author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFRED BROOKS, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—1320
    Opinion filed May 17, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Thomas M. Donnelly, of State Appellate Defender’s Office, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Sally L. Dilgart, and Anne C. Scrivner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Alfred Brooks, was convicted by a jury of the attempted murder of a Chicago police officer, Brian Daly, and was sentenced to six years’ imprisonment. He first contends that he was not proved guilty beyond a reasonable doubt.

Lori Clark, Tyrone Clark and Steven Small were all cousins of the defendant. Lori Clark lived with her grandmother, Sadie Brooks, at 5845 South Winchester in Chicago. On January 12, 1987, Lori was in the dining room of her home typing a paper when the defendant and another cousin, Frank Chandler, arrived. Tyrone Clark and Steven Small had been in the living room drinking beer practically all day. Lori and the defendant got into an argument about how Lori’s family was spending the money they had received as a result of her mother’s death. Lori got up and went into the kitchen. The defendant walked into the living room, where his other cousins were sitting. She could see all four men from the kitchen.

She testified that the defendant, Small, and Tyrone Clark were arguing, and that the defendant tried to pour beer on Small. Small grabbed the defendant’s hand, and they got into a tussle. Small pushed the defendant toward some boxes, and the defendant pulled out a handgun from inside his coat. He put the barrel of the gun against Small’s head. She went back to the kitchen and dialed 911. She gave her address and told the police that there was an argument and that someone pulled a gun.

She returned to the living room and saw the defendant put the gun back into his coat. Small left the house. The defendant then “started saying things like, ‘You see what I’m made of.’ ” A few seconds later, there was a knock at the door. Chandler asked who it was, and persons on the other side of the door answered, “The police.” The defendant ran toward the back door while Chandler opened the front door. Two police officers entered the house, and Lori told them that the defendant had gone out the back door, and that he still had a gun. The two officers ran through the house toward the back door. A couple of. seconds passed, and then Lori heard a shot. After a few more seconds, there were two more shots. She did not see who fired the shots, and she could not tell from which direction they came.

Chicago police officers John White, Ron Armata and Brian Daly were assigned to the Seventh District tactical unit on January 12, 1987. They were all in plainclothes and in the same unmarked car. White was driving. At approximately 6:19 p.m., they responded to a radio call regarding a domestic disturbance and a man with a gun at 5845 South Winchester. They arrived at the house in about one minute.

Daly testified that he knocked on the front door. A female voice inside asked who it was, and the officers responded loudly, “Police.” The door opened, and Lori Clark and Chandler were standing inside the doorway. Lori said, “The man’s got a gun,” and pointed toward the interior of the house. Daly saw the defendant standing in the living room; the defendant looked right at Daly and then ran toward the back of the house. Daly ran down the front stairs and started to go through the north gangway. White saw the defendant running toward the back door. As White approached the back door, he heard Daly shout, “Police, hold it.”

Daly testified that the defendant was in the backyard when he swung around and raised his gun with two hands, in a combat stance, and then the defendant fired a shot at Daly. Daly froze for a second; he thought he was getting shot. Then he returned fire once. The defendant spun around and started running. Daly started after him, and he fired two more shots at the defendant.

White testified that when he reached the back door, he saw the defendant standing in the backyard with his hands together. He then saw a muzzle flash come from the end of the defendant’s extended arms, and he heard a gunshot; the defendant was holding a gun and shooting in the direction of Daly. White was 20 to 30 feet away from the defendant. There was a pillar between White and the defendant which prevented White from shooting at the defendant. White said he could not see Daly when the defendant pulled the trigger, but he was certain that the defendant was shooting at Daly, because a split second later Daly emerged, firing.

The defendant ran eastward. The three officers chased the defendant, who fell in the snow in a vacant lot. The defendant got up and continued running toward Wolcott Avenue. Daly saw him dive under a porch. Daly yelled to White that he had found the defendant. Daly told the defendant to come out showing his hands. The defendant came out with his hands up and was arrested by Daly and White. They searched the defendant and the immediate area but did not find a gun; however, they did find a black leather holster in the defendant’s jacket.

Daly and Armata retraced the steps of the chase to look for a gun. They found the gun lying in the snow in the vacant lot at exactly the spot where the defendant had fallen. Daly picked up the gun by the wooden grips and placed it in the trunk of the squad car. He did not open the gun or touch the metal surface. When the officers arrived at the police station, one of them removed the gun from the trunk, carrying it by the wooden handgrips. White inventoried the gun, and an evidence technician dusted it for prints. No fingerprints were found on the gun, which contained one spent cartridge and five live rounds.

Ronald Salter, an employee of the Chicago police department’s crime detection laboratory, administered a gunshot-residue test to the defendant. He sprayed the defendant’s hands with a solution, and then he swabbed them. He then sealed the swabs in cartridges and sent them to the laboratory for further processing.

