text:
    VICTOR M. WINSTON, a Minor by his Mother and Next Friend, Fannie Magee, Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee.
    First District (1st Division)
    1—88—0524
    Opinion filed April 10, 1989.

      Donald Hubert & Associates, of Chicago (Donald Hubert and Philip J. Fowler, of counsel), for appellant.
    Heineke, Burke, Healy & Bodach, of Chicago (L. Barrett Bodach and Mary Beth O’Brien, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Victor M, Winston, appeals from the finding of a directed verdict in favor of defendant, the Board of Education of the City of Chicago, in a personal injury action.

The minor plaintiff, age five, by his mother and next friend, Fannie Magee, filed an action on February 24, 1976, against the defendant Board of Education to recover damages for severe and permanent injuries he sustained when he was hit by a car shortly after noon on March 8, 1974, in an intersection adjacent to the Anthony Overton public school in Chicago, where he was a kindergartener. In his three-count complaint, the plaintiff also sued the police department of the City of Chicago and the automobile driver, Lonnie Davis. The complaint alleged that the plaintiff, a pedestrian, was near the intersection of 50th and Indiana Avenue in Chicago when he was struck by the defendant driver, and a negligence cause of action was alleged against Davis. A negligent failure to safely guard the intersection was also alleged against the police department of the City of Chicago. On August 10, 1976, the trial court granted the motion of the defendant Board of Education to dismiss plaintiff’s complaint for failure to state a cause of action, but ordered that the case would continue against the remaining defendants, the City of Chicago and Lonnie Davis. On August 16, 1985, a settlement order was entered which provided that the City of Chicago would pay plaintiff $2,500. On January 30, 1986, a default judgment was proved up against the defendant, Lonnie Davis, in the amount of $875,000.

On November 6, 1985, approximately nine years after the filing of the original complaint, the plaintiff filed a second amended complaint against the Board of Education. On April 17, 1986, the trial court denied the Board of Education’s motion to dismiss plaintiff’s second amended complaint. The second amended complaint alleged that the defendant Board of Education knew that the school rule to cross at the intersection of 49th and Indiana Avenue went unheeded by students; that the defendant knew that Indiana Avenue, due to its width, volume and speed of traffic would be highly dangerous for a five-year-old to cross without assistance, that the defendant knew that other children had, in fact, been struck by motor vehicles when going to and from the Anthony Overton School; that the defendant engaged in wilful and wanton behavior by discharging the five-year-old plaintiff, knowing his trip home would be unsupervised and he would cross the highly traveled Indiana Avenue; that the defendant failed to require of parents or guardians that all pupils of the age and experience of plaintiff be accompanied home by a person of sufficient age and experience; and, finally, that the defendant failed to station patrols or teachers on school grounds in order to direct pupils away from crossing Indiana Avenue other than at the guarded intersection.

The case proceeded to trial from October 21, 1987, through October 28, 1987, at which time the plaintiff rested his case. Subsequently, the trial court granted defendant’s motion for a directed verdict and plaintiff now appeals.

Plaintiff contends on appeal that the Board of Education owes a duty of protection and supervision to a five-year-old kindergarten child on school premises even where that child is injured in a street intersection adjacent to the school and not on school property. Plaintiff maintains this is especially applicable to this case since the school policy required that the school would retain control of kindergarteners until a parent arrived to pick them up or parental permission is given to allow the child to go home alone.

In Booker v. Chicago Board of Education (1979), 75 Ill. App. 3d 381, 394 N.E.2d 452, the plaintiff student complained that several of her classmates had threatened her with physical harm unless she made payments of money to them. The plaintiff had advised the teacher of the threats. Thereafter, the teacher accompanied her class to the bathroom. The teacher remained in the hallway adjacent to the bathroom while the student entered it. While the plaintiff was inside the bathroom, she was physically assaulted by a group of her classmates. The plaintiff brought an action against the Board of Education to recover for her injuries. This court held that plaintiff’s complaint did not state a cause of action since the Board of Education had not engaged in wilful and wanton misconduct. The court reiterated the well-recognized principle and definition of wilful and wanton misconduct as set out in Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 69 N.E.2d 293:

“A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.” (394 Ill. at 583, 69 N.E.2d at 300.)

In Booker, the court concluded that since there were no allegations that the teacher had knowledge of an impending danger to the plaintiff if she entered the bathroom unaccompanied by a teacher, the cause of action must fail. The court further stated that in order to state a cause of action for wilful and wanton misconduct, the plaintiff must allege facts which give rise to a duty in the law on the part of the defendant and that the intentional breach of that duty resulted in plaintiff’s injury. The mere conclusion of wilful and wanton misconduct is insufficient.

In the case at bar, the plaintiff was permitted to file a second amended complaint approximately nine years following the filing of his original complaint. In making a ruling directing a verdict in favor of the defendant, the trial judge stated, in part, that he permitted the case to go to the jury because of allegations in the complaint that it was well known that other children had been struck by motor vehicles crossing Indiana Avenue upon coming or leaving the Overton School. At trial, however, plaintiff failed to provide any evidence to support this allegation. We have reviewed the record in this matter and are in agreement with the trial court’s finding that the evidence was lacking to support a charge of wilful and wanton misconduct and find no error in the granting of a directed verdict for defendant. Collins v. Hyster Co. (1988), 174 Ill. App. 3d 972, 529 N.E.2d 303.

At trial, Victor Winston’s mother, Fannie Magee, testified that she would walk her son to and from school, or would allow his cousin, Anthony Quinn, to do so. On the date of the incident, March 8, 1974, Anthony Quinn brought Victor Winston to school and agreed with his mother to pick him up after school. Since Anthony Quinn is now deceased, there was no evidence presented as to whether, in fact, he did pick up the child. No witnesses testified as to the actual occurrence and no evidence was admitted as to the factual circumstances of the impact between the automobile involved and the child. Under these circumstances, plaintiff has failed to establish a prima facie case of wilful and wanton misconduct. Booker, 75 Ill. App. 3d 381, 394 N.E.2d 452.

Plaintiff cites the case of Ballard v. Polly (D.D.C. 1975), 387 F. Supp. 895, a case decided outside of this jurisdiction, in support of its position. In Ballard, a five-year-old kindergarten child was struck by a motor vehicle after wandering off a public school playground through a gap in a fence. The accident occurred while the children were participating in an afternoon recess in a playground area and the children were under the supervision of teachers. The gap in the fence through which plaintiff exited the playground had been present for several months before the occurrence. The principal of the school considered the street dangerous enough to conclude that a crossing guard should have been placed at the intersection where the accident occurred. The court held that it was foreseeable that the children could wander into the street and be struck by vehicles and, therefore, the school had a duty to protect them against this hazard. In reaching its decision, the court was careful to caution that a school is not an absolute insurer of the safety of a pupil and that each case must be decided on its own facts.

In our judgment, Ballard is readily distinguishable from the case before us. In Ballard, the plaintiff child was participating in playground activities under the supervision of school authorities unlike the instant case, where plaintiff had been dismissed from school at the time of the incident. Further, the Ballard court clearly relied on the fact that the school authorities knew of the hazard and the length of time that the hole in the fence had been present. Likewise, the trial judge here similarly based his decision on the facts as to whether defendant had prior knowledge that a hazard was present and concluded that it did not. Contrary to plaintiff’s allegations, no evidence was presented to support his contention that prior accidents had occurred involving children being struck by motor vehicles when crossing Indiana Avenue when coming to or leaving the Anthony Overton School. Nor was any evidence admitted that Indiana Avenue was highly dangerous compared with other streets. Under the facts of this case, we do not find that any duty was owed by the Board of Education to this plaintiff, who was on his way home from school.

We recognize that the right to have a substantial factual dispute resolved by a jury is constitutional and should be carefully preserved by judges. (Chladek v. Albon (1987), 161 Ill. App. 3d 884, 515 N.E.2d 191.) A verdict, however, may be directed in favor of a moving party when all the evidence, viewed in a light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict based upon the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) In applying the Pedrick standard to the case at bar, we agree with the trial court’s determination that since no duty was raised by the plaintiff and no prima facie case was established, no triable issue existed for the jury to consider and a directed verdict was warranted.

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

Judgment affirmed.

MANNING, P.J., and QUINLAN, J., concur.

       Justice Quinlan participated in this opinion prior to his assignment to the sixth division.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
      In re MARRIAGE OF MARYANNE MANGAN, Petitioner-Appellant, and GEORGE MANGAN, Respondent-Appellee.
    First District (1st Division)
    No. 1—88—0560
    Opinion filed April 10, 1989.

