author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNEDY BLOUNT et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—87—1335
    Opinion filed September 30, 1991.
    Modified on denial of rehearing November 5, 1991.

      Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
    Michael J. Pelletier and Debra R. Salinger, both of State Appellate Defender’s Office, of Chicago, for appellant Michael Dotson.
    Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant Kennedy Blount.
   JUSTICE DiVITO

delivered the opinion of the court:

Following a joint jury trial, defendants Kennedy Blount and Michael Dotson were convicted of murder. (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a)(1).) Dotson was sentenced to imprisonment for 40 years and Blount for 30 years. In this appeal, they assert numerous grounds for reversal, principally that the circuit court erred in denying their motions for severance of their trial.

Early on March 14, 1985, Frederick Poe was found dead in the lobby area of the Henry Horner housing project at 140 N. Wood Street in Chicago. Dotson, Blount, and Dotson’s brother Robert were subsequently charged with the murder of Poe. Prior to trial, both Dotson and Blount made motions to suppress statements they had made. Following a hearing, the circuit court denied both motions.

Dotson and Blount, as well as Robert Dotson, also made motions for severance of their trial. All three alleged that their defenses were antagonistic to each other. Dotson argued his defense would be alibi and would be in direct conflict with Blount’s statement to the police and an assistant State’s Attorney. He contended that if Blount did not testify, he would not have an opportunity to confront Blount concerning his prior statement. Blount argued that his statement was a result of police coercion and that he had retracted it. Moreover, he contended that Dotson’s statement was clearly hostile and antagonistic to his case. Ruling that the statements were interlocking, the circuit court denied Dotson’s and Blount’s motions for severance. Because Robert Dotson did not make a statement, the court severed his case; his separate trial is not relevant to this appeal.

At trial, Tyrone Jackson testified on behalf of the State. On March 14, 1985, at 1:45 a.m., he left his apartment and went to 140 N. Wood to visit his girl friend, Norma Jean. When he was 30 feet from the rear entrance of the building, he heard five shots. He continued walking to the building and pulled on the door handle. Unable to open it initially, he grabbed it with both hands and “snatched it open.” He then was “face to face” with Blount, who had been holding the door on the inside. Blount told Jackson to “get the fuck out of there.” After Blount ran off, Jackson entered the building.

Jackson heard someone moaning and walked through an interior door, where he saw Poe lying in the hallway. He heard a noise and turned around to see Robert and Michael Dotson. Jackson asked them, “What is up[?]” and Michael Dotson pulled a gun, which he pointed at Jackson’s head. Robert said, “Kill the motherfucker and let’s get it over with and let’s go.” Michael Dotson “clicked” the gun five times, but it did not fire. Both Robert and Michael Dotson then ran out the back door.

Jackson stated that he “knocked on everybody’s door” trying to get help, but no one came out. When he heard police cars, he ran home because he was afraid. He did not tell anyone what he had seen until the next morning, when he told his mother. After talking to Officer William Freeman, Jackson viewed a lineup and photographs. He identified Blount and Dotson, as well as Robert Dotson.

On cross-examination, Jackson conceded that he did not knock on the door to apartment 103, nor did he go up to his girl friend’s apartment in the building to tell her what had happened. He admitted that he had charges pending against him, but denied that he was hoping for a deal in consideration for his testimony.

Officer William Freeman, a Chicago police officer, testified that he was assigned to the Henry Horner Boys Club and that on March 14, 1985, he met with Jackson. Jackson told him that he saw Blount and Michael and Robert Dotson shoot Poe. Freeman related the information to Officer Charles Toussas, who later arrested Michael Dotson.

Assistant medical examiner Dr. Shaku Teas, who performed the autopsy, testified that Poe had suffered two through-and-through gunshot wounds. The cause of his death was a gunshot wound of the back.

According to his statement given to police after his arrest, sometime after 7 p.m. on March 13, 1985, Dotson got off a bus at the intersection of Washington and Damen in Chicago. He saw his brother Robert and cousin Blount playing basketball. All three were members of the “Disciples” street gang. They went to Dotson’s sister’s apartment, where Robert told Dotson that he had been in a fight with some “Stones,” another gang. Robert said he wanted to do something about it, and Blount was talking about revenge. Both Blount and Robert had guns. Blount gave Dotson a .357 magnum, which Dotson unloaded and put in his pocket.

Blount, Dotson, and Robert Dotson then went to 140 N. Wood; Dotson went to protect his brother from “something stupid.” Robert and Blount went to the back door, while Dotson walked around to the front. When Dotson was about five or six steps from the front door, he saw and heard Blount fire five or six shots. When Dotson got by the door, someone came running toward him. Dotson pulled his gun, pointed it at the person, a male black, and clicked it; the person then ran away. Thereafter, Dotson threw the gun in the fire lane and went home.

At trial, Dotson testified that he was at home with his wife, Betty, at the time of the shooting. He acknowledged knowing Poe but denied getting into a fight with him or killing him. He stated that he had learned from his sister Margaret that Poe had died. Dotson maintained that his statement to the police was not true; he had given it because he had been afraid for his life and the police had “led him through it.”

According to Blount’s statement to the police after his arrest, it was Robert Dotson who suggested that they shoot some Stones. Blount had no gun, but both Robert and Michael Dotson did. The three went to the Banner Lounge, where they saw Poe leaving. They followed him to 140 N. Wood, where Robert went in first to see if Poe was inside. He came out a minute later and said “we got them, man.”

The three then went inside the building. Blount remained by the door, while Robert and Michael Dotson went into the hallway. Robert shot once, but Blount did not know at whom he was shooting. Dotson shot six times in the same direction, followed by Robert shooting five more times. They all ran off, and Robert and Dotson told Blount that they had shot Poe. Blount did not testify at trial and presented no evidence.

Betty Dotson, Michael Dotson’s wife, testified for Dotson that, on the evening of March 13, 1985, Michael was home with her and her two children. The landlord came over for a couple of hours to repair the hot water heater. Between 9 and 10 p.m., Michael left for about 25 minutes to go to the store, but then returned home and remained there all night.

In rebuttal, the State called Clara Mae Dotson, Dotson’s mother, who testified that on March 13, 1985, Michael lived with her at 827 N. Francisco. Both Michael and his brother Robert left the house separately around 4 or 5 p.m. They returned at approximately 8 p.m. the same evening and were there when she awoke at 8:30 or 9 a.m. the next day.

After the jury returned verdicts of guilty of murder against both defendants, Dotson filed a motion for new trial based on newly discovered evidence. The circuit court denied the motion.

I

Dotson contends that the circuit court erred in denying his motion for a severance on two grounds: (1) the denial of his motion violated the principles enunciated in Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, and (2) Blount’s theory of defense was antagonistic to his. For reasons that follow, we agree that Dotson’s case should have been severed from Blount’s and that reversal of his conviction is necessary.

Dotson initially argues that his sixth amendment right of confrontation was violated when his nontestifying codefendant’s statement was introduced at their joint trial. The State responds that Blount’s statement possessed sufficient indicia of reliability and that any error in its admission was harmless.

The United States Supreme Court held in Cruz that under the confrontation clause, a defendant’s rights are violated when the confession of his nontestifying codefendant implicating the defendant is admitted at their joint trial. This is so even where defendant’s own interlocking confession is admitted against him. Consistent with Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the Court stated that limiting instructions to the jury would not cure the violation.