Salter’s partner, Ronald Ferrari, examined the gun found in the vacant lot. He unloaded the gun before he dusted it for prints. He did not see any residue in the cylinder, but he did see residue in the barrel. He testified that residue in the barrel does not indicate when the gun was fired. He said that there is no way to determine whether a gun has been fired recently.

Robert Bertucci, an assistant State’s Attorney, testified that he spoke with the defendant at the Seventh District police station on the night of the arrest. The defendant said that the holster he was wearing when he was arrested was for a BB gun that he owned.

The defendant testified that Lori Clark, Steven Small, Tyrone Clark and Frank Chandler were at his grandmother’s house at 5845 South Winchester when he arrived. He saw a lot of beer cans, little packages of dope and whiskey in the house. He did not have a gun or a holster with him when he arrived. He talked to Lori about how her family misspent the life insurance money they received when her mother died. They began to argue, and Lori told him to mind his own business. She picked up a typewriter that was in the dining room and took it into the kitchen.

Small also told the defendant to mind his own business, and then Small threw a beer can at the defendant. The defendant tried to dodge the beer can, and he fell onto some boxes. Then Small went into the bedroom and came out with a gun and a holster. Small was in “a raging state” from dope, and he walked toward the defendant, saying, “Get out of here.” The defendant grabbed Small’s arm, and the two men tussled. The gun and holster fell to the floor. The defendant picked up the gun, and Small tried to get it back from the defendant. Then Small went out the front door. The defendant picked up the holster and put the gun and holster in his pants.

A few minutes later, he heard someone coming up the stairs. He headed toward the back door, because he thought it was Small coming back to start “problems.” He was not aware that Lori had called the police. He went out the back door and started running, because he heard a lot of people and he thought it might be some of Small’s friends. No shots were fired at him in the backyard. He first heard shooting behind him when he got to the vacant lot. He dropped the gun and the holster in the vacant lot. He did not fall in the vacant lot. He then continued running, and ended up in a basement. He was down there for about a minute when he heard a lot of people coming around. He was then arrested by the police.

He testified that he never fired the gun. He never spoke with an assistant State’s Attorney at the police station. He told a detective that he owned a BB gun, but he did not tell an assistant State’s Attorney that the holster was for his BB gun.

The defendant hinges his argument that he was not proved guilty beyond a reasonable doubt on the following: (1) Lori Clark testified that she heard only three shots and that Daly fired three shots; therefore, the defendant could not have fired a shot. (2) Armata was unable to corroborate Daly’s testimony that the defendant fired at him. (3) No prints were found on the gun.

We judge that none of the aspects of the evidence emphasized by the defendant is of such significance that we must say, as a matter of law, that all the other evidence should not be considered. White testified he heard four gunshots. Armata said that he heard approximately four or five rapid gunshots. A fact finder could reasonably conclude that Lori Clark was mistaken on the number of shots. Considering the frightening nature of the events in which she suddenly had become a participant, any inability on her part to discern the difference between three gunshots and four is understandable.

Armata testified that he followed White going from the front door to the back door and heard shots as he approached the back door. He said there were approximately four or five shots. He saw a muzzle flash from Daly’s gun at the time he heard the last shot. At the time he saw the flash from Daly’s gun, he saw the defendant standing in the backyard approximately 20 feet away from Daly. At the time Armata saw the defendant, he was turning and running through the gangway toward the alley. Under no circumstances could it be considered that Armata’s testimony militated against the testimony of Daly. He did not see the defendant fire a shot, because he was not in a position to see it. The defendant’s argument ignores the corroborating testimony of White that he saw a muzzle flash at the end of the defendant’s extended arm and heard a gunshot.

We fail to see the significance of the absence of fingerprints on the question of whether the defendant fired the gun. The absence of fingerprints would be probative on the question of whether the gun was ever in the defendant’s hand, but his own testimony established that it was in his hand.

Finally, we observe that the defendant makes no attempt to explain the strongly corroborative evidence of the expended cartridge in the gun he admitted having. We judge, therefore, that a fact finder could reasonably conclude that the evidence established the defendant’s guilt beyond a reasonable doubt.

The defendant next maintains that the State suppressed information in violation of Supreme Court Rule 412 (107 Ill. 2d R. 412) and deprived him of a fair trial. Before trial the defendant requested the results of the gunshot-residue test that had been given to him by the police. In its written answer to the request, filed on April 22, 1987, the State said that the results of all tests would be made available to the defendant when the State received them. On July 21, 1987, the assistant State’s Attorney informed the judge and the defense attorney that he had been informed by the crime detection laboratory that the machine used for the gunshot-residue test was not operating. The defendant’s attorney told the court that the results of the test were “all we are waiting for.”

At a hearing on September 10, the assistant State’s Attorney said that the Chicago police department did not anticipate getting any replacement for the machine for several months. He said that if the defendant cared to hire someone to do it, “that’s one thing,” but that the police department was not going to do it. The defendant’s attorney said that the test results were “absolutely critical” to the defense. The court pointed out that the State was not declining the defendant’s request to have the test conducted by whomever the defendant selected.

