for property for his own use.” The defendants’ first argument misconstrues the law applicable to tortious acts by corporate officers as the Illinois case cited by the defendants, a contract action, illustrates. (McCracken v. Olson Cos. (1986), 149 Ill. App. 3d 104, 500 N.E.2d 487.) The other case cited by the defendants, Pearson v. All Borg (N.D. Ill. 1938), 23 F. Supp. 837, has no application. That case involved the liability of shareholders of a holding company for wrongful acts of the officers.

This case involves a tort action, fraud, as the trial judge correctly noted. The distinction between the liability of corporate officers in contract actions and their liability in tort actions was expressed in National Acceptance Co. v. Pintura Corp. (1981), 94 Ill. App. 3d 703, 706, 418 N.E.2d 1114:

“One of the purposes of a corporate entity is to immunize the corporate officer from individual liability on contracts entered into in the corporation’s behalf. In contrast, although the officer is not liable for the corporation’s torts simply by virtue of his office, corporate officer status does not insulate him from individual liability for the torts of the corporation in which he actively participates. (Stansell v. International Fellowship, Inc. (1974), 22 Ill. App. 3d 959, 318 N.E.2d 149; McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 272 N.E.2d 369; Miller v. Simon (1968), 100 Ill. App. 2d 6, 241 N.E.2d 697.) Thus a corporate officer may be liable for the negligence of the corporation (McDonald v. Frontier Lanes, Inc.); for fraud (Taylor v. Currey (1915), 192 Ill. App. 502 (abstract)); trespass to realty (Miller v. Simon); wilfully inducing breach of contract (W.P. Iverson & Co. v. Dunham Manufacturing Co. (1958), 18 Ill. App. 2d 404, 152 N.E.2d 615); and conversion (Landfield Finance Co. v. Regal Box Co. (1952), 345 Ill. App. 611, 104 N.E.2d 359 (abstract)).”

A case in point is Citizens Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315, 214 N.E.2d 612, in which an action was brought against the corporation and four of the corporate officers. In upholding judgment against an officer, the court succinctly said that “[t]he rule is that whoever participates in a fraudulent act is guilty of fraud” (Citizens Savings, 67 Ill. App. 2d at 323) and that the fact that a corporation must act through its agents has no bearing on the officer’s liability. Citizens Savings, 67 Ill. App. 2d at 325.

We hold, therefore, that the defendants as tortfeasors are personally liable to the plaintiff, and their liability is not excused because it was not shown that they received property for their own use. The defendants have cited no case in support of this proposition, which was mentioned only in the conclusion of their brief. The statute imposes no such obligation. A person violates the statute if, with intent to defraud and “[w]ith intent to obtain control over property or to pay for property *** of another, *** he issues or delivers [an NSF] check.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 17—1.) Nowhere does the statute require that the “person” acquire the property “for his own use” as contended by the defendants.

The trial judge correctly refused to accept the argument of the defendants and properly entered summary judgment in favor of the plaintiff.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.

       Justice LaPorta participated in this opinion after the resignation of Justice Quinlan, who had participated in the oral argument. Justice LaPorta has read the briefs and listened to a tape of the oral argument.


author: JUSTICE BUCKLEY JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN A. FLOWERS, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—2441
    Opinion and supplemental opinion upon rehearing filed December 18, 1989.

      Paul Biebel, Acting Public Defender, and Randolph N. Stone, Public Defender, both of Chicago (Robert P. Isaacson, Assistant Public Defender, and James B. Haddad, of Northwestern University School of Law, of counsel), for appellant.
    Richard M. Daley and Cecil A. Partee, State’s Attorneys, both of Chicago (Kenneth T. McCurry, John A. Gasiorowski, Susan J. Crane, Inge Fryklund, and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

After a jury trial, defendant, Marvin Flowers, was convicted of murder, armed robbery and armed violence and sentenced to concurrent prison terms of 40 years for murder and 15 years for armed robbery. In a previous order issued pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23), we affirmed defendant’s conviction. Defendant now appeals from the dismissal of his petition which sought relief trader the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122—1 et seq.).

The evidence adduced at trial was reported at length in our prior order affirming defendant’s conviction and will not be repeated here. Suffice it to say that testimonial and physical evidence linked defendant to the scene where the victim was robbed and beaten.

According to police, defendant gave two accounts, first he told them that as he entered the victim’s store, he saw two men beating the victim. He further stated that the pair threatened to kill him and his girl friend if he did not put his fingerprints on the bat and gun used to assault the victim. He also claimed to have driven the victim’s car away from the scene under duress. However, after he failed to explain how this could be possible when he alone was observed driving from the scene in the victim’s car and it was he who was found in possession of the gun, defendant changed his story. He then claimed that the victim had attacked him, initiating a fight between them. When the victim reached for a weapon, defendant grabbed a nearby baseball bat and struck the victim several times. Realizing that the victim would not pay the money which he owed him, defendant took cash and property from the store, loaded the items into the victim’s car and drove away.

The jury was given pattern jury instructions on the offenses of murder and voluntary manslaughter (belief of justification). (Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 7.06 (2d ed. 1981) (hereinafter IPI Criminal 2d Nos. 7.02, 7.06).) At trial, defendant neither objected to these instructions nor offered alternatives.

After deliberation, the jury signed verdict forms finding defendant guilty of both murder and voluntary manslaughter. The trial court instructed the jury that voluntary manslaughter was a lesser included offense of murder, that guilty verdicts for both offenses would not be accepted, and that they were to identify which of the two verdict forms actually reflected their determination of guilt. Thereafter, the jury returned a guilty verdict for murder.

Among the issues raised and disposed of adversely to defendant on his direct appeal were the contentions that the trial court erred in refusing to enter judgment on the voluntary manslaughter verdict where the jury returned guilty verdicts of both murder and voluntary manslaughter and that the trial court erred in its oral instruction to the jury.

Defendant subsequently filed the instant post-conviction petition seeking relief by contending that fundamental fairness mandated the relaxation of res judicata principles because certain appellate court decisions indicated that the affirmance of his conviction or sentence was improper, and that the appeal of a factually similar case, i.e., People v. Almo (1984), 123 Ill. App. 3d 406, 462 N.E.2d 835, was then pending appeal in the supreme court. In response, the trial court removed the post-conviction petition from its call pending the resolution of Almo. However, in People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203, the supreme court ruled adversely to defendant, holding that the trial court was not required to enter judgment on voluntary manslaughter where the jury presents verdicts of both murder and voluntary manslaughter and that it is proper procedure for the trial court to orally instruct the jury concerning lesser included offenses in the manner done in the instant case. Acknowledging that Almo was resolved against him, defendant filed a supplemental petition alleging that his petition for post-conviction relief'was nonetheless meritorious. The trial court dismissed the petition.

In appealing this dismissal, defendant contends that the trial court violated double jeopardy and collateral estoppel protections when it rejected the jury’s verdict of voluntary manslaughter and ordered further deliberations and that the trial court’s inherently contradictory and confusing instructions denied him due process of law.

While the instant appeal was pending before this court, the supreme court rendered its decision in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, and we allowed defendant’s request to file such decision as additional authority. Our review of this decision satisfies us that the holding of Reddick is dispositive.