The Court, focusing on the reliability of a codefendant’s statement, stated:

“Quite obviously, what the ‘interlocking’ nature of the codefendant’s confession pertains to is not its harmfulness but rather its reliability: If it confirms essentially the same facts as the defendant’s own confession it is more likely to be true. Its reliability, however, may be relevant to whether the confession should (despite the lack of opportunity for cross-examination) be admitted as evidence against the defendant ***.” (Emphasis in original.) Cruz, 481 U.S. at 192-93, 95 L. Ed. 2d at 171, 107 S. Ct. at 1719.

Illinois followed Cruz in People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026, holding that it was error not to grant a severance to three defendants who made interlocking confessions which were introduced at their joint trial, where none of them testified. The Lincoln court stated:

“Severance, therefore, is now mandated whenever a codefendant’s statement interlocks with the defendant’s statement, which he denies the truth of at trial, because the admission of the codefendant’s corroborating statement is so devastating to the defendant’s defense as to deny him a fair trial.” (Lincoln, 157 Ill. App. 3d at 705.)

As in Lincoln and Cruz, the admission of Blount’s statement was devastating to Dotson. Blount’s statement was admitted and Blount did not testify, leaving Dotson with no opportunity to cross-examine him.

In People v. Duncan (1988), 124 Ill. 2d 400, 530 N.E.2d 423, the Illinois Supreme Court reaffirmed Illinois’ long-standing sensitivity to the dangers of using a nontestifying codefendant’s statements. The Duncan court stated that in cases such as the one at bar, the court must make a choice between severance, nonuse of a nontestifying co-defendant’s admissions, or redaction to eliminate all reference to the implicated defendant. Duncan, 124 Ill. 2d at 412.

The court in the instant case failed to exercise any of these options, resulting in the violation of Dotson’s sixth amendment right to confrontation. Because of this error, Dotson’s case must be reversed and remanded.

Another basis supporting reversal is found in Dotson’s contention that he was prejudiced by Blount’s antagonistic defense. The general rule is that defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461.) However, where the defenses of the codefendants are so antagonistic to each other that one of the defendants cannot receive a fair trial jointly with the other, severance is required. People v. Bean (1985), 109 Ill. 2d 80, 93, 485 N.E.2d 349; People v. Daugherty (1984), 102 Ill. 2d 533, 468 N.E.2d 969.

The decision to grant or deny a severance is within the sound discretion of the circuit court and will not be reversed absent an abuse of that discretion. (People v. Harris (1988), 123 Ill. 2d 113, 159, 526 N.E.2d 335.) A motion for severance must be made before trial begins and must demonstrate how the defendant will be prejudiced by proceeding with a joint trial. (Lee, 87 Ill. 2d at 186.) Mere apprehensions of prejudice are not enough. People v. Smith (1988), 172 Ill. App. 3d 94, 108, 526 N.E.2d 849.

Prior to trial, both Dotson and Blount repeatedly told the court that they would be presenting antagonistic defenses. Blount originally stated that he would assert an alibi defense, but at trial, chose to neither testify nor put on witnesses. Dotson informed the court that he intended to plead alibi, which he did, and which was in direct conflict with Blount’s statement to police which inculpated him.

A similar situation was presented in Daugherty, where two defendants were jointly tried for and convicted of murder and armed robbery. Each had made statements professing his innocence and blaming the other. Although the prosecutor stipulated that he would not use either of the statements at trial, the supreme court reversed and remanded the case. In finding that the circuit court’s denial of defendant’s motion for severance was an abuse of discretion, the court stated:

“When codefendants have each made statements implicating the other but professing their own innocence, it is almost inevitable that their lines of defense at trial will become inconsistent and antagonistic and severance is necessary to forestall that result and ensure a fair trial. In such cases, the hostility between the codefendants is likely to surface at trial whether or not they each take the stand themselves.” (Daugherty, 102 Ill. 2d at 544.)

This is precisely what occurred in the instant case with respect to Dotson. His theory of defense at trial was that his statement was false and that he was at home at the time of the shooting. The antagonism which the Daugherty court sought to prevent was brought out during closing arguments, where Blount’s attorney stated:

“How can you [h]old a 16-year old boy responsible for two adults with guns? How’s he supposed to stop them?
* * *
Kennedy never saw Fred Poe. He never came within 50 yards of Fred Poe. According to Tyrone Jackson, both of his hands were on the door. So there was no gun in his hand, and if you believe that two adults would somehow lack the courage, either act in the heat of passion or to act consistent with a plan to commit murder; that they would rely on him for courage, I can’t accept that. If the stor[y] is as they have portrayed it, that the two Dotsons had the guns and they made up their minds, could Kennedy have stopped them? Do you believe that? Was he [Blount] responsible for two adults [Michael and Robert Dotson] at the age of 16 years old. He [Blount] wasn’t responsible, no. No way.” (Emphasis added.)

Certainly at this time, if not before, the antagonism facing Dotson was evident and a severance was required. The court has a continuing duty at all stages of trial to grant a severance if prejudice is apparent. People v. Murphy (1981), 93 Ill. App. 3d 606, 417 N.E.2d 759.

The circuit court committed reversible error in not granting Dotson’s motion for severance, as Blount’s theory, which Dotson was unable to test, was antagonistic. Thus, because Dotson was denied his right to a fair trial, his conviction must be reversed and his case remanded for a new trial.

Because of our resolution of his case, other issues raised by Dotson need not be addressed. Those issues are unlikely to recur at his retrial or may be adequately addressed by the circuit court prior to retrial, such as whether his prior conviction for mob action was for a felony or misdemeanor offense and therefore properly used for impeachment purposes.

II

Blount contends that the circuit court erred in denying his motion for severance. He argues that Dotson’s defense was antagonistic to his and, therefore, separate trials were required. The State responds that the two defenses were not antagonistic and that the circuit court properly denied Blount’s motion for severance.

Two types of possible prejudice can result from a joint trial; first, “a defendant may be denied his constitutional right of confrontation if, in a joint trial, the State introduces the admission of a codefendant which implicates the defendant.” (People v. Lee, 87 Ill. 2d at 187.) In the present case, Blount does not specifically assert that his right of confrontation was denied; we note, however, that Blount had the opportunity to cross-examine Dotson and, thus, was not denied that sixth amendment right.

As stated earlier, Dotson presented an alibi defense at trial, maintaining that he was home with his wife at the time of the shooting. Blount’s attorney did not cross-examine Dotson, though he was given the opportunity to do so. Blount did not testify at trial. The State introduced his statement, in which he acknowledged being at the scene but denied having a gun, and in which he stated that Dotson and his brother shot Poe.

In Nelson v. O’Neil (1971), 402 U.S. 622, 29 L. Ed. 2d 222, 91 S. Ct. 1723, the United States Supreme Court held:

“Where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.” (402 U.S. at 629-30, 29 L. Ed. 2d at 228, 91 S. Ct. at 1727.)

That holding is applicable to Blount’s case. Dotson took the stand, maintained that his statement to the police was untrue, and then presented an alibi defense which in no way inculpated Blount. Blount therefore suffered no harm.