On October 9 the following occurred:

“THE COURT: Is discovery completed, gentlemen?
STATE’S ATTORNEY: Yes, except for one matter. There was a gunshot-residue test taken on the defendant. I called the crime lab this morning, they still have no instrumentalities. They know of none they recommend in the Chicago area that can perform this type of test.
THE COURT: When do they expect to have it?
STATE’S ATTORNEY: I checked into that. They don’t have any expected date, although, as I’ve said, they requested it and they’re just not getting cooperation from their budget department or the city budget department, whatever it may be, and they can give me no date on when it will be ready.
DEFENSE ATTORNEY: We would answer ready, judge. There’s no way we can really wait any longer.
THE COURT: Do you wish to make a test or have your own expert make a test?
DEFENSE ATTORNEY: Between now and November, the date we’re going to ask for, I’ll confer and get the availability. There’s supposed to be one at IIT which may be available.
THE COURT: I would note one of those tests, the old type, is not admissible into evidence.
DEFENSE ATTORNEY: Right.
STATE’S ATTORNEY: There’s some question of the IIT one. I’m aware of that facility.”

No gunshot-residue tests were performed by any facility. In spite of that, the defendant’s attorney told the jury in his opening statement that a gunshot-residue test was performed by Chicago police department evidence technicians and that the “results are negative.” No objection was made to that statement, and the State never referred to it later.

The defendant’s attorney’s closing argument may be summarized as an attack on the police officers’ credibility and the procedures followed by the police. He emphasized that it was the prosecution’s burden, not his, to produce evidence. He pointed out the absence of fingerprint evidence and of gunshot residue in the gun cylinder. He branded the testimony that there was residue in the barrel as “nonsense” and an “insult.” He deprecated the testimony that the residue-testing machine was broken.

On January 27, 1988, the defendant’s attorney filed a post-trial motion in which he alleged that during the trial he was unable to obtain the “necessary expert to conduct the examination since the Federal Bureau of Investigation was not able to process said evidence”; subsequent to the trial he was advised by members of the Chicago police department crime laboratory that, although the tests might not be conducted at its facilities, the State or the “detectives may and often request that the tests be conducted by Dr. Kaistha, Illinois Institute of Technology, *** for a reasonable fee.” He concluded that the information should have been available to the State before trial and the knowledge of the test performance was peculiarly within their knowledge and not the defendant’s and that the failure to conduct the test resulted in the “suppression of evidence that may have been favorable to the defendant.”

On February 11, 1988, at a hearing on the post-trial motion the defendant’s attorney indicated that he learned the name of Dr. Kaistha from a conversation he had with a sergeant at the Chicago Police Crime Detection Laboratory. At a later hearing he identified that sergeant as someone who wore a pink shirt and whose name he did not know. The judge ordered that the gunshot-residue swabs taken from the defendant be submitted to Dr. Kaistha.

Dr. Kaistha submitted a report in which he stated that he had analyzed four hand swabs identified as having been taken from the defendant. The results were as follows:

“[L]ead, barium and antimony levels fall within normal handblank limits. However, this does not preclude the possibility that the subject could have discharged/handled a firearm or been in close proximity of a firearm when it was discharged.”

Lead, barium and antimony were identified as components of most gunshot-residue mixtures.

At the final hearing at which the judge denied the post-trial motion, the defendant’s attorney conceded that before trial he had made a “reference to an independent examiner at IIT, who had access to the equipment that was necessary for this testing process.” He said that it was his decision to proceed to trial without the results of any tests and described his decision as “tactical” and “strategic.” He also said the following:

“[B]ut so long as there’s no misunderstanding, the decision made for Alfred Brooks was a conscious decision to try this case to this jury on a conspiracy theory of the Chicago Police Department, adopting all of the matters which would be in my opinion consistent with that theory, and of primary import was the existence of the evidence in the Police Department Crime Lab. That is to say, Mr. Brooks' swabbings from the evidence technician and their consistent or their pattern behavior, that is to say the Police Department pattern behavior of not filing reasonable grounds to test the results of those swabs to see whether or not there was residue of gunshot.”

It was his position that the defendant should not be penalized because of the decision that he, the defense attorney, made.

