author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KERMIT LEAKS, Defendant-Appellant.
    First District (2nd Division)
    No. 86—1947
    Opinion filed January 31, 1989.

      Christopher Cronson, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Paula M. Carstensen, and Nancy Nolan Colletti, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

After being charged with murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A — 2), defendant Kermit Leaks was tried by a jury, found guilty of the included offense of voluntary manslaughter (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2) and sentenced to a term of eight years’ imprisonment.

Defendant raises the following issues on appeal: (1) whether the trial court erred in admitting evidence of other crimes alleged to have been committed by him, (2) whether the trial court erred in instructing the jury concerning the proof of other-crimes evidence and for failing to admonish the jury of its limited admissibility at the time it was received at trial, (3) whether the prosecutor denied defendant his right to a fair trial by displaying a prior armed robbery file of defendant while questioning him on cross-examination, (4) whether the prosecutor denied defendant his right to a fair trial by attempting to bolster the credibility of a key prosecution witness, and (5) whether defendant was proved guilty of voluntary manslaughter beyond a reasonable doubt. The following are the facts of the case as contained in the record.

On October 20, 1985, in the City of Chicago, defendant shot Ellison Jordan, also known as Flynn, who died a short time later. He was thereafter charged with murder and armed violence.

Starla Whitmore testified at trial that at about 8:30 a.m. on October 20, 1985, she took a .45 caliber semi-automatic pistol that she had stolen from her sister’s house to Jordan’s residence for the purpose of selling it. When she arrived at his home, she gave the gun to Jordan, who took the clip out and handed it to her. She testified that after she took the six bullets out of the clip and counted them, she put them back into the clip and returned it to Jordan. He placed the clip in his pocket, put the gun in the back of his waistband, and put on a jacket which covered the gun.

Whitmore and Jordan then left Jordan’s home and walked across the street to his father’s house. While standing on the porch there, Whitmore noticed a small green car driving at a speed slower than that of the other cars. When no one answered at the door, Whitmore and Jordan proceeded down an alley toward Hoyne Avenue where they saw Kermit Leaks. Whitmore stated that Leaks had jumped out from behind a fence and shot twice. Jordan backed away, but Leaks went after him, shooting three or four more times. Jordan fell to the ground after the first two shots and did not pull the gun from his waistband until Leaks had finished shooting. Jordan then began to shoot at Leaks as Leaks was running away. Whitmore helped Jordan get up and walk through a vacant lot toward Washburn Avenue, where he collapsed.

The defendant’s version of the events of that day differed from WRitmore’s. He testified that he went over to see his girlfriend, Yolanda Stewart, and that as a result of two previous incidents in which he had been shot, he was frightened about entering the neighborhood. He therefore asked a friend for a gun, which he took with him. According to Leaks, as he was walking across the vacant lot to Yolanda’s house, he saw Jordan walking toward him. When Jordan saw him, he shot at and wounded Leaks. Leaks turned around, ran, and fell down, causing the gun to come out of his waistband. Leaks then shot at Jordan, who continued to shoot back at him. Leaks stated that he threw the gun away because he was afraid the police would shoot him if they saw a gun in his hands. Leaks was taken to the hospital where he was interviewed by the police.

Leaks further testified about an incident which occurred in 1984 when he was shot by Jordan and required hospitalization. He also stated that he had previously been told of threats against his life by Jordan.

Police officer James Petrauskus testified that when he arrived on the scene, he saw Whitmore take the gun out of Jordan’s hand and try to hide it in her waistband. The officer took the gun from her and found it was empty. Petrauskus observed two bullet wounds in each thigh and two in the chest area and called for medical assistance for Jordan.

Officer James Stingily arrived on Washburn Avenue, one block north of where Petrauskus was, heard multiple gunshots, and observed Leaks running around the corner into Roosevelt Road, and pitching a weapon over a fence into some shrubbery. After Leaks was taken into custody, Stingily recovered the weapon and discovered that all six bullets had been fired. Leaks was then taken to Cook County Hospital.

Detective Golab testified that when he went to the hospital to talk to Jordan, Jordan told him, “Kermit shot me.” Golab further testified that in December of 1984 he investigated an incident involving the shooting of Leaks by Jordan. Golab related that Leaks at that time stated that he had robbed Jordan the day before Jordan shot him, that he did not wish to prosecute Jordan, and that “[h]e was going to take care of it himself.” On cross-examination Golab said that he did not include this last statement in his report because, since Leaks did not want to prosecute, it was not relevant.

In addition to the defendant’s testimony, the defense called Officer Jim Sanders, who testified that he was the evidence technician who processed the scene of the occurrence, and that he found five .45 caliber shell casings scattered over a four- to five-foot area in the lot. Another defense witness, Officer Richard Chenow, employed in the firearms identification unit of the Chicago police department, testified that a .45 caliber automatic weapon would not be ready to fire upon putting a clip into it unless there was already a round in the chamber. Chenow further stated that it would be difficult to load and fire such a gun if one were lying prone on the ground while propped up on one hand.

Yolanda Stewart, who was seven months pregnant with Leaks’ child at the time of the shooting, testified that she lived two doors from the vacant lot where the shooting took place. The night before the shooting Leaks had called her to arrange to stop over the next day. Stewart also stated that Tim Leaks, defendant’s brother, owned a green Nova at the time of the shooting.

Following closing arguments, jury instructions, and deliberations, the jury found the defendant guilty of voluntary manslaughter.

I

The defendant first argues that he was prejudiced at trial by the admission of evidence of prior crimes. The evidence complained of consisted of the testimony, as previously noted, of Detective Golab that Leaks had robbed Jordan on November 25, 1984, that on the following day Jordan shot Leaks, and that Leaks refused to prosecute Jordan for the shooting and said he would “take care of it himself.” Prior to the commencement of the trial, defense counsel made a motion in limine to preclude the admission of any evidence as to prior crimes except as to the robbery, but the motion was denied.

Defendant contends that the court was confused concerning the admissibility of other crimes and points to several statements by the judge which he claims support his contention. At the hearing held on Leaks’ motion in limine the court said in pertinent part:

“Okay. I am going to allow it to come in. Proof of motive, the motive here, I believe, is gang retaliation because of what happened on the prior occasion. It shows an ongoing escalation of a situation. This is further shown when the defendant refused to prosecute when he is the victim. He is going to settle it his way.
The defendant is going to claim self-defense. The jury is the trier of the facts. They should have all the evidence before them as to what defendant’s actual intent was.
*** I think it also goes in relation to plan. *** I also believe as I indicated before, it goes in to show identity, to show the absence of mistake in identification. *** I believe that it goes in to show who the aggressor was.”

Defendant emphasizes that the judge mentioned gang retaliation despite the fact that neither side had suggested this was a gang-related incident. We note, however, that the reference to a gang was made only in the colloquy held at the hearing on defendant’s motion in limine, which took place, of course, out of the hearing and presence of the jury; accordingly, we fail to perceive that defendant could have been prejudiced thereby. Moreover, although the judge gave several reasons for allowing the evidence of other crimes to be admitted, it does not appear at all to have been done as a result of his being confused. The defendant wanted to use the shooting incident of November 1984 to show his own state of mind, but at the same time he insisted upon excluding any mention of the alleged robbery of the day before. As the judge reasoned:

“I don’t see how the defendant could commit a crime and state [sic] and start a chain of events and use a portion of that chain of events as a sword and prevent the State from using the start of that chain of events as a shield. That would be patently unfair.
Here also the two crimes of November 26th, 1984 and November 25th, 1984 are intermittently related to each other. When the defendant talked about one, he talks about the other. When he refuses to prosecute on the November 26th incident, he gives as a reason the November 25th incident. I believe it goes in.”