In Reddick, the supreme court held that in cases where, as here, the accused is charged with murder and contends that his acts, if unjustified, were committed with either an unreasonable belief of justification or as the result of intense provocation, the IPI instructions on murder and voluntary manslaughter, i.e., IPI Criminal 2d Nos. 7.02 and 7.06, incorrectly set forth the State’s burden of proof. (Reddick, 123 Ill. 2d at 197, 526 N.E.2d at 146.) Moreover, it noted that:

“[Cjertain instructions, such as the burden of proof and elements of the offense, are essential to a fair trial and that the failure to give such instructions constitutes grave error when, viewing the record as a whole, it appears that the jury was not apprised of the People’s burden of proof.” Reddick, 123 Ill. 2d at 198, 526 N.E.2d at 147.

In a similar case, the United States Supreme Court proscribed instructions, which by the use of a presumption, relieved the State of its burden of persuasion as beyond a reasonable doubt on an essential element of the offense charged. (Francis v. Franklin (1985), 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965.) There, the court noted that it is axiomatic that due process has been violated if a conviction is not based on proof beyond a reasonable doubt of every fact necessary to constitute the crime charged and that the failure to correctly instruct the jury of the State’s burden of proof calls the integrity of the fact-finding process at the accused's trial into question. Francis, 471 U.S. at 313, 85 L. Ed. 2d at 352-53, 105 S. Ct. at 1970.

In Reddick, the supreme court noticed the instructional error, although neither defendant raised the issue before the trial court and one of them failed to raise the matter on appeal. (Reddick, 123 Ill. 2d at 198, 526 N.E.2d at 147.) The question whether the error was of sufficient gravity to relax the principles of res judicata where, as here, defendant’s conviction had become final prior to the issuance of the Reddick decision was not considered by the court.

In Yates v. Aiken (1988), 484 U.S. 211, 98 L. Ed. 2d 546, 108 S. Ct. 534, however, the United States Supreme Court gave retroactive effect to its decision in Francis even though the petitioner’s conviction had become final prior to, but where his collateral attack was pending at the time of the announcement of the Francis decision. Because the Supreme Court viewed the principle enunicated in Francis to be so fundamental to the concept of due process, it considered the rule of Francis to be an application of principles of law which were well settled at the time of the petitioner’s conviction. The decision in Francis was not viewed as creating a new principle of law which would be appliable only to convictions which had not yet become final; accordingly, the rule of Francis was applied in a pending collateral attack. Yates, 484 U.S. at 214-17, 98 L. Ed. 2d at 552-54, 108 S. Ct. at 536-37.

Addressing the propriety of applying the rule of Reddick, we note that our supreme court unequivocally held that giving the pattern jury instructions on murder and voluntary manslaughter in circumstances identical to those in the instant case failed to correctly set the State’s burden of proof and constituted grave, nonwaivable error. Thus, the court recognized the fundamental impact on the fact-finding process resulting from the use of such instructions. Moreover, the rule enunciated in Reddick was clearly predicated upon well-settled principies of law. Consequently, although defendant’s conviction was final prior to the issuance of the Reddick decision, we conclude that the rule of Reddick should be applied to defendant’s pending collateral attack on his conviction. (Yates, 484 U.S. 211, 98 L. Ed. 2d 546, 108 S. Ct. 534. Compare Allen v. Hardy (1986), 478 U.S. 255, 92 L. Ed. 2d 199, 106 S. Ct. 2878.) This is particularly appropriate in the instant case where the jury’s confusion was exhibited by its return of guilty verdicts of both offenses. Although the trial court instructed the jury concerning the law applicable to cases where the greater offense and a lesser included offense are charged, these instructions did not address the failure of the written instructions to set forth the State’s burden of proof. Applying the rule of Reddick, defendant is entitled to a new trial on the murder charge.

As to defendant’s armed robbery conviction, defendant concedes, and we agree, that the Reddick murder instruction error provides no basis for overturning defendant’s armed robbery conviction and 15-year sentence. Nonetheless, defendant argues that we should reverse defendant’s armed robbery conviction because he was denied his sixth and fourteenth amendment right to an impartial jury selected from a representative cross-section of the community. His claim rests on his assertion that the State death-qualified (“Witherspooned”) the jury without any intent to seek the death penalty.

In brief, defendant relies on the following evidence as demonstrating the State’s intent in this regard: Statistics show that the particular trial judge had never previously imposed a death penalty where a defendant had elected sentencing by the trial judge; the prosecutor admitted that his office “Witherspooned” the jury in every felony murder case; the lead prosecutor admitted that he had a preplanned vacation on the next court date following the date the jury returned its verdict; the prosecutor ultimately did not seek the death penalty because of the accused’s lack of a prior criminal record; and the facts at trial were sufficient to raise the issue of voluntary manslaughter.

Although defendant failed to raise this contention on direct appeal, defendant argues that the issue is not waived on collateral review because certain studies upon which he relies and certain admissions by the prosecutor were not obtained until after defendant’s trial and direct appeal. We need not determine whether defendant has waived this issue or has presented sufficient evidence of the State’s intent with regard to the death penalty because we do not believe that defendant has provided a basis for a constitutional violation. The United States Supreme Court has stated that the fair-cross-section requirement applies to venires and not to petit juries and that “Witherspoon excludables,” based upon studies similar to those relied upon by defendant here, are not a distinctive group for cross-section purposes. (Buchanan v. Kentucky (1987), 483 U.S. 402, 97 L. Ed. 2d 336, 107 S. Ct. 2906; Lockhart v. McCree (1986), 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758.) The Supreme Court has also rejected the claim that the impartial-jury requirement demands a balancing of jurors with different predilections and has stated that “the Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury.” Buchanan, 483 U.S. at 417, 420, 97 L. Ed. 2d at 351, 354, 107 S. Ct. at 2914, 2916; Lockhart, 476 U.S. at 178, 184, 90 L. Ed. 2d at 151, 154-55, 106 S. Ct. at 1767, 1770.

For the foregoing reasons, we affirm as to defendant’s armed robbery conviction and reverse and remand for a new trial as to defendant’s murder conviction.

Affirmed in part; vacated in part and remanded.

CAMPBELL and O’CONNOR, JJ., concur.

SUPPLEMENTAL OPINION UPON REHEARING

JUSTICE BUCKLEY

delivered the opinion of the court:

In granting the State’s petition for rehearing, we granted the State leave to raise an additional issue of whether the Reddick error was harmless in light of the felony-murder charge. We file this supplemental opinion to address this issue.

On rehearing, the State argues that we erred in vacating defendant’s murder conviction because the Reddick murder and manslaughter instruction error is irrelevant to defendant’s murder conviction, since a valid conviction for armed robbery necessarily means defendant is guilty of felony murder. Before addressing the merits of this contention, we first note defendant’s objection to our consideration of this issue because the State has raised the issue for the first time on rehearing. Due to the unique circumstances surrounding our reversal of defendant’s convictions and the fact that our previous Rule 23 order on defendant’s direct appeal did address the felony-murder question, we believe fairness and justice require that we consider the State’s claim here.