The defendant argues that the State suppressed evidence that the State or the police used Dr. Kaistha's facility for gunshot-residue testing. We must reject the defendant’s argument for a number of reasons. First, a “tactical” or “strategic” decision made by an attorney is binding on the defendant. (People v. Whitfield (1968), 40 Ill. 2d 308, 239 N.E.2d 850.) The rule should be excepted when the tactical decision may amount to ineffective assistance of counsel, but that is not the case here. We believe the tactical decision made by the defendant’s attorney to be a sound one under the circumstances, as his argument to the jury illustrated. The police testimony provided him with considerable material with which to attack the State’s case. The officer who testified that he detected residue in the barrel never noted that in his police report. Officer Daly testified that he surrendered to the crime laboratory his gun with the three live rounds and the three spent cartridges that were in the gun. He later retrieved the gun, the live shells and spent cartridges, but the inventory sheet of the crime laboratory showed the return of only the gun. The lieutenant in charge of the crime laboratory indicated that a breach of security or a “mistake” might have occurred. The defendant’s attorney emphasized the shortcomings in the police procedures and, as noted, challenged the testimony that the machine was broken. In our judgment, the absence of the equivocal results of Dr. Kaistha’s test militated in favor of the defendant. The report pointedly excluded a finding that the defendant could not have fired a shot. The inference to be drawn from the report is that he could have fired a shot. The report would have refuted the remark made in the opening statement by the defendant’s attorney that the test results were “negative.” Consequently, we judge that the defendant was not prejudiced by the decision to proceed to trial without the tests, and he is bound by that decision.

We also believe that there has been no suppression of any information that “tends to negate the guilt of the defendant,” contrary to Rule 412(c). To begin, there is a complete absence of any “suppression” of information by the State. Moreover, we repeat, the Kaistha report could arguably be considered more harmful to the defendant’s position than its absence. Nor do we find any violation of the State’s duty to “insure that a flow of information” was maintained between the State and the Chicago police department as required by Rule 412(f). The record established that the State and the defendant were aware of the IIT facility before trial.

In People v. Hambrick (1979), 68 Ill. App. 3d 447, 386 N.E.2d 455, the defendant argued that he was prejudiced by the State’s failure to disclose a receipt allegedly signed by him; he claimed that his theory of defense might have been different if the State had disclosed the receipt. The court held that, although the State violated Supreme Court Rule 412, the defendant was not prejudiced, because he knew of the existence of the receipt before trial, and he answered ready for trial before he received the State’s answer to discovery. The facts of this case are even stronger than Ha/mbrick, because there was no violation of Supreme Court Rule 412. The defendant knew of the existence of the IIT facility, and he made a conscious decision to go to trial without submitting the material to testing. For these reasons, we find no violation of Supreme Court Rule 412 or the requirements of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.

The defendant next argues that the cumulative effect of improper investigative procedures combined to deny him due process. The defendant maintains that the State made errors by losing track of the spent cartridge casings from Daly’s gun; by failure to properly preserve fingerprint evidence; and by allegedly contaminating the gun found in the vacant lot by dusting it before “documenting” the gunshot residue of the gun. We disagree. The three spent cartridges from Daly’s gun were returned to Daly after the gun was examined by the evidence and recovery property section of the crime laboratory. He then stored the spent cartridges in his jewelry box in his home until he was asked to produce them for trial. When he found the gun in the vacant lot, Daly picked it up by holding the wooden hand-grips. He testified that he picked it up in that manner because he did not want to ruin any fingerprints on the metal surface of the gun. We repeat the observation that, since the defendant testified that he held the gun, we see no significance in the absence of fingerprints.

Officer Ferrari testified that he saw residue in the barrel and that dusting the gun for fingerprints would preclude any further examination to determine whether there was gunshot residue in the barrel or the cylinder of a gun. However, he further testified that there was no reason to check the gun for residue, because that would not indicate when the gun was fired. He knew of no test that could be performed on a gun that would indicate when the gun had been fired.

Failure to preserve potentially useful evidence does not amount to a constitutional violation of due process absent a showing of bad faith. (Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333.) Nothing in the record indicates that the police department evidence technicians acted in bad faith. The case cited by the defendant, Ex parte Brandley (Tex. Crim. App. 1989), 781 S.W.2d 886, is not in point. In Brandley, the State refused to perform scientific tests; the State’s case was entirely circumstantial. Brandley expressly noted that “State misconduct is more likely to affect the outcome of [a] trial based upon circumstantial evidence than one in which there is direct evidence, untainted by State misconduct, linking a defendant to the crime.” (781 S.W.2d at 892.) In this case, the defendant’s conviction was based on the direct evidence of at least two eyewitnesses.

The defendant’s last argument is that the prosecutor made inflammatory and prejudicial remarks during closing argument that deprived him of a fair trial.

We note first that an objection was made to only two of the remarks, and we will address them first. Although we believe the defendant has waived any objection to the other remarks, we will address them also.

The prosecutor said the following about the police officers:

“[Tjhank God they go there. Thank God they had the courage to go to the job so we don’t have to. They have their lives on the line. They go into a house where they know a guy’s got a gun *** These are brave officers doing their job. You know an officer was just killed two weeks ago.”

An objection was immediately sustained. The judge told the jury that there was no evidence in the record about an officer being killed and instructed them to disregard the remark. That comment about another officer being killed was clearly improper; however, the judge’s ruling and instruction to the jury operated to cure any error. (People v. Cox (1979), 71 Ill. App. 3d 850, 389 N.E.2d 1238.) That single, isolated remark does not mandate reversal absent a clear showing of substantial prejudice. (People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029.) There has been no clear showing of substantial prejudice.