      Kanter & Mattenson, Ltd., of Chicago (Stuart Gordon and William J. Arendt, of counsel), for appellant.
    Massucci, Blomquist, Brown & Judson, of Arlington Heights (Raymond R. Massucci and Terry J. Finman, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from an order granting custody of the parties’ minor son, George, Jr., to his father, George Mangan, Sr. We affirm.

Petitioner Maryanne Mangan (Maryanne) filed a petition for dissolution of marriage on September 25, 1984. Maryanne was granted temporary custody of the minor child, George Jr., pursuant to an agreed order on November 26, 1984. On January 29, 1987, George Mangan (George) filed a counterpetition for dissolution at which time he asked to be awarded custody of George Jr.

At the time of trial on the custody issue, George Jr. was 5xlz years old and had lived with his mother since birth. Although there was testimony establishing that George Jr. was doing well in a kindergarten program in his Lincoln Park neighborhood and was healthy and well cared for, there was substantial testimony indicating that he suffered from neurotic emotional illness. Testimony introduced by the mother focused on the fact that George Jr. had been diagnosed as having moderate asthma, is chronically ill and should not be separated from his mother because separation could cause anxiety attacks that in turn could cause critical asthma attacks. Dr. Bussell, the psychiatrist appointed by the court from a list tendered by Maryanne, testified that the child suffered from a neurotic disorder and has a great deal of pent-up anger and rage which he characterized as abnormal.

Testimony regarding the severity of George Jr.’s asthma was substantially conflicting. Maryanne testified that the child had to be hospitalized twice during the time she was caring for him. She conceded, however, that only one incident involved an asthma attack. In addition, although Maryanne took George Jr. to the hospital emergency room 20 to 30 times, George testified that he had never needed to do so during all the time he had his son for visitation. Testimony also showed that George Jr. never exhibited symptoms of asthma while in the presence of his own psychiatrist (Dr. Ner Littner), Maryanne’s neighbor, Dr. Bussell, Maryanne’s sister or George’s family and friends.

There was also varying testimony with regard to the cause of George Jr.’s asthma. Dr. Littner, George Jr.’s psychiatrist, who was selected by Maryanne and testified on her behalf, stated that the asthma was triggered by emotional causes. Another of the child’s doctors, Dr. Randall, testified that environmental factors were the primary cause and that the severity would depend upon the time of year. Dr. Randall also testified that George Jr. could lead a relatively normal life so long as he received medication on a timely basis. Dr. Randall expressed the opinion that any reliable caretaker could learn how to manage the boy’s illness and to give the appropriate injections and medications.

There was also testimony from both parents regarding the child’s medication. George testified that Maryanne constantly changed the medications as well as their frequency and dosages. He also testified that the written instructions she gave him were often inconsistent with instructions from George Jr.’s physicians which necessitated contact with the doctors to verify the correct dosages of medication.

Maryanne alleged that George was an alcoholic and an unfit father as a consequence. No medical evidence or expert-testimony, however, was presented in this regard. Of the two incidents involving George being stopped for allegedly driving under the influence of alcohol, one occurred prior to the marriage when he was 19 years old and the other involved a ticket he received for improper lane usage six years prior to the trial. George testified that he did not drink on weekends when he had visitation with his son. He also testified that he has never been convicted of driving under the influence or had his license suspended or revoked. Testimony regarding George’s drinking habits was also presented by George’s friend, Thomas Scanlon. Scanlon’s testimony indicated that George drank beer after softball games but that there were only 10 games each summer and George did not drink after every game. Two other witnesses testifying on George’s behalf testified that they had an occasional drink with George after work. Based on the testimony regarding George’s prior drinking habits, the trial court found him to be an alcoholic but also found that he had rehabilitated himself and that alcohol had not interfered with his parenting skills or the time spent with his child.

A substantial amount of testimony was presented regarding George’s capabilities as a parent, including that of Thomas and Sally Scanlon, George’s sister, Maryanne’s father and Dr. Bussell, all of whom testified that George was a good parent who was very attentive to his son’s medical needs. Dr. Bussell, who as previously stated was chosen to assess the parties under the direction of the court, testified that George would be the better custodial parent.

Testimony on Maryanne’s behalf was presented by Dr. Littner and Dr. Arnold, Maryanne’s psychiatrist of three years, both of whom testified that Maryanne was handling George Jr. appropriately. Dr. Littner testified that although Maryanne did “overshelter” George Jr., oversheltering an asthmatic child was typical. He also testified, however, that he had never seen Maryanne as a patient, had never given her psychological tests and had seen her only once with the child. On cross-examination, Dr. Arnold stated that he had only observed Maryanne and George Jr. during 15-minute breaks between therapy sessions with Maryanne in his office and that he was unable to render an opinion as to who would be a better parent. Maryanne presented additional supportive testimony from an acquaintance who had observed her interaction with the child at a local park and a teacher from his school, who stated that his behavior was appropriate to his age.

Following the presentation of all of the evidence, the trial court found that it was in the best interest of the child that custody be granted to the father. Maryanne Mangan now brings this appeal.

Maryanne’s claim is that the trial court’s decision to award custody of the minor child to the father was against the manifest weight of the evidence. She states that Dr. Bussell’s testimony was that the child’s pent-up anger was “reported to him” by the mother not, as the trial court stated, that the boy “had anger and confusion” due to his interaction with his mother. Further, she contends that the trial court abused its discretion by relying on Dr. Bussell’s report, which she characterizes as inaccurate and incomplete. She contends that although he claimed she exhibited symptoms of “histrionic personality disorder,” he later admitted that she did not have such a disorder. She argues that Dr. Bussell’s opinion that she was infantizing and smothering the child was inaccurate and that it was based on the fact that he did not understand the severity of George Jr.’s asthma. Maryanne also challenges Dr. Bussell’s assertion that her overmothering was manifested in George Jr. missing 90% of his scheduled school days due to being ill. She contends that this was erroneous and that evidence adduced at trial showed that he missed only 8 of 58 possible school days. Maryanne maintains that while evidence shows that she was a careful parent, Dr. Bussell failed to investigate evidence that George was an alcoholic. She focuses on the fact that she has been George Jr.’s primary caretaker since his birth, that she keeps in constant contact with the boy’s teachers and doctors, and that she is available to care for him 24 hours per day, and that as a result, she would be the better custodial parent.

The Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 602) provides that custody determinations are to be made based on the best interest of the child. Section 602 provides that the following factors shall be considered:

“(1) the wishes of the child’s parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;

(4) the child’s adjustment to his home, school and community;

(5) the mental and physical health of all individuals involved; and

(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.

(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.” Ill. Rev. Stat. 1987, ch. 40, par. 602.

It is the task of the trial court to evaluate all of the circumstances and appraise the witnesses’ credibility. It is not necessary to find one parent “unfit” to justify an award to the other parent. Nor do Illinois courts assume that the mother is necessarily the better custodian for young children. (See In re Marriage of Sieck (1979), 78 Ill. App. 3d 204, 396 N.E.2d 1214.) A reviewing court should not overturn the trial court’s determination unless the judgment is against the manifest weight of the evidence or is manifestly unjust. In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 434 N.E.2d 811.

In the pending case, the trial court heard substantial testimony from the parties and their witnesses prior to determining that custody of the minor should be given to the father, George Mangan. After reviewing the record, we find no basis upon which to find that the trial court abused its discretion in granting custody of George Mangan, Jr., to his father.

Contrary to Maryanne’s assertion, the trial court’s decision was not based solely on Dr. Bussell’s testimony that George Jr. had anger and rage due to her parenting. The trial court in written findings discussed Maryanne’s allegations regarding George’s alcoholism and found that George had rehabilitated himself and that his use of alcohol had no detrimental impact on his parenting skills. Furthermore, there was no evidence to support Maryanne’s claim that Dr. Bussell’s report was inaccurate. Although there was a difference of opinion expressed by the experts as to who would be the better custodial parent, and although Dr. Bussell acknowledged using archaic terminology in describing Maryanne’s personality, the trial court’s opinion was not based upon any finding of neurotic disorder on Maryanne’s part. Rather it was based upon the court’s conclusion that George would be better able to serve George Jr.’s interests.

There is also no merit to Maryanne’s contention that Dr. Bussell’s testimony and written report were impeached with respect to his finding that Maryanne tended to overexaggerate the seriousness of the child’s asthma. The trial court heard several witnesses who had spent significant periods of time with the child and never saw him experience any symptoms of asthma. No medical testimony was presented indicating that the child’s asthma was so serious that George could not manage it. To the contrary, substantial evidence was presented showing that George could do so and had demonstrated his ability to do so. The trial court was also presented with considerable testimony to the effect that Maryanne tended to overreact by rushing the child to the emergency room, called George constantly on weekends to check up on George Jr., claimed he was ill when he was not and possibly overmedicated him. Although Maryanne criticized Dr. Bussell’s testimony that her ‘ ‘ over mothering’ ’ was reflected in the fact that George Jr. missed 90% of his scheduled school days, and states that he missed much less, according to the record, the information about the child’s having missed school 90% of the time was information that Maryanne had given Dr. Bussell in his interviews with her.