Numerous appellate courts have held that a murder conviction need not be reversed despite the existence of a Reddick error if the error can be deemed harmless beyond a reasonable doubt. (People v. Beacham (1989), 189 Ill. App. 3d 483; People v. Skipper (1988), 177 Ill. App. 3d 684, 533 N.E.2d 44 (supplemental opinion (1989), 177 Ill. App. 3d 688, 533 N.E.2d 46); People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531.) In the case at bar, the State asserts that the Reddick error is harmless because it is irrelevant to defendant’s felony-murder conviction. Under the felony-murder rule, a defendant may be found guilty of murder for a death caused during the course of a forcible felony (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a)(3)) regardless of defendant’s intent as to the killing (People v. Moore (1983), 95 Ill. 2d 404, 447 N.E.2d 1327; People v. Hickman (1974), 59 Ill. 2d 89, 319 N.E.2d 511). Because a defendant’s mental state is not in issue with felony murder, the State argues that the Reddick instructional error would not be grounds for reversing defendant’s murder conviction here. The Illinois Supreme Court accepted a similar argument in People v. Moore (1983), 95 Ill. 2d 404, 447 N.E.2d 1327, under circumstances involving a trial court’s failure to tender a voluntary manslaughter instruction.

The State’s harmless error argument rests on its assertion that the jury found defendant guilty of felony murder. At defendant’s trial, the jury found defendant guilty of armed robbery, but the jury was given and returned only a general murder verdict form. The jury instructions, as well as the indictment, however, indicated the alternative theories of murder under the murder statute, including the felony-murder theory. Confronted with these circumstances in Moore, the supreme court determined that the evidence of the armed robbery there was overwhelming so that the jury could not have convicted defendant of anything but felony murder. In the case at bar, however, the question of whether the jury’s finding that defendant committed armed robbery indicates that defendant was found guilty of felony murder is a more difficult one.

The defense theory at trial was that defendant lacked the intent to commit robbery at the time of the victim’s death. While a robbery conviction may be sustained where a defendant does not form the intent to rob until after force was used (People v. Jordan (1922), 303 Ill. 316, 135 N.E. 729; People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285), one of the requirements of felony murder is that the death be caused during the course of the forcible felony (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a)(3)). Acknowledging the jury’s armed robbery conviction, defendant asserts that we have no way of knowing whether the jury found that the killing was “in the course of the robbery” to constitute felony murder.

Before evaluating the trial evidence as it relates to this element, it is necessary that we consider the State’s argument that this court, in the Rule 23 order on defendant’s direct appeal, already found no merit to defendant’s contention that he was not properly found guilty of felony murder. On defendant’s direct appeal, we determined only that the evidence presented at trial was sufficient to sustain the jury’s murder conviction under both the intent-murder and felony-murder theories. We were not faced with the situation where one of the theories could not sustain the verdict. Where a verdict is supportable on one ground but not another, and it is impossible to tell which grounds the jury selected, the conviction is unconstitutional. Yates v. United States (1957), 354 U.S. 298, 312, 1 L. Ed. 2d 1356, 1371, 77 S. Ct. 1064, 1073; Stromberg v. California (1931), 283 U.S. 359, 368, 75 L. Ed. 1117, 1122, 51 S. Ct. 532, 535; Cramer v. Fahner (7th Cir. 1982), 683 F.2d 1376, 1379-80.

Reviewing the evidence here, while the State presented overwhelming evidence linking defendant to the scene where the victim was robbed and beaten, it presented no eyewitness account of the occurrence and it presented a statement made by defendant, albeit contradicting an earlier statement, which indicated that he did not form the intent to rob the victim until after the beating. A finding that the death occurred during the course of the armed robbery necessarily turned on the credibility of the defendant. As such, our finding that the trial would not have reached a different result without the Reddick instruction error would be an invasion of the province of the jury. (See People v. Sloan (1985), 129 Ill. App. 3d 242, 249, 472 N.E.2d 93, 98, rev’d on other grounds (1985), 111 Ill. 2d 517.) Thus, unlike Moore, the evidence here was not overwhelming so that the jury could not have found anything but that the victim’s death was caused during the course of the armed robbery.

A similar result was reached in People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285, where the jury returned verdicts for armed robbery, manslaughter and murder. In holding that the trial court erred in merging the voluntary manslaughter convictions into the murder convictions, the appellate court rejected an argument similar to that advanced here, stating “[bjecause the jury was not given a verdict form for felony-murder, and because the evidence presented here allows for the possibility that a jury could find that the [victim’s death] had not occurred while defendants were ‘committing or attempting to commit’ [citation] an armed robbery, we cannot make a de novo finding of felony murder.” Washington, 127 Ill. App. 3d at 376, 468 N.E.2d at 1293.

Accordingly, defendant is entitled to a new trial as to the murder charge.

Affirmed in part; vacated in part and remanded.

CAMPBELL, and O’CONNOR, JJ., concur.

      In his petition defendant also contended that he was denied sixth and fourteenth amendment rights by the prosecutor’s death-qualification of the jury when he did not intend to seek the death penalty. Because we have determined that this matter must be retried, the issue of death-qualification will not be addressed.

      This issue of death-qualifying the jury was also raised.

       Justice Campbell participated in this opinion after the resignation of Justice Quinlan.


text:
    JOHN BIESTEK & ASSOCIATES, LTD., Plaintiff-Appellee, v. LAURENCE KELLY, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—1159
    Opinion filed December 15, 1989.

      R.S. Maione, of Chicago, for appellant.
    Hollander & Hollander, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, John P. Biestek and Associates, Ltd., a law firm, sued defendant Laurence Kelly, its former client, for attorney fees. The trial court entered a default against defendant for failure to answer interrogatories within a seven-day period, as ordered by the court. The trial court denied defendant’s motion to vacate the judgment and defendant appeals.

On April 14, 1988, plaintiff filed suit. On May 11, 1988, defendant filed his pro se appearance. On May 23, 1988, defendant filed his answer to the complaint.

On September 1,1988, plaintiff filed a set of interrogatories.

On October 13, 1988, plaintiff filed a motion for summary judgment. The motion was continued and a briefing schedule was set.

On October 25, 1988, plaintiff filed a motion for sanctions for defendant’s failure to answer the interrogatories. Plaintiff sought either a default judgment, or an order barring defendant from providing evidence which would have been disclosed in the interrogatory answers, or an order requiring defendant to pay the attorney fees necessary to bring the motion for sanctions.

The court ordered defendant to answer the interrogatories by November 1. The court continued the motion for sanctions to November 14.

On October 27, 1988, defendant filed an answer to the complaint.

At the November 14 hearing on the motions for sanctions and for summary judgment, the court denied defendant’s request for a continuance to obtain counsel. The court continued plaintiff’s motion for summary judgment generally, and granted plaintiff’s motion for sanctions. The court struck defendant’s answer, held defendant in default, and set the matter for prove up on December 30.

On December 30, 1988, defendant failed to appear and an ex parte judgment was entered in favor of plaintiff in the amount of $6,979.55 plus costs.

On January 25, 1989, defendant filed a motion to vacate the judgment. On February 17, 1989, the trial court granted defendant leave to be represented by counsel.

On March 18, 1989, defendant tendered the interrogatory answers to plaintiff. Apparently a set of answers was filed, but without first receiving leave of court to do so.

On April 4, 1989, the court denied the motion to vacate. The court heard arguments from the attorneys, part of which focused on the question of whether the court had ever informed the previously pro se defendant that if he complied with discovery before December 30, the court would vacate the order holding defendant in default. The court then explained that it was the court’s practice to place a party in default, but that it “would all go for naught and he will get his defense” if defendant would later seek to vacate the judgment and, presumably, comply with the discovery order. The court, however, went on to state that it had been hard on plaintiff in order to protect the pro se defendant, and denied the motion to vacate the judgment.