With respect to the other part of the prosecutor’s remark concerning the courage and duties of the police officers, we find no error. Unlike the case cited by the defendant, People v. Threadgill (1988), 166 Ill. App. 3d 643, 520 N.E.2d 86, the remarks in this case were an invited response to the argument of the defendant’s attorney, who told the jury that the police officers were “liars”; as he later admitted, he was attempting to convince the jury that the police officers conspired against the defendant. In addition, the defendant’s attorney told the jury that they might be “earmarked as [they drove] down the street” and “some cop might know that [they] were on the jury.” An objection by the State was sustained, but the inflammatory nature of the remark is evident. Under the circumstances, we find no prejudice in the prosecutor’s remark concerning the courage and duties of the Chicago police officers.

The other argument to which an. objection was made occurred during the following remarks of the prosecutor:

“Ladies and gentlemen, then [the defendant] said that he heard some noises on the front porch, and he said he thought Steve and these gang members, he just threw them in there. Why did he throw that in there? To muddy up Steven Small. If we could have had those witnesses here, we would have.”

The court sustained the defendant’s objection.

The State maintains that the remarks were invited by the argument in which the defendant’s attorney said this:

“Would you state your name? Is it Mr. Clark; Michael Clark? Michael, where [sic] you present in the house that day, Michael? Michael, I can’t hear you.
Steven Small. State your name please. Tyrone. Is it Tyrone Clark? What did you see that day? Lori Clark says you were there. Frank Chandler. Where are theyl
Oh, says the State, we have been looking for them. Have you heard one piece of evidence?” (Emphasis added.)

It is clear that the defendant’s attorney was inviting a response by the prosecutor to explain why those witnesses were not called. That being so, the only question before us is whether the record justified the prosecutor’s explanation of their absence. We have not combed the record, but we believe that the defendant’s attorney’s own statement lends support to the State’s explanation; it is apparently somewhere in the record that the State attempted to find the witnesses. Considering the relationship between those witnesses and the defendant, it is a fair inference that they were reluctant to testify. In any event, that remark, to which an objection was sustained, does not rise to the level of reversible error.

The defendant claims error in the following remarks of the prosecutor:

“He [the defendant] knew the police were following him. That’s why he threw the gun. A criminal — you got to understand how a criminal mind works. He gets rid of the evidence. He gets rid of the evidence.”

A prosecutor may reflect upon a defendant unfavorably and comment on his actions, provided there is competent and pertinent evidence in the record. (People v. Miller (1958), 13 Ill. 2d 84, 148 N.E.2d 455.) The evidence supported the remark. The testimony of Daly and White established that the defendant was a “criminal,” that is, he had committed a crime. We do not interpret the prosecutor’s remark to be, as the defendant argues, an assertion that the defendant had committed other crimes.

The defendant claims that error occurred when the prosecutor told the jury that the defendant had lied and that Daly had told the truth. We find no error in those statements. The issue should not be clouded by undue reliance on cases involving a prosecutor’s expression of his personal opinion about the credibility of the witnesses. This is not such a case. (Cf. People v. Smith (1977), 52 Ill. App. 3d 583, 367 N.E.2d 756 (prosecutor’s remark that he believed defendant and his witness lied under oath was improper but not prejudicial error); but see People v. Tiller (1982), 94 Ill. 2d 303, 319, 447 N.E.2d 174, 182, in which the supreme court said, “A prosecutor may state his opinion that a defendant is lying if the statement is based on the evidence.” (Emphasis added.)) The defendant’s testimony was contrary to the testimony of the three officers, his cousin, Lori Clark, and the assistant State’s Attorney. Therefore, we conclude that the prosecutor’s statement was based on the evidence. (See People v. Sawczenko (1989), 180 Ill. App. 3d 406, 535 N.E.2d 1105; People v. Cukojevic (1981), 103 Ill. App. 3d 711, 431 N.E.2d 1154.) On that basis, we distinguish the case cited by the defendant, People v. Strange (1984), 125 Ill. App. 3d 43, 465 N.E.2d 616, in which the court held it was reversible error to call the defendant a “liar” in argument, because the defendant’s testimony was not inconsistent with that of any other witness.

In like vein, we see no error in a prosecutor arguing to a jury that a witness told the truth. That conclusion is even more compelled when the statement is in response to a defense argument. (See People v. Wilson (1984), 123 Ill. App. 3d 798, 463 N.E.2d 890.) The defendant’s attorney told the jury that the police officers were “liars.”

In sum, we conclude that no prejudicial error occurred during the State’s closing argument.

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

Judgment affirmed.