There is also no merit to Maryanne’s claim that the bulk of the evidence established that she was a careful parent and that George was not. Although Maryanne placed great emphasis on George’s alleged drinking problem, she produced no witnesses to corroborate her testimony. Maryanne herself testified that she could not say that he had ever been impaired by alcohol when he picked up George Jr. Moreover, even George’s witnesses who testified that they drank with him on social occasions testified that they had never seen him intoxicated and that he never drank when he had visitation with his son.

On the basis of the testimony of George’s own witnesses, as well as a DUI incident when he was approximately 18 to 19 years old and an incident six years prior to trial for which he was ticketed for improper lane usage, the trial court determined that George was an alcoholic. As noted previously, however, the trial court found that he had rehabilitated himself, that he functioned well and that alcohol had no adverse impact on his life or on his parenting skills. Section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 602) specifically requires that “[t]he court shall not consider conduct of a *** proposed custodian that does not affect his relationship to the child.” See also In re Custody of Blonsky (1980), 84 Ill. App. 3d 810, 405 N.E.2d 1112.

Maryanne’s contention that George lacked concern for his son’s health problems is also not demonstrated by the record. George presented testimony by six witnesses, among them Maryanne’s father, all of whom were of the opinion that George was an attentive and careful parent and that he would be the better custodial parent. There was testimony showing that George purchased special medical equipment necessary to cope with the child’s asthma and that he had been trained in its use. George testified that he had contacted various of George Jr.’s doctors regarding the proper dosage of the medications that the child required on a daily basis. In short, no witness other than Maryanne herself raised questions as to George’s parental fitness. In contrast, several witnesses testified regarding unstable behavior on Maryanne’s part.

In urging reversal, Maryanne also relies on Dr. Littner’s testimony that she was the primary caretaker and the psychological parent and therefore she should remain the custodial parent. She points to Dr. Littner’s testimony that the usual trigger for an asthma attack in a young child is the fear of being abandoned by his mother and that separation could bring on a condition known as status asthmaticus, which is unbeatable and can cause death. On this basis, Dr. Littner testified that custody should not be transferred away from Maryanne.

The record demonstrates that there was substantial disagreement as to the effect of separating George Jr. from Maryanne. Moreover, the issue before the trial court here was which parent would be the better custodial parent, and although Dr. Littner was the child’s psychologist, he conceded that he had never interviewed George nor had he conducted any psychological tests on either Maryanne or George. Even assuming he had some basis for believing Maryanne to be the preferable custodial parent, his opinion was only one factor to be considered by the trial court and would not be determinative in as much as he had no basis for assessing George’s parental abilities or the quality of his relationship with his son.

In cases involving custody, it is the trial court’s responsibility to evaluate the circumstances before it and assess the witnesses’ credibility. As a reviewing court we will not overturn the trial court’s determination unless the judgment is against the manifest weight of the evidence. (In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 609, 434 N.E.2d 811.) The trial court here heard substantial testimony regarding George’s fitness as a custodial parent. While the court may also have found that Maryanne was a fit mother, after evaluating all of the evidence and considering the witnesses’ credibility, the trial court determined that George would be the better custodial parent of the two. On the basis of the record before us, we find no reason to disturb the trial court’s ruling.

Accordingly, the order of the circuit court of Cook County granting custody of George Mangan, Jr., to George Mangan is affirmed.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROOSEVELT LANDGHAM, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—0637
    Opinion filed April 11, 1989.

      Michael J. Pelletier and Bruce Mosbacher, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Christine Perille, Special Assistant State’s Attorney, and Inge Fryklund and Judy L. Groeneveld, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder, and, after the judge held a death penalty hearing without a jury, he was sentenced to natural life imprisonment. He appeals, arguing that (1) the trial court erred in refusing to accept his pretrial waiver of a death penalty jury, in refusing to “life qualify” the jury, and in questioning the jury pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770; (2) the trial court erred in allowing Dwight Moore to testify about an alleged sexual attack by defendant and in allowing testimony regarding the defendant’s statement made while in custody; (3) the prosecutor’s remarks during closing argument denied defendant his right to a fair trial; and (4) the trial court erred in refusing to submit an involuntary manslaughter instruction to the jury.

Artie Williams testified that on May 2, 1984, she helped her 10-year-old son, Jammie, get ready for school and gave him a key to their apartment since she would be doing errands when he returned home from school. When she arrived home that evening and discovered that Jammie was not in the apartment, she made a tour of the neighborhood for him, but without result, and then reported to the police that he was missing.

Jammie’s body was discovered the next day on a platform behind a store near Lexington and California Avenues in Chicago. Dr. Robert Stein, the chief medical examiner of Cook County, testified that he was called to the scene, where he observed that Jammie was lying on his left side, with his right leg bent at the knee, that he was fully dressed, and that there were abrasions and contusions on his face and neck. Dr. Stein conducted an autopsy, which revealed injuries to Jammie’s face, neck, chest, elbow, knee and the left side of his body. The internal examination revealed chest hemorrhages, lacerations in the lungs, hemorrhage in the mediastinum and injuries to the outer portion of the heart. Dr. Stein determined that the cause of death was a “compression injury causing a result of blunt injury and the manner of death, homicide.” He further testified that such cause of death was compatible with being beaten with a table leg and that there was no evidence of a sexual assault.

Jay Link, Jammie’s 11-year-old friend, testified that in the early evening of May 2, 1984, he and Jammie were playing in front of their apartment building, when defendant, who lived nearby, called them over to do some exercises. The boys crossed the street, but Jay’s mother called him to come home, so he left while Jammie was talking with defendant.

Robert Armstead, 14 years old at the time of trial, testified that in late April 1984 defendant asked him if he wanted to make some money by helping him provide exercises for children. Robert and his friend went to Douglas Park with defendant and began doing pushups, and while they were doing so, defendant touched them at the waist. No children showed up for the exercise class; hence, after a 10-minute wait Robert and his friend left. Defendant asked them to return the next afternoon, but the boys did not go back.

Over a defense objection, the State called Dwight Moore, an 11-year-old friend and neighbor of Jammie’s. On the Monday of the week that Jammie disappeared, Dwight had gone to see defendant because defendant had told him he could make money tumbling. Defendant took him inside a church in the neighborhood and told him to take off his clothes. When Dwight refused, defendant pulled his pants down and felt his “privates,” but as soon as defendant heard a knock on the door he told Dwight to put his clothes on and warned him, “If you tell anyone, I’ll kill you.” Dwight did not tell anyone about this incident until he spoke with the police six weeks later.

The police arrested defendant on June 12, 1984, and advised him of his rights before questioning him. Defendant denied holding exercise classes and denied knowing either Dwight or Jammie, whereas in a previous interview, on June 3, 1984, defendant told the police that he did know Jammie. When asked about going to the church with Dwight, he stated, “I don’t want to talk about that.”

The next day defendant was given a polygraph test by John Stout. At trial the jury was told that Stout was a civilian employee of the police department who had interviewed defendant. Defendant at first told Stout that he did not know Jammie, but that he had seen his picture in the paper; yet, later, he told Stout that he had seen Jammie and suspected that he was buying dope for his brother. He followed Jammie into a building and saw him fall, after which defendant went home.

After talking with Stout, defendant told a similar story to Officer Keane, but when Keane pointed out to him that his story contained discrepancies, defendant responded that he would now tell the truth and proceeded to give Keane yet another version of the incident. He claimed that Jammie came to the church to show him some flips, and after one particular flip, he landed on his head and broke his neck. Defendant then carried him to the landing where he was later found. After Keane informed defendant that Jammie did not suffer a broken neck, defendant again said he was going to tell the truth and rendered still another version of the occurrence.

Keane then contacted Assistant State’s Attorney Vroustouris, who interviewed defendant and wrote out his statement. In his statement defendant related that Jammie was interested in exercise classes and wanted to show defendant how good he was. Jammie went to Solid Rock Number 2 Baptist Church at 742 South California in Chicago with the defendant and started doing exercises. While defendant was holding Jammie’s leg so he could try a flip, he lost his footing and both he and Jammie fell. Defendant got up and turned Jammie over and noticed blood in his mouth. He shook Jammie but because he did not respond, defendant thought he was unconscious though not dead. Defendant then picked up a piece of a metal and wood table leg approximately 21/2 feet long and struck Jammie in the chest and the back of the neck. He then carried him to a porch near the church because he knew he had done “something bad” and did not want to get caught.