We believe that in this case the imposition of a default for failure to answer interrogatories was a harsh sanction. The purpose of providing sanctions is to promote the flow of discovery and not to punish a noncomplying party. (Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 402 N.E.2d 352; Humboldt-Armitage Corp. v. Illinois Fair Plan Association (1980), 86 Ill. App. 3d 888, 408 N.E.2d 307; White v. Henrotin Hospital Corp. (1979), 78 Ill. App. 3d 1025, 398 N.E.2d 24.) A default judgment or dismissal with prejudice is a drastic punishment which the courts are reluctant to impose. (In re Estate of Fado (1976), 43 Ill. App. 3d 759, 357 N.E.2d 195.) It should be employed only as a last resort in order to enforce the rule of discovery. (Nehring v. First National Bank (1986), 143 Ill. App. 3d 791, 493 N.E.2d 1119.) The appropriate sanction for an unreasonable compliance with discovery rules is within the discretion of the trial court; however, that discretion must be carefully exercised in order to balance the needs of discovery and resolution of the issues on their merits. (Tennicott v. Chicago Transit Authority (1981), 103 Ill. App. 3d 607, 431 N.E.2d 1077.) A sanction is inappropriate. where a trial on the merits can be had without prejudice or hardship. (White v. Henrotin Hospital Corp. (1979), 78 Ill. App. 3d 1025, 398 N.E.2d 24.) We note that defendant at no time expressly refused to comply with the discovery request. (See Wilkins v. T. Enterprises, Inc. (1988), 177 Ill. App. 3d 514, 532 N.E.2d 469.) Indeed, at the time of the hearing on sanctions defendant requested an extension of time in order to comply and to retain counsel. We also observe that plaintiff suffered no prejudice as a result of defendant’s delay, particularly since the information requested in the interrogatories was almost entirely already known to plaintiff and was not a key to the litigation.

Nevertheless, we do not have to determine whether the entry of the default by the trial court was an abuse of discretion. Defendant filed a timely motion to vacate the judgment. He retained counsel and tendered answers to the interrogatories to plaintiff. We conclude that, under the circumstances, the trial court abused its discretion in refusing to vacate the judgment.

Accordingly, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE CAMPBELL PRESIDING JUSTICE MANNING,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—2289
    Opinion filed December 18, 1989.

      MANNING, P.J., specially concurring.
    Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Kathleen Warnick, Special Assistant State’s Attorney, and Inge Fryklund, Assistant State’s Attorney, of Counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial, the defendant, Michael Williams, was convicted of murder and sentenced to 80 years’ imprisonment. Defendant appeals from the conviction and the sentencing.

On appeal, defendant contends that (1) he was denied effective assistance of counsel; (2) his confession, fingerprints and palm prints were improperly admitted since they were the fruit of an illegal arrest without probable cause; (3) he was denied due process where the trial judge was predisposed to sentence defendant to 80 years’ imprisonment if he was convicted; (4) it was improper to impose an extended-term sentence since this crime was the product of defendant’s chronic alcoholism; (5) that the sentence of 80 years’ imprisonment was excessive; and (6) he was denied his due process right to be present where the motion for a new trial was heard and denied in his absence.

At trial, Carol Dirschle, the victim’s sister, testified that she last spoke to her sister, Karen Easton, on Thursday, May 23, 1985, at approximately 4 p.m. At that time, the victim’s boyfriend, Gary Amos, was with her at her apartment at 6240 South Kedzie in Chicago. Amos visited with the victim until approximately 3 a.m. that evening and made plans to pick the victim up at 10:30 a.m. on Saturday, May 25, 1985. On May 26, 1985, Dirschle went to her sister’s apartment along with Amos. She found her sister lying next to her bed on the floor in an unconscious state. On June 6, 1985, the victim died at Cook County Hospital.

Gary Amos testified that he accompanied Karen Easton to her apartment on Thursday evening, May 23, 1985. He stayed there until approximately 3 a.m. and before leaving made plans to pick up the victim at 10:30 a.m. on Saturday, May 25, 1986. He testified that when he came back to the apartment on Saturday morning, no one answered the door. Amos repeatedly tried to reach the victim that Saturday, including leaving a note at her apartment, but was unsuccessful. On Sunday, May 26, 1985, he went back to her apartment at about 1 p.m. and no one answered the bell. He eventually got in contact with the victim’s sister, Carol Dirschle, and went to the victim’s apartment with her sister. They entered the apartment with the key which Carol Dirschle had and found the victim lying naked on the floor alongside her bed. Amos identified photographs of how the victim looked when she was found, including a photo which showed contusions, bruises and marks on the throat area. A photograph of the victim’s bathroom showed wooden chips on the floor and a door jamb which was splintered and broken. The door latch for the bathroom lock was completely broken away from the original setting and a piece of the closing mechanism was found on the floor.

Police officer Thomas Cannova testified that on May 29, 1985, he received information that he should talk to the defendant regarding a battery. Cannova went to defendant’s third-floor apartment at 6253 South Whipple in Chicago and knocked on the door. Defendant answered the door, and Officer Cannova displayed his badge, introduced himself and told defendant that the police were conducting an investigation regarding a battery of a young woman and that he was needed for questioning. Defendant asked if he had to come to the police station, to which Officer Cannova responded that he did not, “but if he didn’t have anything to worry about, why wouldn’t he come.” Defendant agreed to accompany Officer Cannova, and the officer gave defendant his Miranda rights. Officer Cannova further stated that he did not handcuff the defendant or place him under arrest.

Defense counsel and the State stipulated that if William Cummings were called to testify, he would state that on May 23, 1985, he resided in a third-floor apartment at 6240 South Kedzie and that, at 3:15 a.m. on May 24, 1985, he was sleeping when his friend, the defendant, knocked on his door and asked him to come out and have a few drinks with him. The defendant was drunk, and Cummings told him that he was going back to bed. At that time the defendant became abusive and loud and Cummings shut the door and returned to bed.

On May 29, 1985, the defendant was brought into police headquarters for questioning. Detective Tuider testified that he and Detective Quillis first took defendant’s finger and palm prints and then proceeded to interview him. Tuider asked the defendant as to his whereabouts on the evening of May 23, 1985, and the early morning hours of May 24, 1985, and the defendant stated that he was home sleeping. Tuider then confronted the defendant with the statement by William Cummings, and the defendant stated that his original story must have been mistaken, and that he remembered going to a tavern and doing some drinking, but didn’t remember what happened after that and just remembered waking up in the morning at home. Detective Tuider left the defendant in the interview room for several hours. When Tuider returned, the defendant asked to speak to an assistant State’s Attorney.

Assistant State’s Attorney James Kogut testified that he spoke to defendant at about 11:15 p.m. on May 29, 1985, explained that he was an assistant State’s Attorney and not defendant’s lawyer, and advised defendant of his rights. Defendant initially stated that he had been drinking and went home after going to the Last Minute Lounge on 63rd Street in Chicago and that he did not remember anything else. Kogut then confronted the defendant with evidence he had linking defendant to the scene. Defendant then stated he remembered being at the building but did not remember knocking on Cummings’ door. Defendant stated he did not remember his whereabouts from 3 a.m. to 3:45 a.m. Kogut told the defendant that he would be on duty until 7 a.m. and to call him if he remembered anything. Defendant asked to speak to Kogut again at about 1 a.m. Kogut reentered the interview room and readvised the defendant of his Miranda rights. The defendant told Kogut that he had been drinking at the Last Minute Lounge beginning at 4:30 p.m. on May 23, 1985, and left the lounge to find someone to continue partying with him. He went to the home of his friend, William Cummings, but Cummings told him to go away and slammed the door in his face. A door then opened across the hall, and there was a girl standing there. The defendant stated he pushed his way in and had a conversation with the girl and tried to talk the girl into partying with him. He indicated he had a beer with the girl, and thereafter, she fled into the bathroom and locked the door, but the defendant pushed the door down. The defendant grabbed her throat and dragged her into the bedroom. Defendant’s statement was reduced to writing, and he was placed under arrest.