RAKOWSKI, RJ., and McNAMARA, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re JASON U. et al., Minors (The People of the State of Illinois, Plaintiff-Appellee, v. Ronald McIntosh, Defendant-Appellant).
    First District (6th Division)
    No. 1—89—1243
    Opinion filed May 17, 1991.

      George A. Domas, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Susan S. Wigoda, and Gael O’Brien, Assistant State’s Attorneys, of counsel), for the People.
    Patrick T. Murphy, Public Guardian, of Chicago (Michael G. Dsida, of counsel), guardian ad litem.

   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Ronald McIntosh, appeals from the order terminating his parental rights and appointing a guardian for.his two sons, Jason and Michael, with the right to consent to their adoption. (Jason and Michael do not have the defendant’s surname.) He contends that the judge misapplied the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m)) and that part of the order was against the manifest weight of the evidence.

On June 25, 1985, the Illinois Department of Children and Family Services (DCFS) took protective custody of 18-month-old Jason and his six-month-old brother, Michael. DCFS removed Jason and Michael and their three older half-sisters from the home of their mother, Mary Jane, and the defendant, after their half-sister Jennifer told the police that she had been sexually abused by her mother’s “live-in boyfriend” and after their mother was arrested and charged with disorderly conduct and intoxication while in a car with her five children. The “live-in boyfriend” was not identified any further. Russell Jones, Mary Jane’s former husband, is the father of the three girls.

Shortly after obtaining custody of the children, DCFS placed Jason and Michael in a foster home where they remained for the next four years, while the juvenile court proceeded with the disposition of their cases.

On April 22, 1986, the court held that Jason and Michael had been neglected and abused. On July 30, 1986, the court adjudicated Jason and Michael wards of the court and placed them under DCFS guardianship. On May 27, 1988, DCFS filed supplemental petitions seeking the termination of parental rights and the appointment of a guardian with the right to consent to Jason’s and Michael’s adoption.

Mary Jane had been involved in service plans with DCFS since 1982. She had also been receiving counseling from De Paul Mental Health Center and Children’s Home and Aid Society since 1984. She and the defendant were never married. They lived together with the five children at 2813 Leavitt in Chicago for approximately one year. During this time the defendant actively assisted in the care of the children, and he treated all five children as if they were his own. The defendant and Mary Jane ceased living together in July or August of 1985, one or two months after they lost custody of the children. The defendant then moved in with a friend at 643 North Melrose.

Before the children were placed in foster homes, four of them were temporarily placed with Mary Jane’s sister. The youngest child, Michael, was temporarily placed elsewhere. The defendant regularly visited the four children at Mary Jane’s sister’s home for approximately one month before they were placed in foster homes. Subsequently, the defendant did not see his sons again until January of 1988, after they had been in placement for years. Mignon Pruitt, a DCFS case worker, testified that, to her knowledge, the defendant did not telephone the children or send them any cards or letters during this 21/2-year period.

The defendant was aware of the court proceedings involving the children. He testified that he discussed the matter with Mary Jane, and they decided that Mary Jane would be able to regain custody of the children sooner if the defendant would “stay out of the picture.” He continued to see Mary Jane on a regular basis after the children were removed, and she informed him about her visits with the children and how they were doing, as well as the progress of the court cases. He frequently provided either transportation or bus fare to Mary Jane so that she could visit the children at local Children’s Home and Aid Society offices. He also provided Mary Jane with money and “little things” to take to the children.

He continued to see Mary Jane throughout 1986 and into 1987, and she continued to provide him with information regarding the return of the children to her. Before May of 1987, the issue of returning the children to Mary Jane was directly related to her finding suitable housing. She received an eviction notice in the fall of 1986, and she did not know when she would be able to find a new place to live.

Pruitt testified that she had not tried to contact the defendant during the course of Mary Jane’s first six-month service plan. After the children were removed from the home, Mary Jane told DCFS that she did not know where Russell Jones or the defendant could be found. Pruitt said that the defendant called her sometime between January and July of 1986 and expressed interest in seeing his sons. She set up an appointment for the defendant to visit the children, but he later called and cancelled the appointment. The defendant denied making any calls to Pruitt between January of 1986 and June of 1987.

In May of 1987, Mary Jane left the State of Illinois and went to Georgia. She did not tell any of the agencies involved that she was leaving. Sometime after her arrival in Georgia, she remarried, and during the course of the termination hearing, she used her new married name.

In January of 1988, the defendant telephoned the DCFS to schedule a meeting with Pruitt, who had been involved with the children since March of 1986. The defendant met with Pruitt and indicated that he wished to obtain custody of his two sons. He explained to Pruitt his reasons for not contacting her earlier.