After he was found guilty of murder, defendant executed a written waiver of jury for the death-sentencing proceedings, and having heard arguments on both aggravation and mitigation, the trial judge sentenced defendant to natural life imprisonment without parole.

Opinion

Defendant first argues that the trial court erred in allowing the jury to be death qualified, or “Witherspooned,” thus depriving him of his right to a fair trial by an impartial jury. Prior to trial defendant attempted to waive his right to a jury for sentencing at a death penalty hearing, but the judge refused to accept the waiver, ruling that it was premature because it would not be binding if defendant changed his mind about it after trial.

The Illinois Supreme Court has held that a trial court must accept a pretrial waiver of a jury for death-sentencing proceedings if that waiver is knowing and voluntary (People v. Erickson (1987), 117 Ill. 2d 271, 513 N.E.2d 367; Daley v. Hett (1986), 113 Ill. 2d 75, 495 N.E.2d 513); however, that ruling is not retroactive. (People v. Erickson (1987), 117 Ill. 2d 271, 513 N.E.2d 367.) Defendant’s trial began in January 1986, while Daley v. Hett was not decided until June 1986. Moreover, in Erickson, the court held that the trial court’s refusal to accept a sentencing jury waiver before trial and the consequent death qualification of a jury did not entitle the defendant to a new trial. (117 Ill. 2d at 291-92.) Although defendant is aware of the Erickson decision, he argues that it was decided incorrectly. That contention, it goes without saying, cannot be given residence in this court.

Defendant next maintains that he was denied his right to an impartial jury because a death-qualified jury is conviction prone, citing studies accepted by the court in Grigsby v. Mabry (8th Cir. 1985), 758 F.2d 226, rev’d sub nom. Lockhart v. McCree (1986), 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758. In reversing the Eighth Circuit, however, the Supreme Court found that under the facts presented, death qualifying the jury did not violate the fair-cross-section requirement of the right of an accused to a trial by an impartial jury. But defendant claims that that decision is not controlling in the instant case, because Lockhart was “premised on the assumption that the same jury would decide both guilt or innocence and whether the death penalty would be imposed.” See 476 U.S. at 165, 90 L. Ed. 2d at 142, 106 S. Ct. at 1760.

Our supreme court, on the other hand, has made Lockhart conclusive on the issue as follows:

“We next address defendant’s argument that qualification of the jury pursuant to Witherspoon v. Elinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, denied him his right to a jury drawn from a fair cross-section of the community and resulted in a conviction-prone jury. The Supreme Court has recently rejected in Lockhart v. McCree [citation] a challenge to the qualification of jurors under Witherspoon on precisely the same grounds as defendant now raises. Our decisions are in harmony with Lockhart and therefore need not be reconsidered. The qualification of jurors under Witherspoon does not deny a defendant the right to a jury drawn from a fair cross-section of the community [citations], nor does it result in a conviction-prone jury.” (People v. Johnson (1986), 114 Ill. 2d 170, 207, 499 N.E.2d 1355, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618.)

We note that in Johnson, as in the instant case, defendant waived his right to a jury at the death penalty hearing and was therefore sentenced by the trial judge.

Moreover, the studies relied upon by the Eighth Circuit in Grigsby v. Mabry have been rejected by Illinois courts:

“Defendant contends that Witherspooning the jury venire resulted in a jury which was biased in favor of prosecution and which failed to represent a fair cross-section of the community. Our supreme court rejected the ‘conviction-prone jury’ argument in People v. Lewis (1981), 88 Ill. 2d 129, 147, 430 N.E.2d 1346, cert. denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307. The court reaffirmed its holding in Lewis in People v. Tiller (1982), 94 Ill. 2d 303, 321-22, 447 N.E.2d 174, and People v. Free (1983), 94 Ill. 2d 378, 401, 447 N.E.2d 218. The court has also rejected the argument that Witherspooning results in an unrepresentative jury. (See People v. Free (1983), 94 Ill. 2d 378, 401-02, 447 N.E.2d 218.) Defendant submits, however, that the decision in Grigsby v. Mabry (E.D. Ark. 1983), 569 F. Supp. 1273, warrants a reversal of the law as set forth by the highest court in that [sic] State. *** [T]hese studies were all available to our supreme court at the time that Lewis, Tiller and Free were decided, and presumably the court was aware of their existence but unpersuaded. In any event, in light of our supreme court’s clear pronouncements on the issues raised by defendant, we refuse to follow the holding in Grigsby.” People v. Smith (1984), 127 Ill. App. 3d 622, 636, 469 N.E.2d 634.

Furthermore, in holding that Daley v. Hett is not retroactive, the supreme court stated that a “Witherspooned” jury is presumed to be impartial.

“It is clear as well that, unless the defendant can demonstrate that the death questioning of prospective jurors produced an unfair jury, he would fare no better if we were to hold Hett retroactive. It is well established that a jury questioned regarding imposition of the death penalty is presumed to be a fair jury on the issue of guilt or innocence.” (Erickson, 117 Ill. 2d at 292.)

Here defendant has not overcome the presumption that the jury was impartial; thus, he has not shown that he was denied a fair trial.

The next issue defendant raises is that the trial court erred in failing to “life-qualify” the jury by asking questions that would identify those jurors who would automatically vote to impose the death penalty if they convicted the defendant of murder. Defendant fails to cite any authority in support of his contention that the judge should have so conformed, other than the studies used in Grigsby v. Mabry which conclude that those who favor the death penalty are more likely to convict — a theory to which our courts, as we noted above, have already denied sanctuary.

As discussed previously, Illinois courts have rejected the argument that death-qualified juries are conviction prone. In addition, the supreme court has held that there is no need to “life-qualify” a jury.

“As we have held previously, there is no ‘reverse Witherspoon’ rule that requires the trial court to ‘life qualify’ a jury to exclude all jurors who believe that the death penalty should be imposed in every murder case. [Citations.] A defendant, however, is free to question the jurors regarding bias, and it is then for the trial court to decide whether to excuse a juror for cause.” (People v. Brisbon (1985), 106 Ill. 2d 342, 359, 478 N.E.2d 402.)

Defendant’s conviction must be affirmed on this issue.

Defendant’s next contention is that the trial court erred in denying his motion in limine to prevent Dwight Moore .from testifying about an alleged sexual attack by defendant. He maintains that there was no evidence that Jammie had been sexually assaulted and therefore the evidence was not probative of any issue in the case. He also claims that the trial court failed to consider the substantial prejudice resulting from this testimony.

In denying defendant’s motion as to Dwight Moore, the trial court stated:

“The court considers that the State’s theory is — is that sex was involved, although no acts of sex appear to have been committed against the victim.
Dwight Moore made a statement where he indicated that he, too, was involved in exercise classes and was told to undress, and then there was some fondling, and then a knock at the door, and the defendant told him, in respect, to keep his mouth closed or he — or else he would be killed. And the State argues in that instant .[sic] that it is admissible of another crime, that it shows the motive for him killing the deceased.
The State does not have to prove a motive, but if the State proceeds on a theory of a motive, then the State is obligated to prove that. The Court also considers that the time period, the two-day time period, and the circumstances of the Dwight Moore matter as compared to the circumstances of the — of the killing of the decedent in this case, and *** [although it is a different crime, it is admissible on the matter of motive.
The Court also considers that the defendant’s statement relative to the incident involving the deceased, does have within it, if that’s — if that statement is to be believed, some exculpatory representations. The principal one is that the — whether it be true or not — it is that the victim had fallen and was unconscious, although he was still alive. Would he have survived? If this were so, would he have died — if this were so?
The Court does not know. Was it accident? The Court does not know. The State says it was not. Is it another crime where a person has been involved — where the defendant has threatened that person after sex circumstances became involved? Is that admissible on this?
The Court thinks that it is.”

In making its decision, the trial court relied on People v. Dewey (1969), 42 Ill. 2d 148, 246 N.E.2d 232. In that case, the defendant testified that the victim was struck as she ran in front of his car, and that he placed her in his car, intending to take her to a hospital; but, when he realized she was dead, he disposed of her body. The trial court allowed evidence that defendant had previously attempted to pick up girls of the same age as the victim, and the supreme court affirmed.