The decision whether to admit other-crimes evidence is within the sound discretion of the trial court. (People v. Lieberman (1982), 107 Ill. App. 3d 949, 955, 438 N.E.2d 516, appeal denied (1982), 91 Ill. 2d 576.) As our supreme court stated in People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821, cert, denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136,104 S. Ct. 145:

“Generally, evidence of other crimes is inadmissible if relevant merely to establish the defendant’s propensity to commit crime. [Citation.] Evidence of the commission of other crimes is admissible, however, when such evidence is relevant to prove modus operandi, intent, identity, motive, or absence of mistake. [Citations.] In fact, this court has held that evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime.” (Emphasis added.) 98 Ill. 2d at 182.

And this court stated in People v. Wright (1986), 140 Ill. App. 3d 576, 579, 488 N.E.2d 1344:

“Evidence of other crimes is admissible where relevant to establish any fact material to the prosecution. [Citation.] Proof of motive is always relevant in a criminal prosecution to show that defendant committed the offense with which he is charged [citation], and evidence which goes to show motive is admissible even though it may reveal another offense. [Citation.] Relevant, admissible evidence need not be excluded simply because it tends to prejudice the accused. [Citation.] The trial court must weigh the relevance of the evidence against its prejudicial effect to the defendant [citation], and its determination of whether evidence is relevant and admissible will not be reversed absent a clear abuse of discretion.” 140 Ill. App. 3d at 579.

Nonetheless, defendant maintains, citing People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59, that:

“Evidence of another crime, however, may be used only when the other crime has some threshold similarity to the crime charged. It is this similarity which increases the relevance of the evidence and ensures that it is not being used solely to establish the defendant’s criminal propensities.” 98 Ill. 2d at 310.

In Bartall the defendant was found guilty of murder and armed violence as a result of an incident in which he fired two shots from his automobile and killed a young woman who was standing in an adjacent parking lot. The appellate court reversed the defendant’s conviction on the ground that the trial court erred in admitting evidence of another shooting incident which occurred nearby about 20 hours after the homicide. The supreme court, however, held the admission of the evidence was proper to show the defendant’s intent in the prior shooting. (98 Ill. 2d at 309.) The principal issue in Bartall was whether the defendant shot the victim “with the mental state required for murder or whether he shot her as a result of mere inadvertence or recklessness.” (98 Ill. 2d at 310.) The court found “striking similarities” between the second shooting and the prior shooting which resulted in the homicide. In both incidents the defendant fired the same handgun out of the window of his car as he drove at night in the same direction on the same stretch of road. Both incidents were apparently unprovoked, and on both occasions the defendant was accompanied by his girlfriend. 98 Ill. 2d at 310-11.

As the court stated:

“We believe that the Preze shooting incident was sufficiently similar to the Quinn homicide to make it admissible on the issue of intent. The evidence of the Preze shooting showed more than the defendant’s general propensity to commit crime; it established that on at least two occasions within 24 hours the defendant had acted as a roving, mobile sniper. Whereas the Quinn homicide, standing alone, might have some ambiguity about it, the two incidents, taken together, increase the certainty that the defendant deliberately acted in this fashion. [Citation.] This evidence, taken with other evidence in the case, could provide the basis for an inference that the defendant had the criminal intent required for murder.” 98 Ill. 2d at 311-12.

Defendant, in his reliance upon Bartall, maintains that no similarity was demonstrated between his prior robbery of Jordan and the shooting in this case. His theory, however, must yield to the obdurate fact that Bartall is a case in which other-crimes evidence was used approvingly to show modus operandi. (Bartall, 98 Ill. 2d at 314; McKibbins, 96 Ill. 2d at 186; E. Cleary & M. Graham, Handbook of Illinois Evidence §404.5, at 162 (4th ed. 1984).) It goes without saying that in the instant case, we are not faced with the use of other-crimes evidence in a modus operandi setting. We have, instead, an attempt on defendant’s part to strip away from the events of November 25-26, 1984, his robbery of Jordan, leaving in stark relief only Jordan’s shooting of Leaks, an attempt the trial court did not permit to succeed, for the two incidents are, as the judge explained, inseparably linked. We agree; the one goes with the other like the “flip-side” of a phonograph record — the defendant is not free to choose one side without having to take the other. Nor is the defendant entitled to any expectation that evidence of his robbery of the victim in this case should be excluded simply because it is detrimental to his cause. People v. Wright, 140 Ill. App. 3d at 579.

Clearly, evidence of his robbery of Jordan some months before Leaks fatally shot him was not admitted to establish defendant’s propensity to commit crime; on the contrary, it was admissible simply for the reason that it was relevant for purposes far removed from any attempt to show such a proclivity. The robbery which led to Jordan’s shooting of Leaks, the shooting itself, defendant’s refusal to prosecute Jordan, and Leaks’ statement to the police that he would “take care” of the matter himself form a seamless web of circumstances from which it is exceedingly reasonable to infer relevance to the issues (except that of identification, which we shall discuss below) with respect to which the trial judge admitted the evidence. As we have indicated above, our supreme court has held that evidence of other offenses is admissible if it is relevant for any purpose other than to show a propensity to commit crime. People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489; People v. Dewey (1969), 42 Ill. 2d 148, 157, 246 N.E.2d 232; see also People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821; People v. Bartall (1983), 98 Ill. 2d 294, 310, 312, 456 N.E.2d 59.

Consequently, we reject defendant’s further contention that the State did not need to rely upon proof of the prior robbery to support its case because the prosecution’s retaliation theory could have been established by referring solely to Jordan’s shooting of Leaks the prior year. But, the ongoing vendetta of the parties to the subject crime, leading ultimately to their shoot-out in a scene encountered only in movie westerns, leaves no doubt as to the relevance of both the robbery and Jordan’s retaliatory shooting of the defendant. The record is clear that the trial judge carefully weighed the relevance of the prior-crimes evidence against its prejudicial effect on the defendant and that he determined the evidence to be relevant and admissible. In light of all of the foregoing, we find no abuse of the judge’s discretion.

II

The defendant next argues that the trial court erred in instructing the jury concerning the proof of other-crimes evidence and for failing to admonish the jury of the limited purpose for which it was admitted at the time it was testified to at trial. Defendant contends here, as he does in part I of this opinion, supra, that the trial court was confused and took a “shotgun approach” when it ruled on the admissibility of the evidence regarding prior crimes, and that the judge enumerated “various and inconsistent” reasons for admitting the evidence in question. He further states that the jury instruction given by the court compounded this confusion.

The disputed instruction given by the trial judge, Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981), reads as follows:

“Evidence has been received that the defendant has been involved in an offense other than that charged in the indictment. This evidence has been received solely on the issue of the defendant’s identification, intent, motive and design. This evidence may be considered by you only for the limited purpose for which it was received.”

Defendant’s attorney objected to this instruction and asked that it be submitted in redacted fashion restricting it to motive only. After some discussion, the judge stated that he would include only intent and motive. However, the court later decided not to give the modified version but to give instead the original proposed instruction, which restored identification and design.

“Generally, the trial court has considerable discretion in determining the form in which an instruction shall be given. [Citation.] An instruction is justified if it is supported by some evidence in the record, and the trial court has discretion in deciding which issues have been raised by the evidence.” (Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 98, 476 N.E.2d 1378.)

Moreover, an exercise of the trial court’s discretion will not be disturbed on review unless it has been clearly abused. Clarkson v. Wright (1984), 121 Ill. App. 3d 230, 232, 459 N.E.2d 305.