The parties stipulated that Dr. Robert Stein, the Cook County medical examiner, would testify that the cause of the victim’s death was manual strangulation complicated by bronchial pneumonia and empyema. It was also stipulated that he found contusions on the victim’s forehead and arm and abrasions on her nose and leg. The parties also stipulated that the testimony of Chicago police department fingerprint expert John A. Olejnicjak would establish that the defendant’s left palm print and thumb print were found on the exterior of the bathroom door in the victim’s apartment.

Defendant first argues that his conviction should be reversed because he was denied the effective assistance of counsel where the assistant public defender did not cross-examine the State’s witnesses, did not present any evidence, did not make any opening or closing argument and failed to participate in the bench trial before the trial court. Defendant argues that under these circumstances, prejudice to him must be presumed. The State maintains that where the strategy of the defendant and his attorney was to proceed by way of a bench trial which consisted largely of stipulated evidence and which was designed to preserve defendant’s pretrial motions and to spare him the death penalty, the defendant was not denied effective assistance of counsel.

In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the Supreme Court established the requisites for a claim of ineffective assistance of counsel. To prevail, a defendant must show: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) that deficiencies prejudiced the defendant thereby depriving him of a fair trial, and but for such deficiencies the result of the proceedings would have been different. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064.

In United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039, the companion case to Strickland, the Court stressed the need for counsel to act as a true advocate of the accused. The Court concluded “[t]he right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” (Cronic, 466 U.S. at 656, 80 L. Ed. 2d at 666, 104 S. Ct. at 2045.) This constitutional guarantee is violated when the process loses its character as confrontation between adversaries. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039.

Based on the record presented before us, it cannot be said that the public defender acted as an advocate for defendant. At the beginning of the trial in the case at bar, the parties agreed to litigate defendant’s motion to quash arrest and motion to suppress statements during the trial. The defense counsel requested that the defendant undergo a behavioral clinical examination, including an alcohol EEC. The results of the examination revealed no abnormalities. Subsequently, the defendant waived a jury trial, and the trial judge explained to defendant the difference between a bench and a jury trial, and the following exchange took place:

“THE COURT: Do you understand a lot of this trial is going in on stipulation? You understand on a finding of guilty here, I could sentence you to basically to capital punishment, number one, which is death; or number two, I could sentence you to natural life; or I could give you up to eighty years. Do you understand that?
MR. WILLIAMS: Yes, I understand.
THE COURT: Okay. I understand — you understand that I could give you up to twenty to eighty, and I said to your attorney if I found you guilty, I would give you at least eighty years. You understand that?
MR. WILLIAMS: Yes, I understand.
THE COURT: Nobody promised you anything, nobody threatened you in any way, is that correct?
MR. WILLIAMS: Yes.”

Both the State and defense counsel waived opening arguments. Carol Dirschle, Gary Amos and Officer Cannova testified as to the circumstances surrounding the victim’s death. The assistant public defender did not cross-examine these witnesses. He noted for the record that he had filed a motion to quash defendant’s arrest and he would be standing on that motion. The testimony of William Cummings was admitted by stipulation. Detective Tuider testified as to his contact and interrogation with the defendant and was not cross-examined. The assistant public defender stated that he had filed a motion to suppress defendant’s confession. Assistant State’s Attorney James Kogut testified and was not cross-examined. The parties stipulated to the testimony of Dr. Stein, who performed the autopsy on the victim. The State rested its case, and the assistant public defender made a motion for a directed finding as to numerous counts of the indictment. The court denied the motion, and the assistant public defender presented no evidence on behalf of defendant. Both the State and defense counsel waived closing arguments, and the trial court found the defendant guilty. Subsequently, at the sentencing phase, the assistant public defender filed five motions regarding the constitutionality of the death penalty statute. The assistant public defender also filed a memorandum in mitigation detailing defendant’s long-term chronic and acute alcoholism. Since the defense counsel did not present an opening or closing statement, did not conduct cross-examination of any of the State’s witnesses and failed to obtain a ruling on the pretrial motions, in our judgment, there was a failure to subject the prosecution’s case to meaningful adversarial testing. As such, the assistant public defender’s lack of participation at trial deprived defendant of the effective assistance of counsel at trial. See Martin v. Rose (6th Cir. 1984), 744 F.2d 1245; People v. Garza (1989), 180 Ill. App. 3d 263, 535 N.E.2d 968; People v. Coss (1977), 45 Ill. App. 3d 539, 359 N.E.2d 1172.

The State contends that although the defendant technically did not plead guilty, his actions were the functional equivalent of a guilty plea. There is no indication in the record, however, that the defendant at any time wanted to plead guilty, and an attorney cannot make that decision for his client. (People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513.) The only plea entered by the defendant was the plea of not guilty entered at the arraignment. There is no further indication in the record that defendant ever indicated a willingness to withdraw his not guilty plea and enter a guilty plea. The public defender’s strategy, which for all practical purposes conceded his client’s guilt, but attempted to show that defendant was undeserving of the death penalty, was totally at odds with defendant’s plea of not guilty. “[E]ven when no theory of defense is available, if the decision to stand trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond a reasonable doubt.” United States v. Cronic (1984), 466 U.S. at 656 n.19, 80 L. Ed. 2d at 666 n.19, 104 S. Ct. at 2045-46 n.19.

Defendant contends that prejudice in this case must be presumed, citing People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513. We agree. In Hattery, the defendant was charged with murder and pleaded not guilty and the defense counsel, in an attempt to avoid the death penalty, admitted the defendant’s guilt in his opening statement to the jury and attempted to establish on cross-examination that the defendant was compelled to kill his victims. The court reversed his conviction, holding that he was denied the effective assistance of counsel where the prosecution’s case was not subjected to the meaningful adversarial testing required by the sixth amendment and, therefore, prejudice was presumed. Further, the Hattery court held that where a defendant enters a plea of not guilty but defense counsel’s strategy is not structured around his plea, the record must show that defendant knowingly and intelligently consented to the strategy. In the case at bar, there is no evidence that the defendant consented to a trial by stipulation and, as the Hattery opinion states, consent will not be presumed from a silent record. The record reveals that the defendant did not respond when asked whether he understood that a large part of the trial was proceeding on stipulations. Since there is no evidence in the record that defendant consented to the assistant public defender’s strategy and because his defense was not structured around defendant’s plea of not guilty, we hold defendant was denied the effective assistance of counsel in violation of the sixth amendment.

Since this case must be remanded for a new trial, we find it unnecessary to consider the remaining issues raised by the defendant. We note, however, that we believe the evidence presented at trial was sufficient to conclude that the defendant was guilty beyond a reasonable doubt. We do not mean we are making a finding as to the defendant’s guilt or innocence which would be binding on retrial; but, rather, our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting the defendant to double jeopardy. People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and this cause is remanded for a new trial.

Reversed and remanded.

BUCKLEY, J., concurs.