The second form of possible prejudice from a denial of severance occurs when “a codefendant takes the stand to point a finger at the defendant as the real perpetrator of the offense” (People v. Lee, 87 Ill. 2d at 187); however, “codefendants need not reciprocally blame one another to warrant a severance” (People v. Threzzy (1987), 163 Ill. App. 3d 180, 185, 516 N.E.2d 573). Blount maintains that, although Dotson proffered an alibi defense, Dotson’s defense was antagonistic to his because Dotson accused Blount by arguing that “Dotson was not responsible for the crime committed by defendant Blount.”

Contrary to his assertion, Blount suffered no antagonism. Because Dotson asserted an alibi defense, the antagonism which Daugherty and Bean sought to prevent was nonexistent. (People v. Cole (1985), 131 Ill.’ App. 3d 36, 475 N.E.2d 620.) Not once during trial did Dotson accuse Blount of Poe’s murder; rather, Dotson swore that his statement to police was untrue and he maintained his innocence by offering an alibi defense. It is true that Dotson’s attorney contended, as an alternative argument, that even if the jurors accepted Dotson’s statement to police, his statement was insufficient to establish his accountability; however, Dotson’s attorney did not ask the jury to accept Dotson’s statement, nor did she urge the jury to find that Blount was the offender. The record does not reflect that Blount was in any way prejudiced by Dotson’s alibi defense.

Because Blount was not confronted with Dotson’s dilemma of a nontestifying codefendant’s statement implicating him, without the ability to rebut the accusations against him or to test their truthfulness, and because Blount was not prejudiced by any hostility in Dotson’s defense, we conclude that the circuit court did not err in denying Blount’s motion for severance.

We reject, too, Blount’s assertion that, consistent with holdings such as People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247, and People v. Wilson (1987), 161 Ill. App. 3d 995, 515 N.E.2d 812, a third type of prejudice affected his right to a fair trial. He refers to the holding in those cases that “any set of circumstances which deprive^] a defendant of a fair trial is sufficient to secure reversal.” (Emphasis in original.) In carefully examining the record in this case and in applying the Byron/Wilson rationale, we conclude that Blount’s contention is without merit. Mindful of the specific requirement that no reciprocal accusations need be present to conclude that the defenses of Blount and Dotson were inconsistent and antagonistic, we do not find in this case the type of prejudice which warranted reversal in both Byron and Wilson.

Ill

Blount also maintains that he was denied a fair trial because of improper closing arguments by the prosecutors.

Blount asserts that in both the opening and rebuttal portions of their closing arguments to the jury, the prosecutors referred to his failure to call certain defense witnesses. Specifically, Blount points to a portion of the State’s argument in which the prosecutor questioned why Blount had not called any witnesses to corroborate his claim that he was beaten at the police station in order to coerce a statement. Blount also complains of a portion of the State’s argument in which the prosecutor allegedly commented upon Blount’s failure to present evidence contradicting the testimony of Tyrone Jackson. Blount’s objections to these statements were overruled by the circuit court.

Although we recognize that “a defendant has no duty to call anyone as a witness in his case” (People v. Moore (1972), 9 Ill. App. 3d 231, 232, 292 N.E.2d 42), we find that the State’s comments did not rise to the level of reversible error. In the instant case, Blount’s attorney attempted to characterize Blount’s statement as coerced by beatings; however, despite the injection of the issue of police coercion, there was no evidence presented at trial which suggested that the police forced Blount to make his statement. Consequently, the State’s comments upon Blount’s failure to present such evidence was a proper response to the issue of police brutality raised by Blount. See People v. Lyles (1985), 106 Ill. 2d 373, 390, 478 N.E.2d 291.

Further, the State’s comments upon Blount’s failure to present evidence contradicting Jackson’s testimony that he knocked on residents’ doors also were invited by the comments of Blount’s counsel. During closing argument, Blount’s counsel referred to the State’s failure to have any police officers testify concerning whether they had knocked on every resident’s door to determine what they might have seen or heard. Blount’s counsel suggested that the police may not have wanted to find out what was actually seen or heard. Thus, the State’s comments that Blount could have called the residents as witnesses to support his charge that the police conspired to hold back the production of evidence was proper in response to Blount’s counsel’s argument.

Blount also argues that during the State’s rebuttal argument, the prosecutor impugned his attorney’s integrity by suggesting that counsel employed trickery. He contends that the State accused his attorney of trying to divert the jury’s attention from the real issues in the case to obtain an acquittal. As a result of this, he contends that he was prejudiced and denied a fair trial. The State maintains that Blount has waived the issue.

Even when considered under the plain error rule, however, we find that the State’s comments do not rise to the level of reversible error. A prosecutor is permitted great latitude in closing arguments. (People v. Lasley (1987), 158 Ill. App. 3d 614, 511 N.E.2d 661.) The question on review is whether the prosecutor’s comments, viewed in light of all the evidence, were a material factor in the conviction or whether, had the comments not been made, would the jury have reached a different result. (Lasley, 158 Ill. App. 3d at 625-26.) When viewed in its entirety, we cannot say that, absent the comments, the jury would have reached a different conclusion.

IV

Blount next contends that the circuit court erred in not granting a new trial based on newly discovered evidence. Subsequent to the trial, Dotson informed the court that two additional witnesses had been found, Norma Jean Jones and Arlean Jones. Dotson stated that Norma Jean would testify that Jackson was in her apartment when shots were fired; Arlean would testify that Jackson told her that, at the time of the shooting, he was in Norma Jean’s apartment. The State responds that, though Dotson motioned for a new trial based upon allegedly newly discovered evidence, Blount never raised the issue before the circuit court.

The record discloses that neither in his post-trial motion nor in his post-trial argument did Blount raise the issue of newly discovered evidence. Even considering the issue under the plain error doctrine, however, we find that Blount has failed to establish that any error occurred.

The decision to grant or deny a motion for new trial based on newly discovered evidence is within the circuit court’s discretion, and the exercise of that discretion should not be disturbed on review except in cases of manifest abuse. (People v. Chew (1987), 160 Ill. App. 3d 1082, 513 N.E.2d 1099.) An accused’s motion for new trial based on newly discovered evidence must be supported by an affidavit showing his lack of prior knowledge of such evidence and his diligence in obtaining it. (People v. Gray (1981), 96 Ill. App. 3d 757, 760, 422 N.E.2d 45.) In addition, the accused must present affidavits of witnesses who would testify regarding the new evidence on retrial unless the lack of such affidavits is sufficiently explained. Gray, 96 Ill. App. 3d at 760.

In the instant case, Blount made no request for a new trial based on the newly discovered evidence; neither he nor Dotson filed any affidavits nor gave any reason for their absence. Thus, he has not complied with basic procedural requirements. A movant has a responsibility to obtain a ruling on his motion if he wishes to raise a question thereto on appeal. (People v. Neal (1990), 142 Ill. 2d 140, 568 N.E.2d 808; People v. Schmitt (1989), 131 Ill. 2d 128, 137, 545 N.E.2d 665.) In this case, Blount failed even to make the motion.