Defendant contends that the jury in the instant case had no idea as to what evidence was being admitted for a limited purpose or even the precise purpose for which it was being received. Other-crimes evidence can be admitted when it aids in identifying the defendant. (See, e.g., People v. Houseton (1986), 141 Ill. App. 3d 987, 490 N.E.2d 1354; People v. Carter (1985), 132 Ill. App. 3d 523, 477 N.E.2d 1307; People v. Blakely (1978), 8 Ill. App. 3d 78, 289 N.E.2d 273.) But here no issue was ever raised over the fact that the defendant was the person shooting it out with Jordan; indeed, defendant took the stand and so testified. Accordingly, we are constrained to hold that the jury instruction objected to by the defendant was broader than permitted by our case law. (People v. Blakely, 8 Ill. App. 3d at 83.) At the same time, however, we are equally impelled to find such error to be harmless, not only because the evidence of defendant’s guilt was overwhelming, but also because the overbreadth of the instruction could not possibly have prejudiced defendant, for since identity was never contested, its inclusion was clearly redundant. We cannot agree, though, with defendant’s assertion that the trial judge erred by including intent and design. The record herein plainly shows that they were abundantly relevant. Moreover, it seems needless to say that in light of the evidence adduced in this case, both go as much to defendant’s state of mind as does motive, about which defendant obviously makes no complaint. In fact, in oral argument before this court, defendant’s attorney stated that he urged the trial judge in the instructions conference to redact the instruction to include motive or intent, but not both. We disagree; under the facts in this case, we find the one to be as relevant as the other.

Defendant also points out that the judge did not admonish the jury at the time the allegedly objectionable evidence was admitted as to its limited purpose. But defendant fails to acknowledge that he did not request that such an admonition be given. In the absence of defendant’s request for such an admonition, no affirmative duty rests on the court to admonish; thus, no error arises from its failure to do so. (People v. Smith (1960), 18 Ill. 2d 547, 553, 165 N.E.2d 333; People v. Allen (1971), 1 Ill. App. 3d 197, 272 N.E.2d 296.) The Smith case also involved a defendant’s complaint that evidence of two prior crimes was improperly admitted into evidence. There, the court held that the evidence was properly admitted to prove the element of intent, and that where such evidence is offered, no affirmative duty rests on the court to admonish or instruct the jury except in cases where the defendant affirmatively requests such an admonition. Here, inasmuch as defendant failed to request an admonition at the time the evidence was admitted, no error arose. The holding in Smith is in consonance with the discussion of the subject in McCormick: “The interest of an adversary is to be protected, not by an objection to its admission, but by a request at the time of the offer for an instruction that the jury is to consider the evidence only for the allowable purpose.” (McCormick, Evidence §59, at 151 (3d ed. 1984).) Moreover, the jury instruction given at the end of the case, which explained to the jury that the evidence was admitted only as to specified limited purposes, was sufficient to protect the defendant’s interests.

Defendant cites People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773, to support his contention that the jury instruction on other-crimes evidence was improper in the instant case. In Connors, where the defendant was charged with armed robbery, the court allowed evidence to be admitted concerning a second robbery, perpetrated earlier the same day as the crime for which he was tried. On appeal, defendant objected to the admission of the evidence and to the jury instruction which failed to limit the jury’s consideration of the other offense. This court stated:

“The jury instruction concerning such evidence, containing as it did all of the possible exceptions to the other crimes rule, magnified the error. It did not serve to limit the jury’s use of such evidence and failed to convey the proper emphasis of the instruction — that such prejudicial evidence was restricted in value.” 82 Ill. App. 3d at 319-20.

We do not share defendant’s reliance upon Connors. There, the defendant objected to the prosecutor’s reference in his opening statement to the defendant’s other crime. When the trial judge asked the assistant State’s Attorney upon what basis he sought to introduce the evidence, “[h]e responded that it was incident to the arrest and that it indicated a plan, propensity, or identification of the offender. The trial court then overruled the defense objection.” (82 Ill. App. 3d at 314.) Nevertheless, the defendant made several other objections to the testimony of a police officer relating to the other crime, two of which were sustained as constituting hearsay. However, the court ultimately permitted the officer to testify, over the defendant’s objection, that because of a radio message he had received, he recognized the vehicle used in the crime on trial as one that had been stolen earlier the same day.

On appeal, the State abandoned its argument that the testimony was admissible to show propensity, and chose instead to justify it mainly as indicating modus operandi. This court, however, rejected the State’s attempt “to show on appeal, although not arguing such below, enough similarities in the two crimes to invoke the modus operandi exception.” (82 Ill. App. 3d at 318.) This court also concluded that the State’s concept, also advanced for the first time on appeal, that the defendant’s plan or design to use the stolen auto as a getaway car had no support in the record. Moreover, it held that the identification evidence merely served to enhance the credibility of the State’s witness. “The details of the other crime and the absence of connecting facts which would bring it within one of the exceptions to the other crime rules made its introduction error.” 82 Ill. App. 3d at 319.

In addition, the Connors court carefully pointed out that “[e]ach of defendant’s contentions [admission of evidence of other crimes, the prosecution’s comments on inadmissible evidence, and his comments on defendant’s invoking of his right to remain silent], when examined apart from the others, may not constitute reversible error, but when considered in combination, each complicates and compounds the matter. [Citation.] Accordingly, when considered as a whole, we cannot say that such errors were harmless beyond a reasonable doubt or that they did not contribute to the conviction.” 82 Ill. App. 3d at 322.

We obviously have far from a Connors situation here. To further elaborate on the distinctions between this case and Connors would require us needlessly to reiterate all that we have already said in this part II on this issue and on the closely related one discussed in part I of this opinion. Merely to set forth the facts and the court’s discussion of them in Connors is to distinguish it from the case at hand. It suffices for us to say here that any evidence relating to Leaks’ robbery of Jordan is the necessary corollary of the evidence of Jordan’s shooting of Leaks — defendant cannot have it his way. Accordingly, we conclude once more that the evidence was properly admitted, and although the jury instruction was broader than necessary, it was harmless error beyond any reasonable doubt.

Ill

Defendant’s next contention is that the prosecutor denied him the right to a fair trial by improperly displaying, while questioning him on cross-examination, the file of a previous case in which defendant had been charged with armed robbery, a matter unrelated to Leaks’ robbery of Jordan, previously referred to herein. Defendant’s name and the charge were written on the front of the file in large letters. After the defendant had objected, a conference was held out of the presence and hearing of the jury, at which time defendant moved for a mistrial. Although the State maintained that the folder was face down and held in such a way that the jury could not have seen it, the judge expressed his displeasure with the prosecutor for having brought the file with its obvious lettering into court. Nevertheless, the court indicated that it would not grant a mistrial merely on the basis of the defendant’s observation of the file; instead, he offered to poll the jurors one at a time outside the presence of the remainder of the jury. The judge began with the juror who would have been most likely to see the folder, and the following colloquy was had:

“THE COURT: We just want to ask you a couple of questions. When the State’s Attorney was at the podium just now, did you see a file that he had?
MS. GUTIERREZ: Yes.
THE COURT: Did you see what was on the file?
MS. GUTIERREZ: I’m not sure, but I thought it said robbery.
THE COURT: Do you want to ask any questions, Mr. Cronson?
MR. CRONSON: Judge, I don’t know what I could ask her.
THE COURT: Mr. State’s Attorney?
MR. WILSON: Did you see the name on the file?
MS. GUTIERREZ: No.
MR. WILSON: Then you have no idea what that’s about?
MS. GUTIERREZ: No, all I saw was r-o-b.
MR. WILSON: That could even be somebody’s name, Robin, Robert?
MS. GUTIERREZ: I mean, that’s all I saw, and I just assumed it was robbery. That doesn’t mean I’m right.
THE COURT: Mr. Cronson?
MR. CRONSON: Judge, I don’t want — I’m afraid to ask any questions because — I don’t want to ask any questions about it.
THE COURT: Thank you very much.
Would you bring in the other juror that was sitting in the corner?
Miss Juror, when the State’s Attorney was standing at the podium, did you see the file that was in his hand?
JUROR: No.”

The judge offered to interrogate the other jurors, but defense counsel indicated that he did not care to continue the questioning since “we already know that one of the jurors saw something.” The court denied his motion for a mistrial.

We concur with the trial judge in his decision that this incident did not justify his declaring a mistrial, noting for the record, outside the presence of the jury, that there had been evidence of an alleged robbery already introduced with respect to the November 25 incident between Leaks and Jordan. The judge commented also that the juror closest to the State’s Attorney did not see the word “robbery,” and even if she had the juror would most likely have deduced the “robbery” to be that of November 25. In light of these facts, the improperly displayed file did not deny the defendant his right to a fair trial.