“Evidence which tends to prove a fact in issue is admissible even though it discloses that the defendant committed another crime, and evidence which establishes motive, intent, identity, accident or absence of mistake is admissible even though it may also involve proof of a separate offense. [Citation.] Also evidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit a crime. [Citation.] In this case, the evidence complained of did not constitute a criminal offense. Throughout the trial, the defendant claimed that he had accidentally struck Susan Brady with his car when she darted in front of him, and that he put her in his automobile after she was injured for the purpose of taking her to a hospital. Whether Susan died by accidental or criminal means was a question of fact for the jury, and the evidence under consideration was probative of that fact and therefore admissible on the authority of the cases cited above.” 42 Ill. 2d at 157.

In the instant case, the State contends that Dwight Moore’s testimony was proper to show motive and to disprove the theory of an accident. It maintains that the trial court properly exercised its discretion, as is evidenced by the fact that it did not allow proof of defendant’s 1966 murder conviction, which was also the subject of his motion in limine. We find that the testimony regarding defendant’s sexual assault on Dwight Moore was probative of whether Jammie died by accidental or criminal means; it was therefore properly admitted. (R. Ruebner, Illinois Criminal Trial Evidence ch. 2, at 38-39 (1986).) Besides, the trial court gave proper consideration to the factor of whether the prejudicial effect of such evidence substantially outweighed its probative value; accordingly, we hold that he did not abuse his discretion in ruling it admissible. (R. Ruebner, Illinois Criminal Trial Evidence 41 (1986).) Defendant’s conviction is affirmed on this issue.

Defendant next advances the argument that his fifth amendment right to remain silent was violated by Detective Keane’s testifying to defendant’s statement that he didn’t “want to talk about that,” made in response to a question about his taking Dwight Moore to a church. He further contends that the State violated Supreme Court Rule 412(a)(ii) (107 Ill. 2d R. 412(a)(ii)) by failing to tender this statement to him pursuant to a proper request. Rule 412(a)(ii) provides in part as follows:

“[T]he State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control: *** (ii) any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such statements.” 107 Ill. 2d R. 412(aXii).

The State responds that defendant did not immediately object to Keane’s testimony, nor did he ask for a continuance; had he done so, the court could have sustained the objection or instructed the jury to disregard the remark. (People v. Jackson (1981), 84 Ill. 2d 350, 359, 418 N.E.2d 739.) Instead, defense counsel moved for a mistrial after the questioning had proceeded to another topic. The trial judge determined that declaring a mistrial was an inappropriate sanction for the State’s failure to tender defendant’s statement in response to his request for discovery, and a reviewing court will not disturb the exercise of a trial court’s discretion in determining a sanction absent a showing of surprise or prejudice. (People v. Loggins (1985), 134 Ill. App. 3d 684, 691, 480 N.E.2d 1293.) The State further contends that defendant was not invoking his right to remain silent when he declined to answer a question regarding Dwight Moore, relying on People v. Rickard (1981), 99 Ill. App. 3d 914, 425 N.E.2d 1317:

“First, defendant claims the statement, T won’t tell you,’ is consistent with the exercise of his rights afforded under the fifth amendment and amounts to a desire to remain silent during police questioning. We disagree. Defendant made the statement twice in response to questions regarding the whereabouts of his car and where he lived. The responses were made after defendant had answered various questions regarding his previous contact with the decedent. He answered subsequent questions as well. After considering the entire colloquy, we believe defendant was refusing to answer two pertinent questions rather than expressing a desire to remain silent. In fact, the defendant never expressed an unwillingness to talk. The colloquy in question did not take place in the police station nor is there any claim of coercion or duress. Prior to each series of questions and answers, defendant was given a Miranda warning. he indicted he understood its meaning. We believe a more positive manifestation of a desire to invoke the protections of the fifth amendment is required under these circumstances.” (99 Ill. App. 3d at 917.)

In the instant case, the facts regarding the statement at issue are congruent with those in Rickard: although defendant was being held at the police station when he declined to answer the question, he was given his Miranda warnings, and he makes no claim that he did not comprehend those warnings or that he was coerced or under duress. Then, too, of the many questions he was asked about the victim, and the circumstances surrounding the offense about which he was interrogated, defendant refused to answer only the inquiry concerning Dwight Moore; hence, it is reasonable to conclude that he was not expressing a desire to remain silent. We therefore hold that defendant’s argument is without merit.

Defendant next claims that he was denied a fair trial when the judge refused to instruct the jury on involuntary manslaughter. He maintains that he struck Jammie with a table leg after finding him unconscious in a “reckless attempt to revive him,” and that there was evidence presented that the killing was unintentional.

A defendant is entitled to a manslaughter instruction if there is evidence in the record that would reduce the crime from murder to manslaughter. (People v. Foster (1987), 119 Ill. 2d 69, 87, 518 N.E.2d 82, cert. denied (1988), 486 U.S. 1047, 100 L. Ed. 2d 628, 108 S. Ct. 2044; People v. Ward (1984), 101 Ill. 2d 443, 451, 463 N.E.2d 696.) A person commits involuntary manslaughter if he “unintentionally kills an individual without lawful justification *** if his acts, whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a).) It is not necessary to show that the defendant deliberately formed an intent to kill in order to sustain a conviction; rather, it is enough to imply the intent to murder by showing the voluntary and willful commission of an act, the direct and natural tendency of which is to destroy another’s life. People v. Evans (1981), 92 Ill. App. 3d 874, 879, 416 N.E.2d 377; People v. Davis (1966), 35 Ill. 2d 55, 219 N.E.2d 468.

Here, the trial judge said all that needs to be said on this subject when he found that “there’s no evidence in this case that is such — is such that it raises the issue of involuntary manslaughter.” We are constrained to add, however, that defendant’s assertion that he beat a 10-year-old boy with a 21/2-foot-long table leg as he lay bleeding from the mouth in order to revive him in light of the uncontroverted evidence of an autopsy which showed external injuries over virtually every part of his body plus multiple hemorrhages and other internal injuries, to say nothing of the manifold contradictory statements he made to the police, resonates no better in our ears as evidence warranting a manslaughter instruction than it did in those of the trial judge; we accordingly hold that the trial judge’s ruling on this issue was proper.

Finally, defendant contends that he was denied a fair trial by the prosecutor’s improper remarks during opening and closing argument when the State referred to defendant as “every mother’s nightmare,” and repeatedly stated that the “story” the jury was about to hear was “every mother’s nightmare.” The State also called defendant a “con man,” and, although there was no evidence thereof, it argued that he had sexually attacked Jammie.

“[T]his sneering man is responsible for the death of Jammie Williams because he was doing to Jammie the same things that two days earlier he did to little Dwight.”

Defendant claims these errors were compounded when the trial judge sustained several objections to “proper arguments” made by defense counsel during her closing argument.

The State responds that a prosecutor is allowed great latitude during closing argument and, absent an abuse of discretion, the determination of the trial court as to the propriety of closing argument should be upheld. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 322, 379 N.E.2d 847.) It maintains that the prosecutor’s remarks were proper comment on the evidence and that they were clearly warranted as natural inferences that can be reasonably drawn therefrom, as is evidenced by defense counsel’s also referring to the plight of the victim as a mother’s nightmare, when she stated:

“We are certainly not denying that. It is indeed, the story of the whole community’s nightmare. A terrible thing happened to Jammie Williams. The evidence will show you that clearly.”

The State also contends that, if, arguendo, these comments were improper, they did not substantially prejudice defendant because they were objected to at trial and the court sustained the objections. People v. Trolia (1982), 107 Ill. App. 3d 487, 437 N.E.2d 804, cert. denied (1983), 460 U.S. 1044, 75 L. Ed. 2d 798,103 S. Ct. 1442.

We quite agree with the arguments made by the State. Moreover, the evidence against the defendant was as massive as it was appalling, leading irresistibly to the conclusion that he was guilty beyond any reasonable doubt. Accordingly, we hold that the prosecutor’s remarks could not have been a material factor in defendant’s conviction.

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

Affirmed.

BILANDIC, P.J., and EGAN, J., concur.

       Judge Egan participated in the decision of this case prior to becoming a member of the sixth division.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFRED MOATON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—2861
    Opinion filed April 11, 1989.
    Randolph N. Stone, Public Defender, of Chicago (John Kennedy and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Edward Pacer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

On June 15, 1987, defendant pleaded guilty to two counts of forgery and was sentenced to 30 months’ probation. Approximately five weeks later, i.e., on July 24, 1987, the People petitioned to have defendant’s probation revoked, charging that defendant had violated all three conditions thereof. A hearing was held on July 29, 1987, after which the court found defendant guilty as charged and sentenced him to five years in the custody of the Illinois Department of Corrections. Defendant now appeals and raises the following issues: (1) whether it was an abuse of discretion for the court to terminate his probation, and (2) whether he is entitled to 39 days time served on probation to be credited against his sentence for imprisonment.