Moreover, the proposed testimony does not satisfy substantive requirements. New evidence must be of such conclusive character that it will probably change the outcome on retrial. (People v. Jones (1987), 157 Ill. App. 3d 1006, 511 N.E.2d 1215.) Not only must it be material to the issue and not merely cumulative, but it must also have been discovered after trial and be of such a character that it could not have been discovered prior to trial by exercise of due diligence. Jones, 157 Ill. App. 3d at 1024.

Blount has neither demonstrated that the proposed evidence would change the outcome on retrial, nor has he given explanation as to why the witnesses could not have been discovered prior to trial. Thus, because he has failed to satisfy both procedural and substantive requirements, we find that the circuit court properly denied a new trial based on allegedly newly discovered evidence.

V

Blount further contends that the State failed to disclose statements which were material to the issue of his guilt or innocence. Specifically, Blount alleges that the State was in possession of medical records which would have corroborated his testimony at the motion to suppress that he complained that he was hit in the eye by a policeman. He contends that the State failed to tender the report prior to trial, and also failed to make any reference to the report in its answer to discovery. The circuit court denied defense counsel’s request to utilize the report in a reopened hearing to suppress statements or during trial.

On appeal, all reasonable presumptions are in favor of the action of the circuit court and the burden is upon the appellant to overcome such presumption by affirmatively showing the errors charged. (People v. Henderson (1985), 136 Ill. App. 3d 1041, 483 N.E.2d 1068.) The existence of error cannot be presumed but must be affirmatively shown of record. (Henderson, 136 Ill. App. 3d at 1045.) In the instant case, the State contended that the disputed medical records had indeed been furnished to Blount; the issue of whether the reports actually had been tendered was never resolved. Thus, the presumption before us, based on the circuit court’s ruling, is that there was no discovery violation.

To establish a discovery violation which would warrant a new trial, the defendant has the burden of establishing three elements: (1) that the evidence was favorable to him; (2) that the prosecutor failed to disclose the evidence after a specific request; and (3) that the evilaterial. (People v. Flax (1986), 147 Ill. App. 3d 943, 954, 667.) We conclude that Blount has not established these id further, that, at best, the medical records offered only n of the fact that Blount complained of mistreatment. The rds did not establish that he was mistreated. We note also sged error was discovered by Blount during trial. Thus, he nade any proper use of the records to combat the State’s ress his defense. His argument on this issue must there-

final contention is that the circuit court failed to consider ative potential and thus erred in sentencing him to 30 sonment. The State maintains that the court properly con>osed was appropriate. relevant factors in determining the sentence and that the

m abuse of discretion by the circuit court, a defendant’s 1 not be disturb ed on review. (People v. Perruquet (1977),

VI 68 Ill. 2d 149, 368 N.E.2d 882.) The circuit court is normally in a superior position to make a sound determination as to the punishment to be imposed. (People v. Cabrera (1987), 116 Ill. 2d 474, 494, 508 N.E.2d 708.) Though the circuit court must consider defendant’s rehabilitative potential in determining what sentence to impose (People v. Gibbs (1977), 49 Ill. App. 3d 644, 648, 364 N.E.2d 491), the nature of the crime, protection of the public, deterrence, and punishment also are relevant. People v. Whitehead (1988), 171 Ill. App. 3d 900, 908, 525 N.E.2d 1084.

The circuit court in the instant case not only received defendant’s pretrial investigation report, but also heard evidence in aggravation and mitigation at the sentencing hearing. Moreover, the circuit court was aware of all of the evidence which had been presented at trial. The circuit court was therefore in the best position to determine what sentence was appropriate. The record before us supports the sentence that was imposed.

Accordingly, the judgment of the circuit court of Cook County is affirmed as to Blount. As to Dotson, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Affirmed in part; reversed and remanded in part.

SCARIANO, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    ANDREW P. MINYO, Plaintiff-Appellee, v. CHRISTOPHER P. MINYO Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2645
    Opinion filed September 30, 1991.

      Rolland H. Stimson, of Chicago, for appellant.
    David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This appeal arises from a judgment entered by the trial court in favor of plaintiff in an action to enforce a constructive trust and for partition of certain real estate. Plaintiff cross-appeals on the issue of whether the trial court abused its discretion in denying plaintiffs request for attorney fees.

Plaintiff Andrew Minyo and defendant Christopher Minyo are brothers. In September of 1976, plaintiff approached the defendant about the possibility of purchasing a building at 5419 N. Glenwood in Chicago. The parties discussed purchasing the property as equal partners, with each paying half of the expenses, and plaintiff being responsible for the paperwork, while defendant would perform all of the maintenance on the building. Plaintiff alleged that the parties subsequently entered into this agreement and brought suit to enforce a constructive trust and for the partition of the real estate. Defendant maintained that the brothers never reached an agreement to purchase the property as partners. The trial court found that the parties were joint venturers in the real estate and the proceeds from it and that plaintiff was entitled to an accounting as to the proceeds. This appeal followed.

About September 1976, Alice Johnson offered plaintiff the opportunity to purchase the Chicago building that she owned and in which plaintiff was a tenant. Plaintiff advised her that he was interested in purchasing the building and began to look for financing. Plaintiff inquired with several lenders and was advised that he would need 20% to 30% as a down payment because the property was income-producing property. He was also advised that he could possibly obtain the property with a Veterans Administration (VA) loan. However, because plaintiff had not served the required six months’ active duty, he was not eligible for a VA loan.

That same month, plaintiff approached his brother, defendant Christopher Minyo, and asked him whether he would be interested in going in as plaintiff’s partner to purchase the property. Plaintiff testified that he explained to defendant that they each would share a 50% interest in the property, and that plaintiff would be responsible for preparing the paperwork to complete the purchase and would pay 50% of the expenses. He stated that defendant agreed to the arrangement. Defendant testified that they discussed the 50-50 arrangement whereby he would pay one-half of the expenses, but that an agreement was never reached.

Defendant advised plaintiff that he did not have money for the down payment, and plaintiff offered to pay defendant’s portion of the payment with money that he owed to defendant. At that time, plaintiff owed defendant $2,900 for two loans that defendant made to him in 1970 and 1971. Plaintiff testified that defendant agreed to this offer and that he advised defendant that they could sell the building after repairing it and possibly buy other properties together.

In October 1976, plaintiff, his wife, their attorney, Robert Bisaillon, and the seller met to discuss the sales terms for the property. Attorney Bisaillon testified that he took notes and drafted a sales contract five days later. He testified that it was his understanding that plaintiff and defendant were partners and that he was representing both plaintiff and defendant in the purchase of the building. Bisaillon stated that he did not meet defendant until the day of closing.

In November 1976, plaintiff and defendant met. There is conflicting testimony regarding who else was present at that meeting; however, at that time plaintiff presented defendant with the contract and defendant testified that plaintiff’s name had been stricken from the contract. Plaintiff testified that he advised defendant that the partnership still existed in accordance with the September agreement and that he would pay 50% of all expenses.

Defendant testified that plaintiff told him he could not sign the contract because there were “too many problems.” He stated that he signed the contract without reading it and that he trusted plaintiff’s ability to handle the paperwork. Defendant stated that at the time he signed the contract he no longer believed plaintiff was a 50% owner of the building.