IV

Defendant further contends that he was deprived of a fair trial by the State’s attempt to bolster the credibility of a key prosecution witness in its direct examination of that witness and in its closing statement, in both of which the prosecution referred to Starla Whitmore’s prior consistent statement given to the police just after defendant had shot the victim. Defendant claims that the State thus created the inference that the investigating detective and the State’s Attorney believed Whitmore. It appears, however, that defendant is somewhat confused, for the record plainly shows that the prosecutor’s references were first made in his redirect examination of the witness and later in his closing statement. In any event, as the State correctly points out, this issue was waived for purposes of review because defendant failed to raise it in his post-trial motion for a new trial. As our supreme court has stated, “The general rule is that the failure by a defendant to raise an issue in the written motion constitutes a waiver and the issue cannot be urged as a ground for reversal on review.” (People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227.) And as this court has held, “We regard the failure to include alleged errors in the post-trial motion as a waiver of those issues even where objections were made at trial.” People v. Thomas (1983), 116 Ill. App. 3d 216, 221, 452 N.E.2d 77.

However, assuming, arguendo, that the issue has not been waived, the State maintains that no error resulted from the remarks complained of where the conduct was not improper and the trial court sustained defendant’s objections thereto. Defendant cites the testimony of Detective Godbold in which he stated that Whitmore told him who shot first, who was struck first, and who fell first. After the officer testified that he called the State’s Attorney upon hearing her story, the prosecutor asked him, “Why did you call the State’s Attorney?” and the witness answered, “Because in my interpretation there was basis enough.” Defense counsel objected and the objection was sustained.

The State points out that “[wjhere objections made to improper questions are sustained the improper comment cannot usually be made the basis of reversal.” (People v. Callaham (1978), 60 Ill. App. 3d 1020, 1026, 377 N.E.2d 171.) Defendant contends that this testimony and the State’s alluding to her prior consistent statement served to create the inference that the investigating detective and the State’s Attorney vouched for Whitmore’s credibility. Defendant cites People v. Smith (1985), 139 Ill. App. 3d 21, 486 N.E.2d 1347, as authority for the proposition that an improperly admitted out-of-court statement used to bolster the credibility of the witness is reversible error when the witness’ in-court testimony is crucial. However, the defendant overlooks that the Smith court also stated:

“Evidence of a statement made by a witness out of court but harmonizing with his testimony is inadmissible except where he is charged with the recent fabrication or his opponent raises an inference that he has a motive to testify falsely. ***
Illinois cases are not in precise agreement on what constitutes a charge of recent fabrication. Some courts have found that even a subtle suggestion of fabrication or improper influence will justify the admission of a prior consistent statement.” 139 Ill. App. 3d at 32.

The State maintains that the defense, in cross-examining Whitmore, insinuated that she was fabricating testimony, citing defense counsel’s statement to Whitmore as follows: “I spoke with you at the Illinois Youth Center in Warrenville *** and you told me that you didn’t have any idea what you were going to say until you get on this witness stand ***.” Moreover, during closing argument defense counsel followed with:

“What did you say? What did she tell me when I was out there in Warrenville? I went out there and talked to her, and one of the first questions I asked her was, ‘Can you tell me what your testimony is going to be when you come into the courtroom on this case.’ She was right on the money. She told me, T don’t have any idea what I’m going to say. I’ll figure that out when I get up there on the witness stand,’ and that was what she did. That’s exactly what she did.”

Since defense counsel’s cross-examination unmistakably charges the witness with recently fabricating her testimony, the State was within proper bounds to show that Whitmore had not done so in its redirect examination of Whitmore and in its remarking thereon in its closing statement. Smith, 139 Ill. App. 3d at 21.

V

The final issue raised by defendant was whether he was proved guilty of voluntary manslaughter beyond a reasonable doubt. The evidence against defendant at trial consisted primarily of the eyewitness testimony of Starla Whitmore. Defendant emphasizes Starla’s attempt to hide the gun from the police, that she testified for the State while she was in the custody of the Department of Corrections for aggravated battery of a police officer, her comment to the defense attorney that she didn’t know what she was going to say until she got on the witness stand, and discrepancies in her story involving the number of bullets in Jordan’s gun and the location of the gun clip. Defendant also stresses Officer Chenow’s observation that it would be difficult to operate Jordan’s gun with one hand as Whit-more described, and the testimony of the evidence technician who found shell casings dispersed over a four- to five-foot area as opposed to Whitmore’s testimony that Jordan did not move around while firing the gun.

We are thus presented with two contradictory versions of the same occurrence, as to which the jury had to determine whom to believe, Whitmore or Leaks. As our supreme court has stated:

“It is, of course, as we have repeatedly recognized, the jury’s responsibility to resolve factual disputes, assess the credibility of the witnesses, and determine the weight and sufficiency of the evidence [citation], and its judgment will not be reversed unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the guilt of defendant remains.” People v. Yates (1983), 98 Ill. 2d 502, 518-19, 456 N.E.2d 1396, cert, denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364, rehearing denied (1984), 467 U.S. 1268, 82 L. Ed. 2d 864,104 S. Ct. 3563.

And this court has explained, “[t]his is so because the jury, acting in its peculiar capacity as trier of fact, has ample opportunity to observe the demeanor of witnesses, assess their credibility and weigh the evidence.” People v. Callaham (1978), 60 Ill. App. 3d 1020, 1025, 377 N.E.2d 171.

In the case at bar the jury heard the evidence, weighed it, observed the demeanor of the witnesses, assessed their credibility, and chose not to believe defendant. The jury did not find defendant guilty of murder as he was charged, but they did find him guilty of voluntary manslaughter, which the supreme court has defined as follows:

“A person commits voluntary manslaughter if he kills an individual without Jawful justification under a sudden and intense passion resulting from serious provocation, or if he intentionally or knowingly kills an individual believing the circumstances justify or exonerate the killing, but his belief is unreasonable.” People v. Fausz (1983), 95 Ill. 2d 535, 539, 449 N.E.2d 78.

We find that the evidence presented to the trial court supports the jury’s verdict and that its judgment was neither so unsatisfactory nor improbable as to cause this court to reverse their decision.

Accordingly, for the reasons expressed, we affirm the judgment of the circuit court of Cook County.

Affirmed.

HARTMAN and BILANDIC, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFF BLAKE, Defendant-Appellant.
    First District (1st Division)
    No. 86—1168
    Opinion filed January 23, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Ronald P. Alwin, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Jean T. McGuire Quinn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Jeff Blake was accused of killing his mother, Mrs. Celia Blake, and Mr. Willie Lowe, and charged with two counts of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1) and two counts of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2). Blake was convicted of both murders and one count of armed robbery and sentenced to natural life imprisonment. Blake appeals the convictions, arguing that several evidentiary rulings were erroneous. For the reasons below, we affirm.

Mrs. Celia Blake owned and managed six apartment buildings and employed her son Jeff Blake, Frank Fortune, James Skinner, Milton Scott, and Willie Lowe. Blake and Fortune were close friends and used drugs together about four to five times a week. Blake usually paid for the drugs, using his pay, and sometimes borrowing from Celia.

In the morning of November 22, 1983, Blake asked his mother several times for money, which she refused, triggering angry arguments that were witnessed at various times by Fortune, Scott, Skinner, and Lowe. In the early morning a neighbor was present when Blake asked Celia for money and she refused. Later, while Blake, Celia and James Skinner were driving Blake’s children to school, Blake and Celia argued a second time. Skinner later testified that arguments about money between Blake and Celia were not uncommon.

At about 10:30 a.m., Celia and Blake, Fortune, Scott, Skinner and Lowe were assembled in the furnace room of the building at 6818 Normal, which Celia used as an office. After Celia gave the men their work assignments, Blake again asked for money and Celia again refused. When the argument began the others left. Fortune waited outside for Blake, who came out a few minutes later and, according to Fortune, said, “[S]he will regret that.”