The terms of defendant’s probation were as follows. He was to meet with probation officer McCann five times each week; more specifically, he was to meet with McCann twice weekly at McCann’s office, two nights per week at defendant’s home for a curfew check, and once a week at a community service site. His curfew required defendant to be at home between the hours of 7 p.m. and 7 a.m. Until the community service began, defendant was to make that meeting at McCann’s office. Defendant was also required to make certain restitution payments beginning in June of 1987.

According to the record, defendant failed to appear for the requisite meetings on June 22, June 25, June 29, July 2, July 6, July 8, July 10, July 13, July 16, July 17, and July 20. In addition, the record discloses that defendant was frequently not in when McCann attempted home visits; the officer found defendant to be absent on June 22, June 30, July 1, July 4, July 12, July 13, July 17, July 22, and July 23. During the home visits of July 12 and July 22, defendant was on the premises surrounding the home, but outside of the house, which is considered to be a probation violation. On June 30, McCann telephoned defendant’s residence and was informed by defendant’s godfather that defendant was not at home. Defendant also failed to make any restitution payments.

On June 22, 1987, McCann telephoned defendant, and in that conversation, defendant informed the officer that he was having difficulty getting to the probation office. Other than on this one instance, initiated by McCann, defendant never bothered to explain to the officer why he had missed his visits.

Defendant admitted that he reported to the probation office only three times, claiming that the reason for his failure to meet the requirement was that he did not have the money to make the trip. Defendant was unemployed and not yet on public aid; he lived with his godfather and helped in his godfather’s ice-cream business. The probation office was located at 2659 South California Avenue in Chicago; defendant resided at 15803 Paulina Avenue in Harvey. Thus, defendant was required to take some form of public transportation in order to attend the meetings.

Defendant testified that he was never told that in order to comply with the curfew requirement he had to remain inside his home. He further stated that he had an unfriendly relationship with his godfather’s girlfriend, and that because of this animosity, she lied to McCann when she told him that defendant was at “the store” at the time of his July 13, 1987, curfew check. Defendant also stated that he was at home on each day that his probation officer came by. In addition, defendant informed the court that while he previously was unable to make restitution payments, his pubic aid payments had commenced and he would now be able to begin to make those payments and his weekly meetings with his probation officer.

As already noted, the judge found defendant guilty of each of the matters alleged in the People’s petition, revoked defendant’s probation, and sentenced him to five years in prison. Pursuant to defense counsel’s request, defendant was credited with 154 days time served, 105 of those days having been spent in Cook County jail prior to being placed on probation and 49 days as credit for the time he was held in custody prior to being committed to the Department of Corrections. Inasmuch as counsel did not request it, defendant was not at this time given credit for the 39 days he spent on probation.

Defendant argues that it was an abuse of discretion for the court to terminate his probation, contending that pursuant to section 5 — 6—2(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—2(c)), a court may terminate probation only as follows:

“The court may at any time terminate probation or conditional discharge if warranted by the conduct of the offender and the ends of justice ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 6 — 2(c).)

A reviewing court will not disturb a trial court’s order revoking probation absent an abuse of discretion. People v. Cozad (1987), 158 Ill. App. 3d 664, 511 N.E.2d 211, cert. denied (1988), 485 U.S. 964, 99 L. Ed. 2d 432, 108 S. Ct. 1233.

Defendant first addresses the requirement that he meet with his probation officer two times a week, with one extra weekly visit until the commencement of his community service. Defendant complains that in revoking his probation merely because he was temporarily unable to comply with the above-noted conditions, the trial court abused its discretion. This inability, he asserts, was due to the $14 weekly expense of public transportation to the probation office, which, being unemployed, he was unable to afford. Defendant further claims that he was eventually eligible to receive public aid, and at the time of the hearing, he had just become able to afford to meet with his probation officer and that he make the requisite restitution.

Defendant cites People v. Welch (1979), 78 Ill. App. 3d 184, 397 N.E.2d 94, in support of his position. In Welch, it was established that defendant was not given any assistance by his probation officer in obtaining psychiatric counseling. The court concluded that the “responsibility was juggled back and forth without ever being shouldered by defendant or the agency with which he dealt,” and reversed the trial judge’s finding of violation of probation. (Welch, 78 Ill. App. 3d at 187.) Defendant argues that, similarly, his probation officer did not give him any assistance in resolving his problem of keeping his appointments. Defendant asserts that in applying for and receiving public aid, he removed the temporary barrier to his compliance.

In arguing that he did not pay restitution because he was unemployed and that therefore he did not have the means with which to do so, defendant cites section 5 — 6—4(d) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4(d)), which provides:

“Probation *** shall not be revoked for failure to comply with conditions of a sentence or supervision, which imposes financial obligations upon the offender unless such failure is due to his willful refusal to pay.”

Defendant adds that it is the burden of the State to prove that his failure to pay restitution was willful, asserting that where there is no such evidence, a judgment of violation of probation cannot be sustained. (People v. Harder (1975), 59 Ill. 2d 563, 322 N.E.2d 470; People v. Boucher (1974), 57 Ill. 2d 225, 311 N.E.2d 679.) Defendant claims that in the case at bar, no evidence of willfulness was adduced at trial, and that, accordingly, the judgment finding him in violation of his probation cannot be upheld.

As to the curfew requirement of his probation, defendant alleges that there is a dispute as to the exact meaning of the requirement that he be “at home” from 7 p.m. to 7 a.m. daily, and that at the hearing, testimony differed as to whether the defendant was at home on nine different occasions.

Defendant also argues that in entering judgment, the court did not supply the basis for its determining that there be a revocation of probation, inasmuch as it might consist of a failure to report, failure to pay restitution, a violation of curfew, or any combination thereof, and that it is necessary for the prosecution to prove a violation of a particular provision of the probation order. (Cozad, 158 Ill. App. 3d at 674.) He concludes that he suffered prejudice because it is impossible to determine the court’s reason for revocation from the record, and that the finding of a violation of probation should consequently be reversed.

We hold that defendant’s failure to report to his probation officer in and of itself provides sufficient grounds to revoke probation. (Cozad, 158 Ill. App. 3d at 669; In re B.R.J. (1985), 133 Ill. App. 3d 542, 478 N.E.2d 1206.) Defendant began to fail to attend required meetings with his probation officer only seven days after he was put on such status; in fact, he attended only three of the required meetings.

People v. Welch lends no support for his position and is distinguishable, for in Welch, the defendant actively sought psychiatric counseling in compliance with the terms of his probation and was refused. Due in part to the defendant’s diligence there, the court found that he was not solely responsible for the violation of his probation. (Welch, 78 Ill. App. 3d at 186.) In the instant case, defendant made no effort whatsoever to abide by that condition of his probation which required him to visit with his probation officer a definite number of times per week. Moreover, there is no showing that the officer, in any active or passive fashion, thwarted defendant’s attempts to comply with the terms of his probation. The officer was at his office on each scheduled day. Furthermore, defendant’s only effort to alert the officer of his situation consisted of a telephone report, and even then it had to be McCann who made the call, in which defendant stated merely that he was having difficulty getting to the office. We find that the rationale of Welch is not applicable to the case sub judice and that defendant’s probation was properly revoked.

Since defendant made no effort either to pay restitution or to explain why he was unable to do so, the court was correct in revoking his probation on these grounds as well. In Bearden v. Georgia (1983), 461 U.S. 660, 668, 76 L. Ed. 2d 221, 230, 103 S. Ct. 2064, 2070, although the Court found that where defendant had borrowed money, repeatedly tried to find employment and informed the probation office that his payments would be late, his probation should not be revoked for failure to pay, the Court also went on to say:

“Similarly, a probationer’s failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the find or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense.”Bearden, 461 U.S. at 668, 76 L. Ed. 2d at 230, 103 S. Ct. at 2070.

In applying the reasoning of Bearden to the present case, we note that here there is no evidence that defendant attempted to become employed, borrow money, or inform the probation office of his predicament. It was only at the revocation hearing that defendant informed the State and his probation officer that he “had just become able to” comply with the financial conditions of his probation since he was now on public aid. Consequently, we hold that in this instance also defendant’s probation was properly revoked.

We find, too, that defendant did in fact violate his curfew requirement. Conflicting evidence alone does not provide a sufficient reason to reject a court’s finding of a probation violation. (People v. Whitfield (1986), 147 Ill. App. 3d 675, 679, 498 N.E.2d 262.) We are constrained to note at this point also the engaging ambidexterity with which defendant addresses this part of his argument: on the one hand he would have the court believe that he could not afford the expense of transportation to McCann’s office; yet on the occasions that McCann called upon him, defendant failed to be at home.