PRESIDING JUSTICE MANNING,

specially concurring:

While I agree that defendant has established the requisites of ineffective assistance of counsel, and hence, agree with the result reached here today, I believe that we need to address in detail the inappropriateness of the procedures utilized in this particular case. Further, I wish to address the basis for my concurrence in the majority’s finding that defendant was deprived of his sixth amendment right to effective assistance of counsel in light of and in response to the State's assertion that this stipulation was tantamount to a plea of guilty.

Under certain circumstances, most of the procedures utilized in the case at bar would be perfectly proper. The State asserts that the defendant’s stipulation was tantamount to a plea of guilty. With that I agree. That, though, is where our agreement ends. Contrary to the State’s assertion, not all stipulations of fact transform a conviction into a guilty plea. (Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365, 372, 418 N.E.2d 744.) Specifically, where a defendant stipulates to facts underlying an offense but the decision of guilt or innocence based on those facts is left to the trier of facts, the stipulation is not the equivalent of a guilty plea. (Thornton, 84 Ill. 2d at 372.) However, our courts have held that where a defense, either factual or legal, is not presented, a stipulated bench trial is tantamount to a plea of guilty, and Rule 402 (107 Ill. 2d R. 402) admonitions are required. (People v. Carlton (1980), 81 Ill. App. 3d 738, 743, 402 N.E.2d 310; People v. Sampson (1985), 130 Ill. App. 3d 438, 441-42, 473 N.E.2d 1002.) In light of these decisions, it can be concluded that where a defendant does plead guilty or stipulates to the facts without asserting a defense, that defendant is entitled to all of the safeguards afforded by compliance with Supreme Court Rule 402. Mr. Williams did not receive such safeguards.

In the instant case, implicit from the record is the fact that defendant’s purpose in stipulating to the facts was twofold, i.e., to escape the death penalty and to preserve any legal defenses set forth in defendant’s pretrial motion for purposes of appeal. Hence, under certain circumstances this partially stipulated bench trial would not be tantamount to a plea, and no Rule 402 admonitions would be required. The problem arises, however, when in examining the record, I find there is no indication that a defense was established or included in the stipulation. While the record suggests that defendant’s intentions were to include a defense, his attorney’s efforts fell far short by his failure to advocate in defendant’s behalf in connection with the motion to suppress. Unlike the case of People v. Carlton, where immediately prior to a stipulated bench trial, the defendant interposed an objection at trial to certain identification testimony which had been the subject of a contested hearing on a motion to quash and suppress evidence, in the case at bar, while a motion to suppress was filed, there was no meaningful hearing due to the lack of cross-examination, no presentation of defense evidence, no objection to the introduction of the evidence referred to in the motion to suppress, in fact a stipulation to it, and most importantly, no ruling on the motion.

In People v. Sullivan (1979), 72 Ill. App. 3d 533, 536-37, 391 N.E.2d 241, citing People v. Russ (1975), 31 Ill. App. 3d 385, 334 N.E.2d 108, this court held that where the trial court is presented with a defense, either actually established or included in the stipulation, a stipulated bench trial requires no Rule 402 admonitions. (See also People v. Carlton (1980), 81 Ill. App. 3d 738, 743-44, 402 N.E.2d 310.) In the instant case, while the defense attorney said he was standing on the motion, he actually on behalf of defendant presented no evidence on the motion, did not cross-examine any witnesses, presented no argument to support his theory, and sought no ruling.

While the majority finds that defendant did not consent to a stipulated trial, I think such an assertion belies the record, since implicit in his silence after stating that he understood was consent. The court inquired as follows:

“THE COURT: Do you understand a lot of this trial is going in on stipulation? You understand on a finding of guilty here, I could sentence you to basically to capital punishment, number one, which is death; or number two, I could sentence you to natural life; or I could give you up to eighty years. Do you understand that?
MR. WILLIAMS: Yes, I understand.”

Based upon the filing of the motion to suppress the evidence, it appears clear that defendant sought to establish a defense. However, the failure of the defense attorney to advocate in connection with the motion and to secure a ruling on the motion to suppress, in my judgment, falls short of establishing a defense or including it in the stipulation. At the very least the defendant was entitled to Rule 402 admonitions. Had such admonitions been given, the defendant could have articulated any displeasure he might have felt with such proceedings, if they were contrary to his desires, and the court would have been informed regarding his exact intentions.

For the foregoing reasons, I agree that in this particular instance, defense counsel’s representation fell far short of being effective, defendant was prejudiced thereby, and because it lacked the adversarial qualities upon which our judicial system is predicated, the defendant has easily met the Strickland v. Washington standards.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE GUIDER, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2391
    Opinion filed December 18, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Andrew LeFevour, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Tyrone Guider, the defendant, brings this appeal from a dismissal of his post-conviction petition without an evidentiary hearing in the circuit court of Cook County. On January 20, 1982, the defendant entered a guilty plea to indictment No. 81 — C—6679, charging him with armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2), deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 3(a)), home invasion (Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 11(a)(1), (a)(2)), aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(b)(1)) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2). He also pled guilty to indictment No. 80 — C—8924, which charged him with home invasion (Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 11(a)(1), (a)(2)), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2), attempted murder, attempted rape, and attempted burglary (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4). The trial court sentenced the defendant to 20 years’ imprisonment to be served concurrently.

On February 17, 1982, the defendant filed a motion to withdraw his guilty pleas which was denied by the trial court. The defendant appealed that denial, and on November 1, 1982, we affirmed the defendant’s conviction and sentence. (People v. Guider (1st Dist. 1982), No. 82—0508 (unpublished order under Supreme Court Rule 23) (hereinafter referred to as Guider I).) Thereafter, on November 8, 1985, the defendant filed a pro se petition for post-conviction relief, and the circuit court appointed counsel. A supplemental petition for post-conviction relief was presented to the trial court on July 15, 1987, alleging that the defendant’s guilty pleas were coerced. This assertion is based upon his attorney’s advice to him that, predicated upon the pending charges, he could be sentenced to 120 years’ imprisonment under the applicable statutes. Defendant further alleged in his petition that, relative to indictment No. 81 — C—6679, he was denied the effective assistance of counsel due to his attorney’s failure to investigate an alibi defense.

On July 15, 1987, the trial court granted the State’s motion to dismiss the petition for post-conviction relief without an evidentiary hearing on the grounds that the defendant had received extensive admonitions from Judge Suria, yet he persisted in his plea of guilty which was determined by Judge Suria to be voluntary. The defendant now appeals that dismissal under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.). We affirm the judgment of the circuit court of Cook County.

The defendant argues that he was entitled to an evidentiary hearing, and the trial court erred in dismissing his petition since he was denied his due process rights to a fair trial guaranteed by the fourteenth amendment. He further argues that he was denied his sixth amendment right to effective assistance of counsel by virtue of his attorney’s failure to investigate an alibi defense, resulting in a coerced guilty plea. He attempts to support these arguments with an assertion that, as to the charges contained in indictment No. 81 — C—6679, on September 18, 1980, the date the incident occurred, he was working at the Matushita Industrial Company, his usual place of employment, and the employee time records would have established an alibi.