Later in the morning, Skinner borrowed $20 from Celia, which he gave to Blake. Blake and Skinner then went to fix a faucet and collect rent. After the faucet was fixed, Skinner, Scott and Lowe were present in the furnace room when Celia again refused Blake’s request for $20. Skinner gave Celia $300 in rent money he had collected.

In the early afternoon, Celia sent Skinner to repair the refrigerator in the apartment of Evelyn Williams. Blake went to find Williams to let them into her apartment, and Fortune, Scott and Skinner went to Williams’ apartment. Williams arrived and let Skinner and Scott into the apartment while Fortune sat on the steps smoking a cigarette. Blake was not present.

While Fortune was on the steps, Lowe arrived, saying that Blake had sent him because Scott wanted him to help with the refrigerator. When Lowe learned that Scott did not need him, he became angry and left. Fortune then went to the lobby of the building to sit in a chair, where he saw Lowe go into the furnace room and heard him talking to Celia. Presently Lowe came out of the furnace room and went into the laundry room across the hall.

At that point, Blake entered the lobby and told Fortune he was going to talk to his mother about how long they would need to work that day. Fortune started to return to Williams’ apartment, and as he left the lobby, Lowe came out of the laundry room and went back into the furnace room. Fortune returned to Williams’ apartment, where he talked with Skinner, Scott, and Williams. They were shortly joined by Blake, and soon after, Williams let the men out and went to see her sister, who was waiting outside in a car to give Williams a Thanksgiving turkey. Blake and Fortune decided to go to Fortune’s place to get something to eat. On the way out, Blake and Fortune passed Williams, who was returning to her apartment.

As Blake and Fortune walked, Blake told Fortune that he had received $40 from his mother and suggested that they use the money to buy drugs. They returned to the building at 6818 Normal and got the car. The two then bought heroin and cocaine for $60 and drove to Fortune’s apartment at 6800 Normal. In the car on the way to Fortune’s, Blake gave some money to Fortune.

In the meanwhile, Skinner and Scott had returned to the furnace room, where they found the bodies of Celia and Lowe. Skinner called the police. The police arrived shortly before 3 p.m. and found that Celia and Lowe had been beaten with a crowbar that was found behind the furnace. Celia died at the scene; Lowe died later in the hospital. Skinner identified the victims for the police and provided descriptions of Fortune and Blake as persons who had been at the building earlier. At about 3:30 p.m., Blake identified himself to the police and said that he had heard something had happened to his mother. The police observed what appeared to be fresh blood on Blake’s jacket and boot and arrested him. Fortune was also taken into custody.

Fortune was interrogated immediately and remained in custody until after he testified before a grand jury on the morning of November 23. Blake was not interrogated until about 9 p.m. Blake was indicted and charged with two counts each of murder and armed robbery.

Prior to trial, Blake moved to quash his arrest and suppress evidence of his interrogation. Blake contended that the arrest had been made without a warrant and without probable cause, and that the interrogation had taken place without a proper waiver of Blake’s Miranda rights. At the hearing on the motion, Detective Craig Cegieski, who had been assigned to investigate the murders, testified that Blake had appeared calm and alert during all interrogations and had given several contradictory but exculpatory versions of the events of November 22. Blake, who testified at the hearing but not at trial, stated that the police intimidated him, and that he had been under the influence of drugs throughout the interrogations, and that the different versions of events was due to disorientation caused by the drugs. Blake’s motion were denied.

At trial, Skinner, Scott, Williams, and Fortune testified to the events of November 22. Fortune further testified that a few weeks before the murders, he had found Blake in one of Celia’s buildings, dazed and bloodied. Blake told Fortune that he had been mugged by an intruder. Blake had not reported the mugging to police. Fortune testified that the blood on Blake’s jacket had come from that incident and had been on Blake’s jacket since.

Fortune further testified that when he and Blake had left the building on November 22 to buy drugs, Blake drove away quickly, and that at that time, Blake seemed to be in a trance, mumbling incoherent words like “will” or “kill” or “hit.” Over defense counsel’s objection, Fortune admitted that he had testified to the grand jury that Jeff had said, “[Ljet’s go get a hit [buy drugs],” and “I killed them both,” and “I hit them both four times.”

Fortune further admitted that he had told the grand jury that when Blake later gave him the money, Blake had stopped the car and counted out $95. During the investigation, police found $95 in a bag in Fortune’s apartment. Fortune further testified that he had been mistreated by the police during questioning, that the police had threatened him, handcuffed him to a wall, slapped him, and kicked his chair. Fortune stated that he implicated Blake when testifying to the grand jury because he thought he was in custody. Objections by the State were sustained when defense counsel attempted to ask whether Fortune had lied to the grand jury and whether he had been instructed by police to tell the grand jury what the police wanted him to say.

James Skinner testified to the events of November 22, and stated that while driving the children to school, he had not noticed any blood on Blake’s jacket. Proceeding outside the presence of the jury, defense counsel recalled an interview between himself and Skinner with no others present, and asked Skinner whether he had told counsel that he had noticed the blood. Skinner denied making such a statement. Defense counsel was not allowed to impeach Skinner in the presence of the jury, and the trial court denied counsel’s motion to withdraw from the case and testify on Blake’s behalf. Skinner also testified that when Blake had arrived in Williams’ apartment, he was acting normally and nothing seemed unusual. Milton Scott also testified to the events of November 22.

Evelyn Williams testified that at the time she was returning from meeting her sister and had passed Blake and Fortune in the lobby, she noticed that the door to the furnace room was closed, which seemed unusual because the door was always open when Celia was present.

Detective Cegieski testified that when he met Blake at the scene, the blood on Blake’s jacket appeared to be fresh. Cegieski also testified to the content of the interrogations of Fortune and Blake. Cegieski testified that Fortune told police that Blake had told him that he had killed Celia and Willie Lowe. Cegieski further testified that the police had done nothing to injure or intimidate Fortune during the interrogation, and over defense counsel’s hearsay objection, related the contents of Fortune’s statements to the police. Cegieski also related the different versions of events that Blake gave in interrogation.

Lab tests showed that the blood on Blake’s jacket was type A, which matched the blood of Willie Lowe. The blood on Blake’s boots was type 0, which matched the blood of Celia Blake. Types A and 0 blood were found on the crowbar, but no fingerprints were taken from the crowbar.

Blake was found guilty of the murders of Celia Blake and Willie Lowe, and guilty of the armed robbery of Celia. Blake was acquitted of the armed robbery of Lowe. Blake was convicted, and after a death penalty hearing, sentenced to concurrent natural life terms in prison and one concurrent 30-year sentence.

Blake appeals several evidentiary rulings by the trial court and the denial of a motion to quash arrest and suppress evidence. All the challenged rulings rested within the discretion of the trial court, however, and an examination of the record shows that in no case were the trial court’s rulings clearly erroneous.

Blake first argues that the trial court erred in restricting the cross-examination of Frank Fortune. Defense counsel asked Fortune whether he had lied to the grand jury, whether the police had told Fortune what would happen to him after he testified, whether the police told Fortune what to say to the grand jury, and whether Fortune had been charged and bound over to the court before he was released from police custody. Objection to each question was sustained. Blake argues that the questions were necessary to establish that Fortune had motive to lie to the grand jury, a proper inquiry for cross-examination. See People v. Norwood (1973), 54 Ill. 2d 253, 296 N.E.2d 852.

The record reveals no grounds for the objections, but supports the State’s argument that the question as to whether Fortune lied to the grand jury was repetitive and that no proper foundation was laid for the other questions. Further, any error that arose from sustaining the objections was harmless. Fortune testified that the police handcuffed him, threatened to charge him with murder if he did not talk, slapped him, and kicked his chair. Fortune also testified that when he went to the grand jury, he had been told to “stick to what was on the police report,” and that because he was in custody, he implicated Blake. Fortune further testified that the police had made him no promises and that he had been released after testifying to the grand jury. Thus, although defense counsel was not allowed to ask specific questions, the record was sufficient to allow the jury to determine Fortune’s credibility as a witness and for counsel to argue his theories to the jury. See People v. Shinkle (1987), 160 Ill. App. 3d 1043, 1056, 513 N.E.2d 1072.