Moreover, although a probation revocation is subject to review, the reviewing court will not disturb the finding unless it is against the manifest weight of the evidence. (Cozad, 158 Ill. App. 3d 664, 511 N.E.2d 211.) In Cozad, the defendant’s probation was revoked when he violated his curfew on only two occasions, the court holding that since a violation of a curfew condition frustrates the goals of probation, such a violation alone serves as proper grounds for the revocation thereof. (158 Ill. App. 3d at 670.) Here, since the defendant violated his curfew at least seven times, we cannot say that the trial judge abused his discretion in revoking his probation.

As to defendant’s last point, the trial court clearly and correctly found him guilty on “each” of the three charges, the court stating:

“Finding of guilty as to each of these matters. I have a presentence before me, but the presentence is of June 4th, 1987. *** By the way, judgment on the finding of guilty in each matter.” (Emphasis added.)

As noted previously, if any one of multiple conditions is violated, it is within the trial court’s discretion to revoke an offender’s probation. Defendant made no effort to find employment or some other means of meeting the conditions of his probation beyond applying for public aid — and even as to that, he failed to inform the probation officer until the hearing on revocation. The trial court’s finding him guilty of violating each of the conditions was not against the manifest weight of the evidence, nor was it an abuse of its discretion.

Defendant’s final argument is that he is entitled to 39 days time served on probation to be credited against his sentence of imprisonment. Defendant asserts that the 1987 sentencing statute is applicable here in light of the fact that his original offenses took place in 1987, as did his alleged probation violation and resentencing hearing. The statute provides:

“(h) Resentencing after revocation of probation, conditional discharge or supervision shall be under Article 4. Time served on probation, conditional discharge or supervision shall be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-4(h).)

Pursuant to this statute, defendant argues that he was entitled to a total of 193 days credit against his sentence. The trial court granted him only 154 days of such credit. Prior to being placed on probation on June 15, 1987, defendant had served 105 days in Cook County jail; on July 24, 1987, he was held in custody, and remained in custody for 49 additional days until September 11, 1987, when he was placed in the custody of the Department of Corrections for five years. Although he received credit for "uch time served, defendant was not given credit for the 39 days he spent on probation, to which he asserts he is entitled. As previously noted, defense counsel did not request credit for these 39 days; accordingly, the State contends in its brief that the issue is waived. However, the State in oral argument did not press the point. Consequently, we grant defendant the 39 days additional credit he seeks in this case.

Affirmed in part, and modified in part.

BILANDIC, P.J., and EGAN, J., concur.

       Judge Egan participated in the decision of this case prior to becoming a member of the sixth division.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES WASHINGTON, Defendant-Appellant.
    First District (Third Division)
    No. 1—85—3110
    Opinion filed April 12, 1989.

      Robert K. Mayer, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., and Nancy Black, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Charles Washington, was found guilty, by a jury, for the murder of his brother-in-law Nathan Bottley. He was sentenced to serve 28 years in prison. This court reversed and remanded the case, holding that defendant was denied effective assistance of counsel. (People v. Washington (1982), 111 Ill. App. 3d 711, 444 N.E.2d 753.) This court’s decision was affirmed by the Illinois Supreme Court. People v. Washington (1984), 101 Ill. 2d 104, 461 N.E.2d 393.

Following a second jury trial, defendant was found guilty of murder and sentenced to serve 25 years in prison. On appeal defendant contends that (1) the trial court erred in denying his motion to suppress an oral statement; (2) the State violated the rules of discovery by failing to notify defendant of its rebuttal witnesses; (3) the State violated rules of discovery by failure to reveal the substance of defendant’s oral statement and witnesses thereto; (4) the trial court erred in denying defendant’s motion to suppress the lineup identification; (5) the verdict was against the manifest weight of the evidence and should be reversed; (6) the trial court erred in refusing to permit defense counsel to cross-examine a witness and introduce evidence; and (7) the cumulative abuse by the prosecutors and police denied defendant his right to a fair trial. We affirm.

Jimmy Moore testified for the State. Moore stated that on May 7, 1979, at approximately 6:45 a.m., he arrived for work at the Canfield Bottling Company garage located at 111 East 89th Street in Chicago. Moore testified that after he checked into the office, he opened the overhead door to the garage and proceeded to check his truck to make sure that it was properly stocked. At about 7 a.m., Moore observed the victim pass by and walk in the direction of the office. Moore stated that soon thereafter, he heard a noise, turned, and saw the back of a man standing with a gun in his hand. The man was holding the gun with the barrel facing the ground. Moore testified that he observed the man fire the gun twice from a distance of approximately 18 feet. Moore observed the man’s face as he turned and exited the garage. Moore stated that he climbed down from his truck, walked to the spot where the shots were fired and observed the victim lying on the ground. Moore testified that he returned to the office and reported the shooting. Moore identified defendant in a lineup and in court as the person who fired gunshots in the Canfield garage on the morning of May 7, 1979.

Ivory Jenkins, district manager for Canfield, also testified on behalf of the State. Jenkins testified that he arrived for work at the 89th Street garage at approximately 6:30 a.m. on May 7, 1979. He stated that at about 7 a.m., while he was standing outside the office talking with one of the drivers, he heard a gunshot. Jenkins testified that he looked in the direction of the sound and observed a man run out of the rear garage door. He ran over to see what was happening and observed Nathan Bottley lying on the ground. Jenkins stated that he watched the man run westbound on 89th Street. After the man exited the garage, Jenkins got into his car and followed him. He stated that as he approached 89th and State Street, he saw the man who ran from the garage get on a northbound State Street bus. Jenkins followed the bus to 73rd and State Street. When he reached 71st Street, he flagged down a police car. However, when the police stopped the bus, the man who Jenkins was following was no longer on board. Although Jenkins never saw the offender’s face, he observed his body from the rear and described him as approximately 5 feet 3 to 6 inches tall, with a small build and “corn rolled” hair.

Marla Cranberry testified for the State and related that on May 7, 1979, she lived on the comer of 89th Street and Michigan Avenue in Chicago. She further testified that at about 7 a.m. on that date she was in the second-floor bathroom of her home when she heard a gunshot. Cranberry looked out her window which faces 89th Street and observed a man with a gun chasing another man down the middle of the street. She described the man with the gun as shorter and smaller than the man being chased. Cranberry further stated that the man being chased was wearing a brown Canfield’s uniform. She stated that the gunman had “corn rolls” in his hair and that he chased the other man into the open door of the Canfield company garage. Cranberry heard three shots fired and observed a man exit the garage and run westbound on 89th Street. Cranberry then called the police. Cranberry later identified the defendant in a lineup and at trial as the man she observed chasing a man down 89th Street at gunpoint on May 7, 1979.

Chicago police detective Frank Laverty was called by the State and testified that he was assigned to investigate the murder of Nathan Bottley. Laverty stated that he and another detective arrested defendant and placed him in a lineup. He stated that both Jimmie Moore and Marla Cranberry positively identified the defendant in the lineup.

The defendant’s first witness was Percy Green. Green testified that on May 7, 1979, at approximately 7 a.m., he was parking his car near the 89th and State Street offices of the Illinois Bell Telephone Company where he worked. He stated that as he parked he heard a noise that sounded like a backfire. Green testified that he saw a man running down 89th Street from the direction of Canfield’s. He stated that the man almost ran into his car and that he noted that he was wearing a beige jogging suit and had braided hair and a full beard. Green later went to Canfield’s garage and spoke with the police. The officers showed him a photo array which included defendant’s picture, but he was unable to identify anyone. Green testified that he could identify the beard and hairstyle, but not the face of the person who ran into his car.

Defendant also called his family minister, Reverend E.N. Williams'; his mother, Ethel Washington; his father, James Washington; his wife, Phyllis Washington; and his sisters Juanita Washington and Adellar Laye to testify on his behalf. His mother, father, wife and sister Adellar Laye all placed defendant in the family home, located in Chicago Heights, between the hours of 6:45 and 7:25 a.m. on May 7, 1979. All of defendant’s family members and Reverend Williams also testified that defendant’s hair was not braided on that date. In addition, defendant’s wife Phyllis testified that she and defendant left home together at approximately 7:30 a.m. that day to go job hunting.

The prior testimony of Effie Manson, who was deceased at the time of the second trial, was read to the jury by a court reporter. Manson previously testified that on May 7, 1979, she lived next door to the Washington family and that at about 7:15 a.m. she was on her front porch when she saw defendant and his father exit their home. She stated that defendant and his father switched the position of their cars in the driveway and defendant returned to the house. She further testified that defendant and his wife left the house at approximately 7:30 a.m. and drove away in their car.