Pruitt set up a three-month service plan for the defendant which included an “alcohol assessment,” parenting classes, Alcoholics Anonymous meetings, and weekly visits with his sons. The goal of the plan was to return the two children to the custody of the defendant. He complied with the visitation aspect of his service plan. The defendant made his weekly visits, and although he was very guarded in the way he structured and managed the boys, he was “appropriate” with his sons during the course of those visits. The defendant went for his alcohol assessment, but he failed to attend Alcoholics Anonymous meetings as required by his service plan. Pruitt provided him with the names of three parenting skills programs, but the defendant was unwilling to attend any parenting classes. Pruitt explained that the classes were deemed important because of the length of time during which the defendant had been absent from the boys’ lives. The defendant testified that the classes interfered with his job, and he felt that he could establish a relationship with his sons on his own.

Pruitt visited the defendant’s home at some time during the service plan, and she found it unsuitable for both him and his two sons. She explained that he was sharing an apartment with two other adults, and his room was not large enough for him and the two children. Pruitt indicated that she had assumed that all of the rooms in the apartment were occupied, because they all contained furniture.

Because the defendant was unable to sufficiently comply with the service plan, Pruitt indicated that she could not grant him unsupervised visits with his sons. She set up a second service plan, and she advised him that because the case had been in care for a number of years, the case was going to adoption screening. She explained to the defendant that he was only allowed a three-month plan, rather than a six-month plan, because the case had already been pending for so long, and she told him that he needed to cooperate with the service plan as quickly as possible. The defendant again failed to attend alcohol counseling and parenting classes as required by his second service plan. He testified that Pruitt did not tell him that, if he did not succeed in the service plan, she was going to have his sons permanently taken from his custody.

The judge made a general finding of unfitness on the part of the defendant. The judge specifically found that the defendant had failed to make reasonable efforts to correct the conditions which were the basis for the removal of the children from their home, failed to make reasonable progress toward the return of the children, and failed to maintain a reasonable degree of interest, concern or responsibility for the children’s welfare. The judge then terminated the defendant’s parental rights and appointed the DCFS guardianship administrator of Jason and Michael with the right to consent to their adoption.

The Illinois Supreme Court has recognized that parental rights are of deep human importance and must not be lightly terminated, and that a finding of parental fitness must be supported by clear and convincing evidence. (In re Paul (1984), 101 Ill. 2d 345, 351-52, 461 N.E.2d 983.) However, a court may terminate parental rights and appoint a guardian with the power to consent to adoption if the court finds, based on clear and convincing evidence, that the parent is unfit. The decision to terminate parental rights and appoint a guardian rests within the sound discretion of the trial judge, and a reviewing court should not interfere with the trial judge’s decision absent an abuse of discretion. In re Allen (1988), 172 Ill. App. 3d 950, 527 N.E.2d 647.

The applicable statute (Ill. Rev. Stat. 1987, ch. 40, pars. 1501(D)(b), (m)) provides as follows:

“ ‘Unfit person’ means any person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption, the grounds of such unfitness being any one or more of the following:
* * *
(b) failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare;
* * *
(m) failure by a parent to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such parent within 12 months after an adjudication of neglected minor under *** the Juvenile Court Act.”

The defendant first argues that the trial judge erred in applying the “reasonable efforts” language of section 1(D)(m) of the Adoption Act in determining whether his parental rights should be terminated. (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m).) The defendant emphasizes that he did not have custody of the children at any time subsequent to the removal of the children from their home. He asserts that, according to In re Loitra (1979), 81 Ill. App. 3d 962, 401 N.E.2d 971, the “reasonable efforts” language of section 1(D)(m) does not apply to a noncustodial parent.

In Loitra the mother lost custody of her son because he had been abused. The trial court found the mother unfit under section 1(D)(m) of the Adoption Act for failing to make reasonable efforts to correct the conditions which were the basis for the removal of the child. (81 Ill. App. 3d at 964.) The appellate court reversed, noting that the “reasonable efforts” language of section 1(D)(m) did not apply in that case, because whether the mother adequately protected the child from abuse could not be determined if she did not have custody of the child. (81 Ill. App. 3d at 965.) The court did not hold, as the defendant contends, that the “reasonable efforts” language can never be applied to a noncustodial parent. Loitra, therefore, is limited to its facts.

Moreover, eight years after Loitra, the Fourth District Illinois Appellate Court expressly held that section 1(D)(m) applies to noncustodial parents. (In re J.R.Y. (1987), 157 Ill. App. 3d 396, 510 N.E.2d 541.) The court stated as follows:

“We find no cases specifically applying section 1(D)(m) of the Adoption Act to a noncustodial parent, but this absence of authority does not prohibit the use of common sense in giving this subsection a broad interpretation. A noncustodial parent, who has been made part of a neglect proceeding resulting in an order placing custody with a State agency, should not be free from the requirement of taking the responsibility for correcting the neglect conditions. To say that the custodial parent’s rights could be terminated for failure to make reasonable efforts to correct the conditions, or to make reasonable progress toward the return of the child, while the noncustodial parent could avoid termination simply because he does not have, nor has ever had, custody escapes logic. Such a holding could result in a child being faced with foster care until majority, and being deprived of the chance for the benefits of an adoptive home. In a case such as this one, such a result is clearly against the best interests of the minor. If there has been any doubt in the past, we now hold the parental rights of a noncustodial parent can be terminated under the provisions of section l(D)(m) of the Adoption Act [citation]. *** [The parent] is required to step in during a guardianship administered by the Department of Children and Family Services and correct conditions of neglect and make reasonable efforts to help the minor return to the custody of one of the natural parents. A noncustodial parent is charged with as much responsibility as a custodial parent for the support, protection, and care of a child. [Citations.] ‘When a father loses custody of his children ***, he does not also lose all parental obligations.’ [Citation.]” (Emphasis added.) 157 Ill. App. 3d at 399.