The trial court also sustained objections to questions whether Fortune was suffering pain from withdrawal at the time of the grand jury, or whether the police gave him anything to alleviate his discomfort, or whether, at the time of trial, Fortune was still a drug user. Blake contends that these questions served to impeach the credibility of Fortune’s grand jury testimony: if Fortune was not still using drugs, his trial testimony would have been made more credible, and his grand jury testimony, made when he used drugs, less credible. See People v. Lewis (1962), 25 Ill. 2d 396, 399, 185 N.E.2d 168; People v. Strother (1972), 53 Ill. 2d 95, 290 N.E.2d 201.

The consideration on appeal of questions concerning Fortune’s drug use was waived, however, because there was no offer of proof that Fortune no longer used drugs. (People v. Montgomery (1977), 51 Ill. App. 3d 324, 331, 366 N.E.2d 623.) Moreover, in the cases cited by Blake, the witness’ drug use at the time of trial was a factor impeaching the credibility of the witness’ testimony at trial. Here, however, Blake was not attempting to impeach Fortune’s trial testimony. Rather, Blake was attempting to discredit Fortune’s prior statements to the grand jury by showing that Fortune was not presently a drug user.

Finally, objections were sustained to questions whether Fortune dripped blood on Blake’s boot when they injected drugs and of Fortune’s blood type. Blake argues that answers to these questions might have explained the blood on Blake’s boot. The objections to questions concerning the blood on the boot and Fortune’s blood type were properly sustained because the questions were beyond the scope of direct examination.

Blake contends that the above objections were cumulatively prejudicial because the remainder of the evidence was circumstantial, and that the conviction was improperly predicated on Fortune’s prior statement. (See People v. Paradise (1964), 30 Ill. 2d 381, 384, 196 N.E.2d 689.) The State responds that any errors were harmless due to the overwhelming evidence of Blake’s guilt: several witnesses testified to Blake’s demands for money from his mother and her refusals on November 22; Frank Fortune testified he saw Blake go into the furnace room shortly before the murder; Blake had approximately $110 when he and Fortune left in the car; Fortune stated that Blake had told him he had hit both victims four times; Blake had blood on his jacket and the blood on his boot was the same type as Willie Lowe’s; and Blake made several inconsistent exculpatory statements to the police. Although the evidence cited by the State was circumstantial, Blake’s conviction was not predicated on Fortune’s prior statement alone, and it is clear that defense counsel’s cross-examination was not unduly restricted.

In summary, Blake argues that the trial court improperly restricted the cross-examination of Frank Fortune, but the objections to specific questions did not constitute a blanket restriction. The trial court was within its discretion to limit cross-examination (see People v. Dowdy (1986), 140 Ill. App. 3d 631, 635, 458 N.E.2d 1326), and, assuming error, Blake was not prejudiced because the record established a sufficient basis for the jury to determine the credibility of Frank Fortune’s testimony both at trial and before the grand jury, and for defense counsel to present his theories of the case to the jury. The trial court’s rulings were neither erroneous nor prejudicial.

Blake’s second principal argument is that the trial court erroneously restricted the cross-examination of James Skinner and Milton Scott. Defense counsel asked Scott whether the back door of the building at 6818 Normal could be entered with a screwdriver, and asked Skinner whether the lock on the back door of the same building had ever been broken. The trial court sustained general objections to both questions. Blake argues that the questions supported the theory that an intruder murdered the victims.

On direct examination, both Skinner and Scott testified only to the events of November 22, 1983. Neither testified to seeing or hearing an intruder, or to the security of the back door. The questions concerning the security of the back door, therefore, were at best tangential. Cross-examination is limited to those matters that explain, qualify, modify, or discredit the direct examination, and the latitude in cross-examination rests within the discretion of the trial court. (People v. Hosty (1986), 146 Ill. App. 3d 876, 882-83, 497 N.E.2d 334, appeal denied (1986), 113 Ill. 2d 564.) Although no specific grounds were offered for the objection, the record shows that the questions were beyond the scope of direct examination; the trial court did not abuse its discretion in sustaining the objections.

Blake also argues that the trial court erred by now allowing defense counsel to impeach Skinner’s trial testimony that he did not recall seeing blood on Blake’s jacket on the morning of November 22. But Skinner denied telling defense counsel, during a private interview, that he had seen the blood. Defense counsel was not allowed to impeach Skinner with the prior statement in the presence of the jury. Defense counsel moved to withdraw from the case and testify on Blake’s behalf, pursuant to the Illinois Code of Professional Responsibility, Canon 5, DR 5 — 102 (107 Ill. 2d R. 5 — 102). The motion was denied.

Where it is obvious that a lawyer ought to be called as a witness on behalf of his client, he shall withdraw from the case and not continue representation. (107 Ill. 2d R. 5 — 102.) The trial court, however, has broad discretion to refuse to permit attorneys to testify. (In re Marriage of Lee (1985), 135 Ill. App. 3d 509, 481 N.E.2d 1045; Serpico v. Urso (1984), 127 Ill. App. 3d 667, 469 N.E.2d 355.) Here, the need for counsel to testify could have been avoided had counsel interviewed the prosecution’s witness with others present. After trial commenced, withdrawal would have imposed substantial hardship on the defendant and wasted judicial resources. The trial court acted within its discretion in refusing defense counsel’s motion to withdraw.

Blake next argues that the admission of Frank Fortune’s grand jury testimony under section 115.10 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115.10 — 1) was erroneous. Blake contends that section 115.10 — 1, which allows substantive use of prior inconsistent statements, violates the separation of powers doctrine because the authority for promulgating procedural rules is vested in the judiciary, and not the legislature. This court need not address Blake’s constitutional argument, however, because precisely the same argument was rejected in People v. Orange (1988), 121 Ill. 2d 364, 381, 521 N.E.2d 69, which upheld the constitutionality of section 115.10 — 1. A supreme court decision is the law of the State, and it is binding on the appellate court. (Clark Oil & Refining Corp. v. Johnson (1987), 154 Ill. App. 3d 773, 780, 506 N.E.2d 1362, appeal denied (1987), 116 Ill. 2d 549.) The admission of Fortune’s grand jury testimony was proper.

Blake next argues that the trial court erred in permitting Detective Cegieski to testify to statements made to the police by Frank Fortune because the contents of the interviews constituted inadmissible hearsay and were offered to impeach without proper foundation. Blake argues that the testimony lacked proper foundation because Fortune had not been questioned about the time, place, or persons involved in the interviews. (People v. Powell (1973), 53 Ill. 2d 465, 473, 292 N.E.2d 409.) The State responds that the testimony of Detective Cegieski was not offered to impeach Fortune but rather to explain the circumstances surrounding the police interrogation of Fortune: to show that Fortune was not, as he testified, coerced, but rather cooperated with the police and passed up the opportunity to exculpate Blake. The contents of the interview were, the State contends, rebuttal of allegations of police coercion. The State also contends that even if the contents of the interviews were admitted in error, the error was harmless given overwhelming evidence of guilt, citing the evidence listed above.

In the instant case, there appears to be but slight difference between impeachment, that Fortune was not a credible witness, and rebuttal, that Fortune was not, as he testified, coerced to incriminate Blake. However, if hearsay evidence is offered for some reason other than to adduce the truth of the matter asserted, it is admissible. (People v. Albanese (1984), 102 Ill. 2d 54, 70, 464 N.E.2d 206, cert, denied (1984), 469 U.S. 892, 83 L. Ed. 2d 205, 105 S. Ct. 268.) The admission of the contents of the police interviews of Frank Fortune was therefore proper.