The State argues that the trial court properly dismissed defendant’s post-conviction petition without an evidentiary hearing where the defendant failed to substantiate his ineffective assistance of counsel claim. We agree. It is well established that a proceeding under the Post-Conviction Hearing Act is not an appeal, per se, but a collateral attack on the judgment. (People v. Caballero (1989), 126 Ill. 2d 248, 258, 533 N.E.2d 1089; People v. Owens (1989), 129 Ill. 2d 303, 307; People v. Albanese (1988), 125 Ill. 2d 100, 104, 531 N.E.2d 17; People v. James (1986), 111 Ill. 2d 283, 291, 489 N.E.2d 1350.) It is also well settled that a post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right, but only when his petition sets forth allegations supported by the trial record or by affidavit which makes a substantial showing that the defendant’s constitutional rights have been violated. Caballero, 126 Ill. 2d at 258-59; People v. Owens (1989), 129 Ill. 2d 303, 308; People v. Gaines (1984), 105 Ill. 2d 79, 91-92, 473 N.E.2d 868.

The purpose of the post-conviction proceeding is not to determine the defendant’s guilt or innocence. (People v. Stewart (1988), 123 Ill. 2d 368, 372, 528 N.E.2d 631; Albanese, 125 Ill. 2d at 104.) Instead, it is a proceeding limited by the doctrines of res judicata and waiver, which permit inquiry into the constitutional issues involving the original conviction that have not been previously adjudicated or could have been. (People v. Stewart (1988), 121 Ill. 2d 93, 97; People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830.) Therefore, a reviewing court’s judgment on a prior appeal is res judicata as to all issues actually decided, and any issue that could have been raised in a direct appeal before a court of review is thereafter barred under the waiver doctrine if not presented. (Albanese, 125 Ill. 2d at 105; People v. Kubat (1986), 114 Ill. 2d 424, 436, 501 N.E.2d 111; Silagy, 116 Ill. 2d at 365.) Moreover, relief is not granted under the Post-Conviction Hearing Act by the petitioner's rephrasing of issues in constitutional terms that have been previously raised in his petition. Silagy, 116 Ill. 2d at 371; Gaines, 105 Ill. 2d at 90.

In the present case, the defendant’s argument that his guilty plea was involuntary in light of the information received from his attorney that he could be sentenced to 120 years’ imprisonment was raised and decided in Guider I. Therefore, the doctrine of res judicata applies. In Guider I we rejected the defendant’s claim that his plea was involuntary by specifically noting that “the record shows that defendant was admonished very comprehensively by the trial court and that his plea was made voluntarily and intelligently.” Consequently, the issue concerning the voluntariness of the plea is barred. See Stewart, 123 Ill. 2d at 372-73.

The second issue raised by the defendant, that he was denied the effective assistance of counsel due to his attorney’s failure to investigate an alibi defense, may also be deemed as waived since he raised that issue on his direct appeal. (Kubat, 114 Ill. 2d at 436; Gaines, 105 Ill. 2d at 88.) Specifically, in Guider I we noted that the record did not support the defendant’s contention that his attorney failed to competently represent him. However, our supreme court has frequently held that the doctrines of waiver and res judicata will not be applied in a post-conviction proceeding where such application would be fundamentally unfair. Albanese, 125 Ill. 2d at 106; People v. Cihlar (1986), 111 Ill. 2d 212, 218, 489 N.E.2d 859.

In light of our finding that waiver has occurred and res judicata applies, if we were to consider the defendant’s claim under the doctrine of fundamental fairness, the result would be the same. The defendant contends that he was denied his sixth amendment right to the effective assistance of counsel by his attorney’s failure to investigate an alibi defense regarding the charges contained in indictment No. 81 — C—6679, and therefore, he is entitled to an evidentiary hearing. Defendant supports this contention with an assertion that on the date the incident occurred, he was working at the Matushita Industrial Company. In order for the defendant to establish his ineffective assistance of counsel claim, he must show that counsel’s performance was so deficient that it fell below an objective standard of reasonableness and but for counsel’s errors, the result of the proceedings would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068. People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, cert denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) In Strickland v. Washington the court further held: “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. *** If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland v. Washington, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Walker (1985), 109 Ill. 2d 484, 504, 488 N.E.2d 529.

Our supreme court has recently held that in order for a defendant to establish prejudice, he must show, “not simply a possibility of prejudice, but that the claimed [prejudice] worked to his actual and substantial disadvantage.” (People v. Owens (1989), 129 Ill. 2d 303, 318; United, States v. Frady (1982), 456 U.S. 152, 170, 71 L. Ed. 2d 816, 832, 102 S. Ct. 1584, 1596.) In the present case, the defendant failed to show that the results of the proceedings would have been different had his alibi defense been further investigated. Moreover, he has failed to make a showing that he was substantially prejudiced by counsel’s performance. Although defendant presented affidavits and records in support of indictment No. 81 — C—6679 indicating that he worked 40 hours plus eight hours overtime for the week of September 18, 1980, his attendance records did not specifically indicate that he was at work on September 18, 1980, during the time that the crime was committed, and he failed to produce any affidavits from co-workers to support his alibi. Furthermore, the defendant completely failed to present an alibi for indictment No. 80 — 8924, in which he was charged with home invasion, armed violence, attempted murder, and attempted rape for which the defendant received a sentence of 20 years’ imprisonment to be served concurrently. Accordingly, we conclude that the defendant was not prejudiced by his counsel’s failure to pursue his alibi defense. Therefore, his claim that he was denied the effective assistance of counsel must fail.

Defendant correctly asserts that before a guilty plea can be accepted, due process requires that it must be made knowingly, intelligently and voluntarily. (Boykin v. Alabama (1969), 395 U.S. 238, 245, 23 L. Ed. 2d 274, 280, 89 S. Ct. 1709, 1713; People v. Hillenbrand (1988), 121 Ill. 2d 537, 554, 521 N.E.2d 900.) However, where a defendant enters a plea based upon the advice of counsel, the voluntariness of the plea is dependant upon whether the advice given by counsel “was within the range of competence demanded of attorneys in criminal cases.” (Hill v. Lockhart (1985), 474 U.S. 52, 56, 88 L. Ed. 2d 203, 208, 106 S. Ct. 366, 369, quoting McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1449.) In the instant case, the record reveals that the defendant’s guilty plea was accepted by the trial court only after the defendant was properly admonished. Moreover, counsel's admonishment that the defendant could be sentenced to 120 years’ imprisonment was statutorily correct. The defendant could have been sentenced to 125 years’ imprisonment under indictment No. 81 — C—6679. Deviate sexual assault, home invasion, armed robbery and armed violence are Class X felonies with each carrying sentences of not less than 6 years and not more than 30 years’ imprisonment. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1.) The sentence for aggravated battery, a Class 3 felony, is not less than two years and not more than five years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—1.) Under indictment No. 80 — C—8924, the defendant could have received a sentence of 110 years’ imprisonment. Home invasion, armed violence and attempted murder are Class X felonies with each carrying sentences of not less than 6 years and not more then 30 years’ imprisonment. The sentence for attempted rape, a Class 1 felony, is not less than 4 years and not more than 15 years’ imprisonment and attempted burglary, a Class 3 felony, is not less than two years and not more than five years’ imprisonment. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—1.) Since the combined sentences as stated by counsel are within the statutory range, we cannot say that the defendant’s plea was involuntarily made nor can we say that he was prejudiced by counsel’s admonishment.