In this case, as in J.R.Y., the dispositional order was effective as to both the mother and father of the children. The defendant, therefore, was required by section 1(D)(m) of the Adoption Act to make reasonable efforts to correct the conditions which led to the removal of the children from their home.

We note that the defendant does not argue that the judge’s finding that he did not make reasonable efforts to correct the conditions which were the basis for the children’s removal was against the manifest weight of the evidence. Lest there be any doubt in the matter, we hold that the finding was supported by the evidence.

The defendant, however, does maintain that the judge’s finding that he failed to maintain a reasonable degree of interest, concern or responsibility for his sons was against the manifest weight of the evidence.

The defendant had no contact with either of his sons for approximately 21/2 years after they were removed from their home. The defendant testified that during that time he regularly provided transportation for Mary Jane so that she could visit the children. The trial judge, however, said that he was disturbed by the defendant’s failure to go in and visit his sons on any of the occasions when he drove Mary Jane. The trial judge stated:

“I also listened to the testimony of [the defendant] very closely. And I reviewed that testimony in my chambers. It disturbs me that during all of the numerous times that he testified to having taken [Mary Jane] to the agency’s office to visit with the children that not one time did he go inside to see those children, his sons. That disturbs me. It doesn’t make sense to me.”

The defendant emphasizes his regular visits with his sons during the course of his service plans, beginning in January 1988. However, it is the defendant’s conduct during the entire post-adjudication period that is relevant, not merely his conduct during his service plan. (In re R.S. (1988), 174 Ill. App. 3d 132, 528 N.E.2d 25.) Examination of the defendant’s conduct during the entire post-adjudication period reveals that he failed to contact his sons in any way for approximately 2Vz years. It has been held that failure to visit a child is not proof of unfitness if the parent offers a reasonable explanation. (In re Martin (1977), 48 Ill. App. 3d 341, 363 N.E.2d 29.) However, the defendant’s explanation for his failure to visit Jason and Michael was that he thought it would help Mary Jane to regain custody of the children sooner if he stayed out of the picture. Contrary to the defendant’s argument, the judge was not bound, as a matter of law, to accept that explanation as a legally sufficient reason for the defendant’s failure to visit his sons. Moreover, that explanation does not excuse his failure to visit his children or to contact them by phone, letter or any other means for 21/2 years.

The defendant argues that, according to In re Taylor (1975), 30 Ill. App. 3d 906, 334 N.E.2d 194, it is his efforts to contact his children, rather than his success, that should be considered by this court. However, Taylor involved wrongful interference by a DCFS worker who prevented the parent from visiting the child. Similarly, interference by other third parties has been held to be a reasonable excuse for failure to visit a child. (Davis v. Bughdadi (1983), 120 Ill. App. 3d 236, 458 N.E.2d 177 (custodial parent hindered visitation rights of noncustodial parent); Bryant v. Lenza (1980), 90 Ill. App. 3d 275, 412 N.E.2d 1154 (foster parents prevented incarcerated father from contacting his children).) The defendant does not allege any wrongful conduct by a third party which prevented him from contacting his sons. Moreover, the record does not indicate that the defendant made any efforts to contact the children. Rather, the defendant admitted that he willfully decided not to contact them. We judge that the finding that the defendant failed to maintain a reasonable degree of interest, concern or responsibility for his sons is not against the manifest weight of the evidence.

Last, the defendant maintains that Pruitt “actively engaged in an insideous [sic] form of deception upon Mr. McIntosh in engineering his alleged failure.” The defendant states that Pruitt never informed him that if he did not comply with the service plan, his parental rights would be terminated. (See In re Drescher (1980), 91 Ill. App. 3d 658, 415 N.E.2d 636; In re Bales (1980), 83 Ill. App. 3d 348, 403 N.E.2d 1344; In re Barber (1977), 55 Ill. App. 3d 587, 371 N.E.2d 299.) The remarks of the defendant directed toward Pruitt are unfortunate and unjustified. Even assuming that Pruitt’s failure to tell the defendant of the possibility of termination of his parental rights might excuse his failure to attend Alcoholics Anonymous meetings or parenting classes, they do not excuse his failure to maintain a reasonable degree of interest, concern or responsibility during the 2V2 years following the removal of the children from the home.

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

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.