Blake next argues that the trial court erred in denying a motion to suppress his custody statements because he was under the influence of drugs while in custody and incapable of knowingly and intelligently waiving his Miranda rights. Blake asserts that he had used heroin twice on November 22, once in the morning and once shortly before he was arrested. In the hearing on the motion, Blake testified to feeling the effects of the drugs and gave conflicting accounts of the events of November 22, which he argues was the result of a mind fogged by drugs. The State responds that the circumstances indicate that Blake’s statements were admissible because they were voluntary and not induced by the drugs. See People v. Madden (1986), 148 Ill. App. 3d 988, 501 N.E.2d 1297, appeal denied (1987), 113 Ill. 2d 581.

Taking into account that the only evidence concerning Blake’s condition during the interviews came from the police officers, the totality of circumstances indicates that Blake was alert and effectively waived his rights. Approximately six hours elapsed between . Blake’s arrest at about 3:30 p.m., and his interrogation, beginning at about 9 p.m. Blake was read his rights when he was arrested and interrogated three times after 9 p.m. Each time interrogation began, Blake was reminded that his rights remained in effect. Police testified that during questioning, Blake appeared alert, calm, and responsive, and this testimony is rebutted by no evidence other than Blake’s testimony in the suppression hearing. Blake read, corrected, and signed the statement taken by the police. Blake also made several contradictory but exculpatory statements concerning the events of November 22. Some of the versions were so improbable that they were conceded as untrue. But the versions were detailed, adding to the perception that Blake was not influenced by drugs when he was interrogated. The Statements made by Blake while in police custody were made lucidly and voluntarily. The motion to suppress was properly denied.

Blake argues, finally, that the trial court erred in denying his motion to quash his arrest because the police arrested him without probable cause. When police arrived at 6818 Normal, they determined that the victims had been beaten with a crowbar and that the scene of the crime was quite bloody. Blake had been described to police as someone who had been in the building earlier in the day. Blake appeared before the victims had been removed, matching the description given, and with what police perceived as fresh blood on his jacket.

Blake contends that matching the description and having blood on his jacket was not sufficient to establish probable cause, citing People v. Montgomery (1986), 112 Ill. 2d 517, 494 N.E.2d 475, cert, denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1329. But given the circumstances, the proximity to the crime, the apparently short time frame between the commission of the crime and Blake’s arrest, and the fact that the police believed the bloodstains on the jacket to be fresh, the finding of probable cause was not manifestly erroneous. Thus the motion to quash was properly denied.

In conclusion, four of the six issues raised by Blake attack general objections that were sustained by the trial court. The remaining issues attack the trial court’s denial of the motion to quash and suppress. With respect to the evidentiary rulings, the primary difficulty with review is that no specific grounds for the objections were stated. A fair reading of the record, however, shows sufficient bases to sustain the objections, with neither error nor prejudice to Blake. With respect to the denial of the motions to quash and suppress, it is clear that the police acted with probable cause when they arrested Blake and that the statements Blake made while in custody were made voluntarily and with a knowing and intelligent waiver of rights. The conviction and sentence of Jeff Blake are therefore affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


text:
    HALLMARK INSURANCE COMPANY, as Subrogee of Exchange National Bank, et al., Plaintiffs-Appellants, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
    First District (2nd Division)
    No. 87—2512
    Opinion filed January 31, 1989.

      Johnson, Cusack & Bell, Ltd., of Chicago (Paul J. Wisner and Steven I. Rapaport, of counsel), for appellants.
    Joyce A. Hughes, of Chicago Transit Authority, and William G. Clark, Jr., & Associates, Ltd., both of Chicago (William G. Clark, Jr., and llene Davidson Johnson, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs seek to recover property damages they sustained when the driver of a stolen Chicago Transit Authority bus lost control of the vehicle and struck their building. They appeal from the trial court’s granting of summary judgment in favor of defendant.

Plaintiffs’ second amended complaint contains two counts of negligence against the CTA, the first based on a violation of the City of Chicago’s municipal code and the second on common law negligence. Plaintiffs allege that on January 12, 1982, an unnamed individual took unauthorized control of a CTA bus which was located in a bus bam owned and operated by defendant, and, after removing the bus from the property, drove it into a budding owned by plaintiffs, causing damage thereto. Plaintiffs further allege that defendant had left the bus unattended, without first stopping the engine, locking the ignition and removing the key.

Choosing not to file an answer, defendant moved for summary judgment instead, attaching a stipulation between the parties that defendant’s bus was removed from its property without the permission, authorization, consent or knowledge of defendant. In response, plaintiffs argued that they had sufficiently alleged special circumstances to put in issue that defendant knew or should have known of a great likelihood that the bus would be stolen, thus raising a genuine issue of material fact. Following a hearing the trial court dismissed plaintiffs’ cause with prejudice, stating:

“But, counsel, these allegations are rather conclusory. There are no facts to support this allegation, certainly not in your amended second complaint or, indeed, in your response to the motion for summary judgment.
* * *
I don’t see the allegation of special circumstances here.”

Plaintiff then filed a motion for rehearing and reconsideration, to which it attached as an exhibit a document previously produced by defendant: a study of bus thefts from defendant’s property. After questioning plaintiffs’ counsel on why this document was not furnished to the court previously, the trial judge denied their motion. Plaintiffs now appeal.

Opinion

We first note that defendant brought a motion for summary judgment in order to challenge the legal sufficiency of plaintiffs’ complaint. It seems needless to point out that this is not the proper procedure, for our supreme court has stated:

“To combine an inquiry into whether a pleading is sufficient to state a cause of action with an examination which almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried is likely to confuse both the parties and the court. *** We therefore expressly disapprove the procedure followed in the trial court.” (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312 N.E.2d 605.)

Yet, here, although defendant argued that there was no genuine issue of material fact, the complaint, the motion for summary judgment, the response thereto and a stipulation were the only documents filed with the trial judge, and her ruling was based solely on the insufficiency of the allegations of plaintiffs’ complaint. The more appropriate motion to have brought in a case such as the one at bar would have been one to strike or dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615); however, because the parties presented it and the judge decided it at the trial level as a motion for summary judgment, that is the motion we shall address on appeal.

Plaintiffs contend that there is a question of fact as to whether defendant is liable for common law negligence. The liability of owners of vehicles which are stolen by a third party has been discussed in a number of cases. Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74; Hensler v. Renn (1988), 166 Ill. App. 3d 819, 520 N.E.2d 1110; Ruyle v. Reynolds (1976), 43 Ill. App. 3d 905, 357 N.E.2d 804; Harper v. Epstein (1974), 16 Ill. App. 3d 771, 306 N.E.2d 690; Lorang v. Heinz (1969), 108 Ill. App. 2d 451, 248 N.E.2d 785.

Most recently, in Hensler, the trial court granted defendant’s summary judgment motion in an action for damages for the personal injury and property damage plaintiff sustained when her car was struck by defendant’s van. Plaintiff alleged that defendant was negligent in leaving his van in a store parking lot unlocked and unattended with the keys in the ignition. The court noted that the owner of a stolen vehicle is not liable for common law negligence absent “ ‘special circumstances *** which would have put the defendant on notice that a theft was likely to be perpetrated’ ” (Hensler, 166 Ill. App. 3d at 822, quoting Harper v. Epstein (1974), 16 Ill. App. 3d 771, 774, 306 N.E.2d 690), and held:

“An allegation that a particular neighborhood is a high crime area might be a basis for imposing upon a vehicle owner or driver a duty to take the keys out of his ignition. We are unwilling, however, to extend the duty to one who parks his vehicle in an area which is heavily trafficked, as in the instant case, absent additional allegations showing that a theft is likely to occur. Plaintiff’s allegations in the amendment to her complaint, stating that there was ‘a continuous stream of people arriving and departing on foot as well as by vehicle’ is simply insufficient to constitute ‘special circumstances’ ***.” 166 Ill. App. 3d at 824.