Defendant testified on his own behalf. He stated that he awoke at approximately 7 a.m. on May 7, 1979, when his father asked him to move his car. Defendant testified that he moved his car and returned to the house. Defendant stated that he left home with his wife at approximately 7:30 a.m. He testified that they went job hunting at Simtron in Crete-Monee and United States Steel and Inland Steel in Gary, Indiana.

During cross-examination, the State attempted to question defendant regarding statements he made to Detective Laverty and Assistant State’s Attorney Terry Hake following his arrest on May 17, 1979. Defense counsel objected and requested a sidebar. During the colloquy out of the jury’s presence, defense counsel told the court that he was surprised by the introduction of an oral statement made by defendant and that the felony review memo which summarized the statement was never tendered pursuant to discovery. The State’s Attorney responded that the memo had been tendered and that the answer to discovery also referred to the statement. The court noted that the police report contained a summary of defendant’s exculpatory statement. Defense counsel made an oral motion to suppress the statement. The court noted that it had previously heard and denied motions to quash arrest and suppress identification. It ruled that the motion was untimely and that the statement would be admissible for impeachment purposes.

During further cross-examination, defendant testified that on May 17, 1979, he made a statement to Laverty in which he stated that his hair was not cornrowed on May 7, 1979, and that he was out looking for a job at 7 a.m. that day. However, he denied that he told Laverty that everyone in his home was asleep on that day. Defendant would neither admit nor deny that he told the detective that he could not recall the places he went on his job search.

Following rebuttal testimony and denial of defendant’s motion for a directed verdict, the jury returned a verdict of guilty of murder. The court subsequently sentenced defendant to 25 years in prison. This appeal followed.

Defendant first argues that his oral statement made to police officers was involuntarily obtained and that his motion to suppress, which was made during trial, should have been granted. We disagree.

Section 114 — 11(g) of the Code of Criminal Procedures of 1963 requires that motions to suppress the voluntariness of a confession “shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. If the motion is made during trial, and the court determines that the motion is not untimely, ***” the court may then hear the motion. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 11(g).) Where the defense was aware of grounds prior to trial, and had time and opportunity to make the motion, the trial court’s denial of an untimely motion will be upheld. (People v. Fernandez (1987), 162 Ill. App. 3d 981, 986, 516 N.E.2d 366, 369.) Further, where the defendant’s statement is contained in the police report which was tendered prior to trial as a part of discovery, defendant will be deemed properly notified of the possible grounds for the motion. People v. Torres (1981), 93 Ill. App. 3d 718, 720, 417 N.E.2d 728, 730-31.

The State’s answer to discovery which was filed on August 1, 1979, indicated that defendant made an oral statement which was summarized in the police report. Defendant acknowledged that he was in receipt of the State’s answer to discovery and police reports. However, defendant never raised the issue of the voluntariness of his oral statement prior to trial. Defendant raised the issue for the first time at trial by way of an oral motion to suppress the statement made during the State’s cross-examination of defendant. The court ruled that because counsel had a prior opportunity to bring the issue to the court’s attention, and failed to do so, the motion would be denied. The court also noted that the defendant testified that he was given Miranda warnings prior to talking to the police. In light of the fact that defendant was informed of the possible grounds for the motion through the State’s answer to discovery and police reports provided over six years prior to trial, we conclude that the trial court did not abuse its discretion by denying defendant’s untimely motion to suppress.

Defendant next argues that the State violated discovery rules by failing to include a list of rebuttal witnesses in its answer to discovery and that the violation mandates reversal and retrial. We disagree.

Supreme Court Rule 412 creates an affirmative duty on the part of the State to disclose its rebuttal witnesses to the accused. (107 Ill. 2d R. 412(a)(vi).) This duty to disclose attaches once the State has formed the intent to call the witness. (People v. Hunter (1984), 124 Ill. App. 3d 516, 536, 464 N.E.2d 659, 676.) Where a discovery violation occurs, defendant must demonstrate both that he preserved the issue for review by objecting at trial and that he was prejudiced by the violation. (People v. Curtis (1986), 141 Ill. App. 3d 827, 832, 491 N.E.2d 134, 138.) Further, exclusion of the evidence is a last resort, required only where a recess or continuance would be ineffective, and failure to seek a continuance waives the claim of error on appeal. 141 Ill. App. 3d at 833, 491 N.E.2d at 138.

In the present case, defendant did not make a request for a continuance or demonstrate that he was prejudiced by the testimony of the State’s rebuttal witnesses. In addition, two of the State’s rebuttal witnesses also testified in the case in chief and were listed in the answer to discovery. Moreover, it appears that defense counsel conducted a thorough cross-examination of the rebuttal witnesses. Under these circumstances, defendant was not prejudiced by the alleged nondisclosure of the State’s rebuttal witnesses, and the trial court did not abuse its discretion by failing to exclude their testimony.

Defendant next argues that the State violated discovery rules by failing to provide him with the substance of his oral statement and a list of the witnesses to the statement. Supreme Court Rule 412 creates an affirmative duty on the part of the State to disclose “the substance of any oral statements made by the accused *** and a list of witnesses to the making *** of such statements.” (107 Ill. 2d R. 412(a)(ii).) The purpose of the discovery rule is to provide the defense protection against surprise and unfairness, and to give defendant an opportunity to investigate the circumstances surrounding the making of a statement. (People v. Birge (1985), 137 Ill. App. 3d 781, 787, 485 N.E.2d 37, 43.) Noncompliance with the rules of discovery will not be reversible error absent a showing of prejudice. People v. Scheidt (1986), 142 Ill. App. 3d 844, 847, 492 N.E.2d 248, 251.

In the present case, the record reveals that the defendant was notified of the substance of his statement through the State’s answer to discovery and the police reports. The State also informed defendant during the trial of its intention to call Laverty to testify in rebuttal regarding the statement. Further, defendant was not prejudiced by any alleged failure to disclose witnesses to his statement where he knew that Laverty would be testifying at trial and had ample opportunity to interview him. We therefore conclude that the defendant’s claim that he was prejudiced is unfounded.

Defendant next argues that the pretrial identification procedure was unconstitutionally suggestive because he was the only person in the lineup with braids in his hair. Defendant further argues that the trial court erred in denying his motion to suppress the resulting lineup and in-court identifications. We disagree.

Evidence of pretrial identifications of an accused by a witness must be excluded at trial only where (1) the procedure was unnecessarily suggestive and (2) there was a substantial likelihood of misidentification. (People v. Sykes (1987), 161 Ill. App. 3d 623, 633, 515 N.E.2d 253, 260.) Defendant bears the burden of establishing that the pretrial confrontation was unduly suggestive, and courts look to the totality of the surrounding circumstances in reaching their conclusion. (161 Ill. App. 3d at 633, 515 N.E.2d at 260.) Further, the fact that a defendant is the only participant in the lineup with braided hair does not render it impermissibly suggestive where defendant is not forced to wear his hair in braids and there are no other significant physical or racial differences among the participants. People v. Trass (1985), 136 Ill. App. 3d 455, 463, 483 N.E.2d 567, 574.

Here, the record reveals that both Moore and Cranberry made positive identifications of defendant based on his physical characteristics. Moore told police that the offender was 5 feet 3 or 4 inches tall, thin looking and weighed about 120 to 130 pounds. Cranberry described the offender as shorter than the victim, with a mustache and short beard. These descriptions accurately reflect defendant’s actual physical characteristics on the day of the shooting. Further, because defendant had an opportunity to remove the braids from his hair and there were no significant physical or racial differences among the other participants in the lineup, it was not unconstitutionally suggestive. Therefore, we conclude that the trial court did not err in denying defendant’s motion to suppress the lineup and in-court identifications.

Defendant next argues that the jury verdict was against the manifest weight of the evidence and should be reversed. We disagree. A verdict is contrary to the manifest weight of the evidence only when the opposite conclusion is clearly apparent and the finding appears to be unreasonable, arbitrary and not based on the evidence. (People v. Rey (1985), 136 Ill. App. 3d 645, 650-51, 483 N.E.2d 982, 986.) In the present case, the evidence reveals that the jury’s verdict was based on the testimony of two eyewitnesses. In view of the testimony presented to the jury, no other conclusion is clearly apparent. Since is it clear that the jury’s verdict is neither unreasonable, arbitrary nor not based on the evidence, we conclude that the jury's verdict is not against the manifest weight of the evidence.

We have considered the other issues raised by defendant on appeal and find them to be without merit.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

FREEMAN, P.J., and McNAMARA, J., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.