Summary dismissals of nonmeritorious post-conviction petitions without an evidentiary hearing are permitted under the Post-Conviction Hearing Act. (James, 111 Ill. 2d at 292; Silagy, 116 Ill. 2d at 373.) Moreover, a determination by the trial court will not be overturned on review in a post-conviction proceeding unless the determination was manifestly erroneous. (Albanese, 125 Ill. 2d at 109; People v. Griffin (1985), 109 Ill. 2d 293, 303, 487 N.E.2d 599.) Upon a review of the record, we have concluded that the defendant’s claims are not supported by the record and he has failed to make a substantial showing that his constitutional rights have been violated, entitling him to post-conviction relief. Furthermore, we cannot say that the trial court’s denial of an evidentiary hearing on his claim was manifestly erroneous. Accordingly, we hold that the trial court properly dismissed the defendant’s supplemental petition for post-conviction relief without an evidentiary hearing.

For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BUCKLEY and O’CONNOR, JJ„ concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL O’DONNELL, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—3737
    Opinion filed December 18, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Jeffrey M. Howard, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, David Butzen, and Dominick T. Dimaggio, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Daniel O’Donnell was convicted of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19—3(a)), after a bench trial. O’Donnell appeals, arguing that his waiver of a jury trial was not made knowingly or understandingly. For the reasons below, we affirm.

On May 11, 1987, Chicago police officers Raymond Bell and Thomas Puzinski answered a burglar alarm at the home of Ms. Susan Mauro. At Ms. Mauro’s residence, Officer Bell walked to the back of the house and noticed the back door ajar with signs of forced entry. Returning to the front of the house, Officer Bell saw someone leaving the house through the bathroom window,' carrying a pink-colored sack.

Officer Bell chased the suspect down a gangway toward an alley, where the suspect dropped the sack. The officers radioed for assistance, and the suspect was caught. Throughout the entire chase, Officer Bell had not lost sight of the suspect.

The suspect was identified as the defendant, Daniel O’Donnell, also known as Harold Sonnenberg, William T. Boley, and John Fleming. The police recovered the pink sack, which was a pillow case containing a clock, several screwdrivers, jewelry, a cosmetic kit, and a pair of gloves. O’Donnell was charged with residential burglary.

Before trial, O’Donnell waived his right to a jury trial in the following colloquy:

“DEFENSE COUNSEL: Mr. O’Donnell is present in open court, your honor. At this time, he’s executing a jury waiver.
THE COURT: Mr. O’Donnell, do you understand that under the Constitution, you are entitled to a trial by jury?
DEFENDANT: Yes, your Honor.
THE COURT: Now, a jury trial would involve selecting 12 people from our community. We have about 50 or 60 people in here and we’d talk to them find out things about them, and your lawyer would participate and the State’s Attorney would participate. Eventually, we would select 12 people to sit as a jury.
Those 12 people would hear the evidence and the arguments of the lawyers. And I would give them very specific instructions as to what the law is that applies to your case.
And in a jury trial, those 12 jurors would decide by unanimous vote, at some point, whether or not you are going to be found guilty or not guilty.
Do you understand what a jury trial is?
DEFENDANT: Yes, your Honor.
THE COURT: When you signed [the waiver] did you understand, you were saying, I Dan O’Donnell, want to give up my right to a jury trial? Is that what you want to do?
DEFENDANT: Yes, your honor.”

At trial, the police officers testified to the events leading to O’Donnell’s arrest. Ms. Mauro identified as her property the pink pillow case and its contents, except for the screwdrivers and gloves.

O’Donnell testified that he had run from the police because he had just bought some drugs in the neighborhood and thought the police were making a drug raid. O’Donnell denied carrying anything during the chase. The prosecution impeached O’Donnell with evidence of two prior convictions for burglary. The trial court found O’Donnell guilty of residential burglary and sentenced him to eight years’ imprisonment.

O’Donnell argues that the trial court’s explanations concerning a jury trial were insufficient to allow an informed waiver because the trial court failed to explain the consequences of a non-unanimous verdict. O’Donnell urges that a trial court must inform a defendant that if just one juror votes contrary to the majority to deadlock or “hang” the jury, a new trial will be held if the State chooses to exercise that option. Although O’Donnell raises an issue of first impression, his argument is without merit.

O’Donnell contends that although the issue of informed waiver was not preserved, it affected his substantial rights and should be reviewed under the doctrine of clear error. But the facts show that this was not a close case. The police responded to a burglary in progress, saw signs of forced entry at the victim’s house, and saw O’Donnell leave the house with property that belonged to the victim. O’Donnell offered a different version of events, but was properly impeached. The record offers not a scintilla of doubt that the prosecution’s witnesses were credible. O’Donnell does not question the sufficiency or reliability of any of the evidence, nor does he suggest that the evidence was presented in any prejudicial way. The reliability of the evidence and its presentation cast grave doubt on whether a jury could reasonably have returned a verdict of not guilty. Given the overwhelming evidence, an uninformed waiver of a jury trial would not have constituted prejudicial error. O’Donnell’s argument does not meet the requirements for review under the doctrine of plain error.

Even were the court to consider the merits of O’Donnell’s argument, he cannot prevail. O’Donnell concedes that the trial court’s procedure in obtaining the waiver was correct so far as it went, but argues that it did not go far enough. O’Donnell contends that once the trial court explained the need for a unanimous jury verdict, it was required to explain the results of a hung jury. No contention such as O’Donnell’s has been addressed in any jurisdiction, but it is without merit.

The historical basis for the jury trial lies in the desire to protect the individual defendant against abuses of power by the State. Thus the right to a jury trial protects the right to have an authentic representation of the community ascertain the relevant facts and pass on the ultimate question of guilt or innocence. (See Spaziano v. Florida (1984), 468 U.S. 447, 482-83, 82 L. Ed. 2d 340, 367, 104 S. Ct. 3154, 3174 (Stevens, J., dissenting).) The sixth amendment guarantees the defendant’s right to a trial by jury, but does not include the right to a unanimous verdict. (Apodaca v. Oregon (1972), 406 U.S. 404, 32 L. Ed. 2d 184, 92 S. Ct. 1628.) Therefore, discussion of the effect of a non-unanimous verdict, where such is required for a guilty verdict, does not implicate the sixth amendment right to a jury trial.

Discussions of non-unanimous verdicts may affect choices of trial strategy, however, which is more properly the province of defense counsel. The trial court may provide the information, since it takes little time to impart and may greatly benefit the defendant, but the court is not obligated to discuss non-unanimous verdicts to enable the defendant to intelligently waive his sixth amendment right to a jury trial. Where a defendant is informed of his right to a trial by a jury that will determine his guilt or innocence, and of his ability to participate in selecting the jury, he has the minimum information necessary to exercise that right or waive it, because that is what the right encompasses.

Here, O’Donnell was an “experienced” defendant who signed a waiver of a trial by jury in open court, after the court explained that in a trial by jury, both O’Donnell’s attorney and the State’s Attorney would participate in selection of the jury from members of the community. O’Donnell received, and indicated that he understood, the information necessary to intelligently waive his right to a jury trial. No further information was constitutionally required from the trial court, under the circumstances of this case, to enable O’Donnell to execute an informed waiver of his right to a jury trial.

In summary, the issue O’Donnell raised was not preserved for appeal, and given the reliability and the overwhelming nature of the evidence of his guilt, O’Donnell cannot rely on the plain error doctrine to seek review. O’Donnell could not prevail on the merits of his appeal in any event. He received the information necessary to make an informed waiver of his right to a jury trial, and no discussion of the effects of non-unanimous verdicts was necessary. Accordingly, we affirm O’Donnell’s conviction.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.