In discussing “an allegation that a particular neighborhood is a high crime area” the Hensler court (166 Ill. App. 3d at 824) was referring to Ruyle v. Reynolds (1976), 43 Ill. App. 3d 905, 357 N.E.2d 804. In that case, plaintiffs alleged that defendant Richards, the agent of defendant Reynolds, parked Reynolds’ car in a food store parking lot unattended and failed to lock the doors or remove the key from the ignition. After the car was stolen, the thief caused it to collide with the plaintiffs’ vehicle. The appellate court reversed the dismissal of plaintiffs’ common law negligence count, holding that the allegation that “given the neighborhood of the parking lot it was foreseeable that a thief would steal” the car was sufficient to allege “special circumstances which, if proved, may have made the theft here foreseeable.” Ruyle, 43 111. App. 3d at 909.

Here, plaintiffs alleged in their complaint:

“That at the aforementioned time and place, and prior thereto, the defendant well knowing its duty in this regard carelessly and negligently caused and permitted said passenger bus while on the premises of said bus barn, to be stolen, although the defendant knew, or in the exercise of ordinary and reasonable care should have known of the great likelihood that said passenger bus would or could be stolen from such bus barn in so far as defendant knew or, in the exercise of ordinary care, should have known that on numerous prior occations [sic] this and other passenger buses had been stolen from said bus bams owned and operated by the Chicago Transit Authority.”

Plaintiffs alleged that, because a number of other buses had been stolen from its barns, defendant knew or should have known that the occasion for theft was likely to reoccur. (It is unclear from the record whether the bus which is the subject of this suit had been stolen before and whether that is what plaintiffs intended when they alleged in their complaint, as we have noted above, that “this and other passenger buses had been stolen from said bus bams”; however, the complaint is sufficient even if that allegation is disregarded.) If true, and considered under the rubric of legal insufficiency it would have to be taken as trae, this allegation would be sufficient to establish foreseeability on the part of defendant. Considered under the standards governing summary judgments, it would still have to be taken as true, since the allegation was undenied, unexplained, and unrebutted by defendant. To require plaintiffs to plead anything more in their complaint would be to compel them to plead evidence, a practice not suggested in any way by the history of our Civil Practice Law, our rules of court, or by any of the applicable decisions. Moreover, our Civil Practice Law provides that “[pjleadings shall be liberally construed with a view to doing substantial justice between the parties.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 603(c).) It further provides that “[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 612(b).) Accordingly, we hold that the trial court incorrectly found that plaintiffs’ allegations were conclusory and insufficient to charge special circumstances; it therefore erred in granting summary judgment.

Plaintiffs attached to their motion for rehearing and reconsideration a document produced by defendant approximately a year previously, entitled “Study of All Bus Thefts from All Bus Garages.” The study indicates that there were 27 incidents of buses stolen from CTA garages during the period January 1977 to December 1979, three of which were stolen from the same garage as the bus which was stolen in this case. The three thefts occurred during the period January 1978 through March 1978, approximately four years prior to the theft in this case. Plaintiffs contend that the mere fact that defendant kept this study indicates it was aware of a problem with buses being stolen from its garages. They also assert that it is a reasonable inference that, since there have been so many incidents of buses stolen from garages, it was foreseeable that a theft could have occurred at any garage at any time. Plaintiffs accordingly urge that since there was clearly a fact issue raised as to whether there were special circumstances present in this case, specifically, whether the theft was foreseeable, summary judgment should not have been granted.

Plaintiffs also aver that defendant significantly failed to present evidence to refute or even address their allegations of foreseeability in their motion for summary judgment, and that, therefore, they did not have the burden of presenting evidence in support of their allegations. Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958 (“[T]he movant must present evidence which precludes any possible liability before the party opposing summary judgment is required to present some factual basis by way of counteraffidavit which would arguably entitle him to judgment”).

Defendant responds that it is well settled that the opponent to a summary judgment motion cannot simply stand by, but is required to raise any defenses and produce evidence tending to show a question of fact exists. (Murphy v. Urso (1980), 83 Ill. App. 3d 779, 404 N.E.2d 287.) Further, where, as here, the movant supplies facts which, if uncontradicted, entitle it to judgment, the opposing party cannot rely alone on his complaint, even when the complaint standing alone presents a genuine issue of material fact. (Pefferle v. Young (1966), 72 Ill. App. 2d 440, 218 N.E.2d 247.) Defendant also contends that the study does not raise a question of fact, because there were no thefts from this particular garage for four years preceding this theft.

Both parties cite decisions from other jurisdictions to support their positions. Defendant relies on Kaelin v. Nuelle (Mo. App. 1976), 537 S.W.2d 226, in which a pick-up truck owned by defendant was stolen and collided with plaintiff’s vehicle. The trial court granted defendant’s motion for a directed verdict, and the appellate court affirmed, stating:

“We hold that here, where the only evidence is that defendant Nuelle parked his pick-up truck in a garage stall, on private property, locked the doors of the truck and left it there with a key in the ignition, the plaintiff, as a matter of law, failed to adduce sufficient evidence of negligence or proximate causation to make a submissible case even though there was some evidence that defendant Nuelle’s place of business had, over a period of 5 years, experienced some eight or nine burglaries and this same pick-up truck had been removed from the premises for a short distance on two prior occasions. The trial court committed no error in directing a verdict for Mr. Nuelle and we rule this point against plaintiffs.” 537 S.W.2d at 231.

In response, plaintiffs cite Itami v. Burch (Or. App. 1982), 59 Or. App. 400, 650 P.2d 1092, in which the appellate court affirmed a jury verdict for plaintiff, stating:

“The truck was parked on private property in an urban area, at night, where other vehicles were also parked. The parking area served a building which, according to the testimony, had been burglarized at some time in the past. On these facts, we cannot say that the harm suffered by plaintiffs was out of the range of what is reasonably foreseeable as a matter of law. Reasonable minds could differ as to whether appellants should have foreseen that the truck would be stolen and driven negligently. A rational trier of fact could find them negligent in failing to remove the key from the ignition of the truck.” (59 Or. App. at 404, 650 R2d at 1094.)

Plaintiffs also rely on Enders v. Apcoa, Inc. (1976), 55 Cal. App. 3d 897, 127 Cal. Rptr. 751, where the appellate court reversed the dismissal of an action, stating:

“Plaintiff asserts that the history of prior thefts of autos from defendant Apcoa’s parking lots constitutes a ‘special circumstance.’ Apcoa acknowledges that during the 3-year period preceding the theft of the Ziff automobile, approximately 12 vehicles had been stolen from Apcoa’s 68 parking lots, 50 of which operated similarly to the one here involved. Included in these 12 thefts was an earlier theft from the lot in the instant case. This factor, when measured against the degree of care taken, could assist in establishing the ‘special circumstances’ necessary to demonstrate that the risk of injury to members of the general public was foreseeable to this defendant.” 55 Cal. App. 3d at 904,127 Cal. Rptr. at 755.

As we have noted above, defendant filed a motion for summary judgment in lieu of answering plaintiffs’ complaint. Thus it did not plead to their allegations; much less did it in any way deny them. Because defendant chose to follow this procedure, it assumed, as it must, the burden of showing that there was no genuine issue of material fact to try in this case. However, it failed in this burden; consequently, plaintiffs had no duty to present evidence in support of their allegations. The function of a motion for summary judgment is, of course, to determine the existence of a genuine issue of material fact, as section 2 — 1005 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) plainly states, and not to test the sufficiency of the allegations of the complaint, which is the specifically designated office of a section 2 — 615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). (Delgatto v. Brandon Associates, Ltd. (1988), 172 Ill. App. 3d 424, 526 N.E.2d 384.) Moreover, as we have previously noted, a motion for summary judgment almost necessarily assumes the sufficiency of the allegations of the complaint. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605; Delgatto v. Brandon Associates, Ltd. (1988), 172 Ill. App. 3d 424, 526 N.E.2d 384.) The trial judge clearly erred in granting summary judgment; she erred just as plainly when she refused to reconsider her ruling.

Because this case must be remanded to the trial court for further proceedings, we need not address plaintiff’s remaining claims of error.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and this case is remanded for further proceedings.

Reversed and remanded.

HARTMAN and BILANDIC, JJ., concur.