Plaintiff testified that he assisted defendant in preparing papers for the VA loan to finance the purchase of the building. As part of the closing costs, plaintiff contributed $4,600 from his personal funds and a check for $2,400 that he received from Alice Walker. Defendant claimed that, after plaintiff gave him the check for $4,600, he stated “this is the money I owe you, now we are even.”

Prior to the closing on March 4, 1977, plaintiff and defendant discussed with attorney Bisaillon the possibility of placing the property in a land trust. Bisaillon testified that he advised the brothers his understanding was that they were to have a 50-50 partnership with equal rights, responsibilities, duties and obligations. He also advised them to have a joint venture or partnership agreement. Bisaillon stated that defendant acknowledged he understood by nodding his head and saying yes; plaintiff repeated the words of the attorney in his own words. Bisaillon testified that defendant never said anything to indicate that the arrangement between defendant and plaintiff was less than 50-50.

After the closing plaintiff continued to live in the building and make $200 monthly payments to defendant. Plaintiff testified that these payments were for the mortgage, but defendant claimed that the payments were for rent. Plaintiff and his wife frequently assisted defendant with maintenance work and repairs on the building. Plaintiff testified that he contributed money to repair his own apartment.

In 1977 plaintiff discussed with defendant the need to place their partnership agreement into writing, but defendant advised him that he wanted to keep things as they were. In 1980 plaintiff again discussed with defendant the need for a written agreement. He offered to buy out defendant’s equity for $45,000 and assume the loan, but defendant did not accept the offer. In 1983 defendant offered to sell plaintiff his interest in the property, but plaintiff did not accept the offer.

In 1984 plaintiff moved out of the building and stopped paying rent pursuant to a court order. Defendant continued making mortgage payments until 1987 when the building was sold.

Although at trial the defendant denied that plaintiff had a 50-50 interest in the property, he acknowledged that plaintiff’s initial contribution of $4,600 amounted to a 12% interest in the property. Defendant stated in his deposition testimony that he and plaintiff had discussed a 50-50 arrangement, but that such an agreement was never reached.

The trial court found that both defendant’s and plaintiff’s conduct indicated that plaintiff was a partner from the beginning of the transaction and for years after that time. The court focused on the formation of the partnership, specifically the initial conversation between the parties at which time plaintiff had proposed an equal partnership in the purchase of the property. The court also relied on the testimony of attorney Bisaillon. The court found his testimony extremely credible and explained that in representing the parties it was Bisaillon’s job to know the relationship of the parties.

Defendant argues on appeal that the trial court’s determination that a joint venture existed between the parties was against the manifest weight of the evidence. We disagree.

Preliminarily, we note that plaintiff raised a motion in his brief to strike defendant’s brief, alleging that the brief did not contain a fair statement of the facts. The statement of facts in both briefs contain contradictory trial testimony. On review, this court disregards inappropriate statements contained in either brief. Therefore, striking defendant’s brief is unwarranted. James v. Yasunaga (1987), 157 Ill. App. 3d 450, 452, 510 N.E.2d 531.

Additionally, plaintiff raises a cross-appeal to recover attorney fees. He contends that the trial court abused its discretion in failing to award him attorney fees. We have repeatedly stated that this court’s jurisdiction will not be assumed and will be determined sua sponte even in the absence of a motion to dismiss. (Sweasy v. Snyder (1990), 192 Ill. App. 3d 749, 549 N.E.2d 613.) In this case, the record on appeal contains no notice of cross-appeal as required by Supreme Court Rule 303 (107 Ill. 2d R. 303). This court will not accept the burden of the appellee’s argument and research. (Dillard v. Kean (1989), 183 Ill. App. 3d 28, 538 N.E.2d 914.) Accordingly, we dismiss the “cross-appeal.” We next address defendant’s argument that no joint venture existed.

A joint venture is an association of two or more persons to carry on a single enterprise for profit. (Herst, Inc. v. Chark (1991), 219 Ill. App. 3d 690, 694.) The existence of a joint venture is inferred from the facts and circumstances with the intent of the parties being the most significant element. Dawdy v. Sample (1989), 178 Ill. App. 3d 118, 126, 532 N.E.2d 1128.

Generally, the following elements are determinative of such an intent: (1) an express or implied agreement to carry on some enterprise; (2) a manifestation of intent by the parties to be associated as joint venturers; (3) a joint interest as shown by the contribution of property, financial resources, effort, skill, or knowledge; (4) a degree of joint proprietorship or mutual right to the exercise of control over the enterprise; and (5) provision for joint sharing of profits and losses. (Ambul v. Swanson (1987), 162 Ill. App. 3d 1065, 516 N.E.2d 427.) Whether a joint venture exists is a question for the trier of fact, as it is in the best position to judge the credibility of the witnesses. (Baker Farmers Co. v. ASF Corp. (1975), 28 Ill. App. 3d 393, 328 N.E.2d 369.) The trial court’s determination of factual matters will only be reversed when it is contrary to the manifest weight of the evidence. Dawdy v. Sample (1989), 178 Ill. App. 3d 118, 125, 532 N.E.2d 1122.

In this case, the record consists of depositions and the in-court testimonies from plaintiff, defendant and attorney Bisaillon. Plaintiff’s wife, Lucy Minyo, gave only trial testimony. Plaintiff testified at his deposition hearing that in September 1976, he discussed with defendant the possibility of the two “going in together” to purchase the building. Defendant does not deny this fact, although his deposition testimony conflicts with his trial testimony. Plaintiff testified that he met in his apartment with his wife and defendant where the 50-50 arrangement was discussed. At a subsequent meeting with attorney Bisaillon present, plaintiff testified that his name was removed from the real estate contract, but that he explained to defendant that they were still 50-50 partners. He further testified that he and defendant agreed to contribute $200 to cover the mortgage and monthly expenditures. Plaintiff provided the down payment costs and handled the application and closing arrangements as the parties had agreed.

Prior to closing, attorney Bisaillon advised plaintiff and defendant that if they wanted to formalize their agreement in writing, it could be done at a future date. He stated that the parties did not indicate that there was a contrary agreement. After the closing, plaintiff made his monthly contribution of $200, and also contributed labor towards the maintenance of the building. Plaintiff’s in-court testimony was substantially similar to his deposition testimony.

Defendant testified at his deposition hearing that plaintiff discussed the possibility of “going in” on the purchase of the building with him, but that no agreement was ever reached. Defendant claimed that there was no agreement that they each would pay 50% of the expenses for the property, although it was discussed. He testified that he was responsible for taxes and utilities for the property.

Defendant testified that when he saw the real estate sales contract plaintiff’s name had been crossed out. He believed that this indicated plaintiff was no longer an owner. Defendant denied that he was advised by attorney Bisaillon that plaintiff had interest in the property. He claimed that his understanding of 50-50 meant that both parties’ names would be on the title.

Defendant testified at trial that he believed plaintiff was simply discharging a debt owed to defendant when he gave him the money for the down payment, and that plaintiff had no ownership interest in the property.

Attorney Bisaillon testified at the deposition hearing that plaintiff contacted him in September 1976 regarding the purchase of a building. He met with plaintiff, his wife, defendant and the seller about October 26, 1976. At that meeting the sales terms of the property were discussed. Bisaillon prepared a written contract about five days later, and testified that it was his understanding he was representing plaintiff and defendant. He stated that plaintiff advised him that he and his brother were purchasing the property together. About December 1976, plaintiff contacted Bisaillon and advised him that it was better to let defendant apply for a VA mortgage because of the unsatisfactory terms under a conventional mortgage.

Bisaillon testified that prior to the closing he met with plaintiff and defendant and advised them that because of their 50-50 interest and marital status, a land trust could serve their interest. Neither plaintiff nor defendant expressed any concern that they were less than 50-50 owners, and acknowledged that they understood the benefits of the land trust.

After hearing all of the evidence, the trial court concluded that the parties were engaged in a joint venture and granted plaintiff’s petition to enforce a constructive trust.

We initially note that defendant cites sparse authority for the proposition that no joint venture existed. Notwithstanding that fact, defendant asserts that the evidence in the record does not show an intent on defendant’s part to have a joint venture.

While it is true that no written agreement establishing a joint venture existed between plaintiff and defendant, that fact alone is not controlling. Proof of the existence of this relationship may be made by the evidence of surrounding circumstances without evidence of any formal agreement. (Polikoff v. Levy (1965), 55 Ill. App. 2d 229, 204 N.E.2d 807, cert. denied (1965), 382 U.S. 903, 15 L. Ed. 2d 156, 86 S. Ct. 237.) Although defendant suggests that the lack of a formal agreement supports his argument that there was no intent to engage in a joint venture, the facts do not support that conclusion.

The record discloses that attorney Bisaillon advised defendant before the closing that the arrangement between the parties was a SO-SO partnership. Attorney Bisaillon’s testimony was corroborated by plaintiff’s testimony. Defendant did not raise opposition to the characterization of the relationship. Additionally, Lucy Minyo testified that she was a witness to the conversation where defendant agreed to the 50-50 arrangement. Defendant went forward with the purchase and accepted plaintiff’s $200 monthly contributions.

In Russell v. Klein (1975), 33 Ill. App. 3d 1005, 339 N.E.2d 510, the defendant and plaintiff were engaged in the rehabilitation of property owned by defendant. Defendant testified that she and plaintiff jointly agreed to contribute financially to the rehabilitation of the property. Plaintiff was to contribute in cash approximately the same amount as defendant’s contribution, which was her equity in the property. Plaintiff issued six checks for payment of various expenses in developing the property, but argued that the money he expended was a loan to defendant. The appellate court held that the trial court properly determined the parties had entered into a joint venture.

In this case, nowhere in the record is there testimony that the terms of the agreement between the parties were required to be in writing in order that they be binding. Moreover, defendant’s explanation that plaintiff provided the down payment and arranged for the closing simply to repay a debt owed to defendant is unpersuasive. What is clear from the facts is that plaintiff expended $4,600 on the down payment to purchase a building from his personal funds. Both of the parties contributed $200 monthly to cover the taxes, mortgage, utilities and maintenance of the building. They also shared in the minor repairs and installation of fixtures for the building. The trial court found that there was an agreement to share in the profits and losses from the property, and that defendant believed from the beginning that such an agreement existed. The court also found the testimony of attorney Bisaillon extremely credible.

Based upon the foregoing, we cannot say that the court’s determination that a joint venture existed was against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE NEGRON, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—0864
    Opinion filed September 30, 1991.
    Rehearing denied November 15, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Julie M. Campbell and Thomas N. Swital, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Christine Perille, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant Jose Negron was convicted of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)), armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—2(a)), and conspiracy to commit robbery. (Ill. Rev. Stat. 1987, ch. 38, par. 8—2.) He was sentenced to 22 years’ imprisonment for the murder conviction, 22 years’ concurrent incarceration for the armed robbery conviction, and 2 years’ concurrent imprisonment for the conspiracy conviction. Defendant raises multiple issues upon review, challenging: (1) the trial court’s denial of defendant’s motion to suppress his inculpatory statements to police; (2) the trial court’s decision to allow two juries to hear certain evidence pertaining both to defendant’s trial and to the simultaneous trial of defendant’s codefendants; (3) the trial court’s admission into evidence of various testimony regarding defendant’s involvement in the crime; (4) the trial court’s exclusion of certain evidence offered by defendant in his defense at trial; (5) a remark by the prosecutor during closing argument to the jury; and (6) the sufficiency of the evidence against defendant to prove his guilt beyond a reasonable doubt. Defendant also argues that his conviction and sentence for conspiracy to commit robbery must be reversed, because he was also convicted for the offense of armed robbery. We affirm in part and reverse in part.

Defendant was tried and convicted for the murder and armed robbery of Frank Masic (Masic) that occurred on approximately February 15, 1987, in the victim’s apartment in the City of Chicago. Prior to trial, the defendant moved to suppress his incriminating statements to authorities regarding his involvement in the incident. Following a hearing, the trial court denied defendant’s motion to suppress. The evidence presented at the motion to suppress hearing is discussed below with respect to defendant’s claim on appeal that the trial court’s denial of his motion to suppress was against the manifest weight of the evidence.

Also prior to trial, the court allowed defendant’s motion to sever his case from that of his codefendants, Edwin Marrero, Angel Gonzalez, and Isabelo Nieves. Nieves was tried separately in a bench trial, and Marrero and Gonzalez were tried jointly by a single jury. Defendant was tried separately by a single jury. However, the court permitted the State to present to both the defendant’s jury and the MarreroGonzalez jury certain evidence that was common to these defendants.

The evidence heard by the defendant’s jury and the Marrero-Gonzalez jury consisted of the following: On February 17, 1987, Chicago police officer Ellen Weiss testified that in response to a report that Masic was missing, she went to Masic’s apartment but found no signs of forced entry. She also searched the area around the apartment building, unsuccessfully, for Masic’s automobile.

The next day, Helen Rosenberg, who owned the apartment building in which Masic lived, gave the key to Masic’s apartment to Brandecker, a maintenance worker at the apartment building, who unlocked the door to Masic’s apartment. As the door opened, Brandecker noticed that the wall was covered with blood. He closed the door to the apartment and the police were notified. Shortly thereafter, Brandecker opened the door to Masic’s apartment for Officer Kenneth Kasai, who entered the apartment. Officer Kasai found a body lying in a pool of blood, notified his superiors, and remained in the apartment to preserve the scene.

Detective Carey Orr, who was in charge of the investigation, arrived on the scene and found that the apartment was in disarray and that there was a great deal of blood on the floor and walls. He testified that Masic’s body was found on the floor in the bathroom, with his front pants pockets pulled inside out. Detective Orr also noticed that the victim had a puncture wound in his neck. The detective testified that he learned that Masic owned a car with the license plate FM 2004.

The following day, on February 19, 1987, Officer Kathleen Butzen received a call regarding a grey 1986 Chevy Celebrity with the license plate number FM 2004. She located the car near Sawyer and Emmett Streets in Chicago, and contacted the appropriate police personnel. Officer Frank Kajari and Detective Thomas Sappanos inspected the automobile and found that the license renewal indicated the car was owned by Masic. They also found that the trunk was empty and that there was no spare tire in the automobile.

Dr. Jo Ann Richmond, a forensic pathologist who performed the autopsy, testified that in her opinion, Masic died due to bleeding from five stab wounds, especially since one of the wounds pierced the jugular vein and voice box. Because of the extent of decomposition of the body, Dr. Richmond indicated that Masic probably died closer to February 14, 1987, the last date on which Masic was seen alive, although his body was found four days later, on February 18, 1987.

After the State presented this common evidence to both the defendant’s jury and the Marrero-Gonzalez jury, the State offered the following evidence regarding the defendant’s involvement in the Ma-sic armed robbery/murder. This evidence was heard solely by the jury empaneled to determine defendant’s guilt.

Efrain Sanchez Rivera (Rivera) testified that after he joined the Spanish Cobras gang in January 1986, he began selling marijuana for “Fat Man,” who lived at Sawyer and Emmett Streets in Chicago. Rivera would keep a certain amount from each sale and give the remainder to “Fat Man” or “Blonco.” Rivera identified “Blonco” in court as the defendant.

Rivera stated that in mid-February 1987, he was dealing marijuana outside “Fat Man’s” apartment. He saw a grey car parked outside the apartment, and two members of the Spanish Cobras, “T.C.” and “Tony Armor,” near the car. Rivera then saw “Fat Man” exit the driver’s side of the car, and saw defendant, along with other persons known to Rivera as “Poppo,” “Little Man,” and “Tuffy,” get out of the car. “Fat Man” gave Rivera the keys to the apartment and told Rivera to go upstairs to bag marijuana. Rivera did as he was directed.

After Rivera had been in the apartment for 10 or 15 minutes, he went to the living room window and saw “Poppo” and “T.C.” open the trunk to the grey car and take out a spare tire. “Fat Man” took off his jacket and Rivera noticed that the T-shirt “Fat Man” was wearing appeared to have blood smeared on it. Rivera saw “Fat Man” remove the T-shirt and place it in the rim of the tire. Rivera then saw “Fat Man” walk with “T.C.” and “Poppo,” who were carrying the tire, to the gangway where a dumpster was located. Rivera heard a slam and saw “Poppo” and “Fat Man” walk back to the apartment. The pair then entered the living room and began talking. Rivera heard “Poppo” ask “Fat Man,” “Why did you stab the man, like that?” Rivera asked them “what man[?]” and “Poppo” responded that it was “none of your [Rivera’s] *** business.” Thereafter, “Poppo” told “Fat Man” to “get the little shorty out of here,” and “Fat Man” told Rivera to go eat something. Rivera left the apartment and went home, passing the grey car that he had seen defendant and the others exit shortly before. He noticed that the automobile was a four-door Chevrolet with a license plate that began “FM 2.”

Rivera returned to “Fat Man’s” apartment building the following afternoon. At that time, Rivera noticed that there were police around the grey car. He did not tell the police what he had seen or heard, since he was scared, he thought a “contract” would be put out on him and his family if he spoke to the police, and he had marijuana in his possession.

The police questioned Rivera regarding the Masic murder in June 1987, and he revealed in substance the circumstances to which he similarly testified at trial. This statement was reduced to writing and signed by Rivera. Rivera also testified before a grand jury regarding what he had seen and heard in February 1987.

Rivera admitted at trial that he also had given statements to the assistant public defenders who represented “Fat Man” and “Poppo.” These statements were substantially different than the statements Rivera made to officers of the Chicago police department and to the grand jury. The record does not contain a transcript of Rivera’s statements to the assistant public defenders. However, at trial, Rivera acknowledged that he told the assistant public defenders that he had lied to police about what he had seen and heard in February 1987 regarding the Masic armed robbery/murder.

In addition, Rivera testified at trial that he lied to the assistant public defenders with respect to what he had witnessed in February 1987 because he was afraid that a “contract” would be put out on him by “Fat Man,” “Poppo,” “Little Man,” or “Tuffy.” Rivera knew at that time that all of these individuals, with the exception of “Tuffy,” had already been arrested for the Masic armed robbery/murder. Rivera admitted that at the time he made his statements to the assistant public defenders, he was on probation, had previous convictions for robbery, burglary, and sexual assault, and also had a pending robbery case. Rivera further acknowledged that his father, who was present when he made his statements to the assistant public defenders, was being represented by the public defender’s office on a “sawed-off shotgun” case.

The State also presented testimony regarding inculpatory statements defendant made during police questioning regarding the Masic armed robbery/murder. Officer William Rose testified that in June 1987, he noticed defendant outside a house at approximately 1543 North Taiman. The officer had been advised to find several individuals, including defendant, to determine if they would voluntarily cooperate in the investigation. Officer Rose spoke to defendant, who agreed to go to the police station. Defendant asked what the police wanted to discuss and was informed that the investigation pertained to a homicide.

When they arrived at the station, defendant was turned over to Lieutenant Edward Kijowski. The lieutenant introduced defendant to Detective Thomas Blomstrand as one of the detectives assigned to the homicide. Following the introduction, defendant defecated in his pants and was allowed to use a washroom. Thereafter, he was taken into an interrogation room with Detective Blomstrand and Detective Patrick Flynn, who were working together on the Masic incident. Defendant told the detectives that he “wanted to tell the truth about the white man who had been stabbed in February of last year, ’87.”

Detective Flynn advised defendant of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Defendant responded that he understood after each sentence what was read to him regarding these rights. Defendant waived his Miranda rights and agreed to discuss the Masic incident with the detectives. Defendant identified Masic in a photograph as the person whom his friends had stabbed with a kitchen knife. Defendant also identified Masic’s car as the one his friends had been driving with Ma-sic. •

Defendant explained that on the day of the incident, he saw his friends driving Masic’s car. Masic was in the automobile with defendant’s friends. Defendant identified these friends as “Fat Man” (Edwin Marrero), “Tony Armor” (Harry Rodriguez), “Poppo” (Angel Gonzalez), “Tuffy” (Jaime Ruiz), “Little Man” (Isabelo Nieves), and “T.C.” (Rudy Ramirez). Defendant said that everyone exited the automobile and went into an apartment. Thereafter, “Poppo” said that “the old boy [Masic] had money which maybe we should take him back to his place and get his money.” The group left in Masic’s car, while defendant followed them on a motorcycle. When they reached Masic’s apartment, “Tony Armor” and “Poppo” went into the apartment with Ma-sic. “Tony Armor” then let the others into the apartment a short time later.

When defendant reached the apartment, he heard “Poppo” demanding money of Masic. Defendant saw “Tony Armor” grab a knife, and “T.C.” hold Masic’s arms while “Tony Armor” stabbed the victim. Defendant testified that Masic asked them to “take all my stuff but please don’t kill me.” “Fat Man” then “screamed” at “Tony Armor” and took the knife. “Tony Armor” took the victim’s watch from his wrist while the others searched the apartment for items of value to take. “Fat Man” then told defendant and “Little Man” to go outside and watch for the police. Defendant stated that he could hear Masic “screaming” as defendant left the apartment. Thereafter, everyone except Masic came out of the apartment and drove away in Masic’s car.

Defendant gave a subsequent oral inculpatory statement to Assistant State’s Attorney Diane Meyer and Detective Blomstrand. Both Assistant State’s Attorney Meyer and Detective Blomstrand testified at trial regarding this statement, in which defendant gave a substantially similar account of the incident. Following his second oral inculpatory statement, defendant initially agreed to give a court-reported statement. However, he later changed his mind and requested an attorney. Because of his request for counsel, defendant was not questioned further by the authorities regarding his involvement in the Ma-sic homicide.

In his defense, defendant presented the testimony of his mother, Anna Rodriguez (Rodriguez), who testified that defendant was 18 years of age, could not read or write, and took special education classes. Rodriguez stated that defendant did not own a motorcycle and that she had never seen him driving a motorcycle.

Thereafter, the defense proceeded by stipulation that none of the fingerprints from Masic’s apartment matched those of defendant or the other defendants and that Detective Orr distributed a flyer regarding a $10,000 reward offered in this case during the early part of March 1987. A police search of Masic’s apartment revealed $409 in currency.

Based upon this evidence, the jury found defendant guilty of murder, armed robbery, and conspiracy to commit robbery. The trial court denied defendant’s motion for a new trial, and sentenced him to 22 years’ imprisonment for the murder conviction, a concurrent 22-year term for the armed robbery conviction, and a concurrent 2-year term of incarceration for the conspiracy charge. Defendant’s appeal followed.

I

Defendant argues that the trial court erred when it denied his pretrial motion to suppress his incriminating statements. He claims that the trial court’s determination that his statements were voluntary is against the manifest weight of the evidence.

At the hearing on defendant’s motion to suppress, Officers Palasz and Rose testified that they had been advised to locate several individuals, including defendant, to ask for their voluntary cooperation in the investigation of the Masic armed robbery/murder. The officers stated that at approximately 2 a.m. on June 25, 1987, they noticed defendant outside a home on North Taiman. They asked defendant to talk to investigating officers regarding an armed robbery/murder, and defendant agreed, stating that he knew “nothing about anyone getting killed.” Defendant voluntarily accompanied the officers to the stationhouse for questioning. When they arrived at the police station, Officers Palasz and Rose turned defendant over to Lieutenant Kijowski. The officers stated that defendant was not handcuffed, and that they did not strike the defendant or make any misrepresentations to him regarding the investigation.

Lieutenant Kijowski testified that he met defendant upon defendant’s arrival at the station with Officers Palasz and Rose. Lieutenant Kijowski introduced defendant to Detective Blomstrand, who was investigating the incident. Immediately after this introduction, defendant defecated in his pants, and the officers directed defendant to a washroom. Defendant exited the washroom after approximately five minutes and told Lieutenant Kijowski and Detective Blomstrand that he wanted “to tell you all about what happened right now.”

Detective Flynn, who was working with Detective Blomstrand, joined Detective Blomstrand and escorted defendant to a conference room. Detective Flynn advised the defendant of his Miranda rights. Defendant responded that he understood each right and that he “wanted to tell the truth.” Defendant then made a statement regarding the homicide that took approximately 15 to 20 minutes. According to the officers, defendant never indicated that he wanted to remain silent or that he wanted an attorney. Both detectives testified that defendant was not physically coerced and that they made no misrepresentations to him during the interrogation. Following defendant’s inculpatory statement, the detectives left the room.

Later, at approximately 10:15 a.m., Detective Blomstrand and Assistant State’s Attorney Diane Meyer returned to interview defendant. The assistant State’s Attorney informed defendant of his Miranda rights. Defendant stated that he understood each right, and agreed to talk about the incident. Defendant then made an incriminating statement that lasted approximately 15 to 20 minutes. During the interview, defendant did not indicate that he wanted to remain silent or speak to an attorney. Both the assistant State’s Attorney and the detective testified that defendant was not struck, that no misrepresentations were made to defendant, and that he was not told that others had implicated him in the investigation.

When defendant completed his oral statement, Assistant State’s Attorney Meyer asked if defendant would make a court-reported statement. Defendant responded that he would. The assistant State’s Attorney left the room to find a court reporter. When she returned in the company of a court reporter, defendant informed her that he wanted to see a lawyer. Defendant was not questioned further by authorities.

Rodriguez, defendant’s mother, testified in his defense. She stated that defendant was enrolled in special education classes and did not comprehend when spoken to. Initially, Rodriguez stated that defendant would tell her when he did not understand something. Later, she testified that defendant would not answer if he did not understand.

Mirabel Bermudez (Bermudez), defendant’s sister, stated that she saw defendant enter a dark blue police car parked on Taiman at approximately 2 a.m. on June 25, 1987. Someone told her that defendant was being taken in for questioning and would return shortly. Bermudez waited at the location until 3:30 a.m., and then began searching for defendant. She drove to a police station, and, while sitting at a street light, saw her brother sitting in the back seat of a dark blue detective’s car near the station. It was approximately 8 a.m. Bermudez testified that she ran toward the automobile and told the officers that she was defendant’s sister. A detective responded that defendant was being taken in for questioning, and Bermudez saw the officers place handcuffs on the defendant. Bermudez testified that defendant was pale, his nose was bleeding, and there was dried blood on his shirt. Bermudez also testified that defendant did not comprehend when spoken to and had to be addressed as though he were a child.

In rebuttal to defendant’s evidence at the motion to suppress hearing, Officers Rose and Palasz testified that defendant was only in their squad car, which was light blue in color, when they met defendant at approximately 2 a.m. and drove him to the police station. The officers testified that at approximately 7 a.m., they were transporting another person, Harry Rodriguez, to the station, and that they remained at the station until 9 a.m. Officer Palasz testified that he did not see defendant’s sister that morning.

Detectives Flynn and Blomstrand testified that defendant was under arrest after 2:45 a.m. following his inculpatory statements, and that defendant was not thereafter removed from the police station. Detective Flynn asked defendant if he wanted anything during the early morning hours, but defendant refused. Detective Blomstrand also offered food, which defendant declined.

The parties stipulated that a paramedic at Cook County Jail conducted a physical examination of defendant on June 26, 1987, and noted no injuries on the defendant. It was also stipulated that the defendant told the paramedic that the defendant did not have any complaints regarding his police custody. A photograph of the defendant, taken on June 26, was introduced and admitted into evidence.

Frank Marino, an assistant Cook County public defender who represented a codefendant, testified that he talked to Bermudez on October 21, 1987. Marino did not recall Bermudez informing him that she saw her brother get into a car at 2 a.m. According to Marino, Bermudez simply advised him that she saw defendant in the morning at the police station.

The trial court determined that, given the totality of the circumstances, the defendant’s statements to authorities were given voluntarily. As a result, the trial court denied the defendant’s motion to suppress.

A defendant’s statement is involuntary if the evidence reveals that his will was overborne at the time the statement was made. (People v. House (1990), 141 Ill. 2d 323, 566 N.E.2d 259.) In order to determine whether a statement was voluntary, the trial court must consider the totality of the circumstances surrounding the making of the statement, including such factors as the age, education and intelligence of the accused, the length of the detention and the duration of the questioning, whether the accused was advised of his constitutional rights, and whether the accused was subjected to any physical mistreatment. (People v. Terrell (1989), 132 Ill. 2d 178, 547 N.E.2d 145.) A trial court’s determination that a defendant’s statement was voluntary is subject to reversal on appeal only if the record shows that this finding was against the manifest weight of the evidence. People v. Redd (1990), 135 Ill. 2d 252, 553 N.E.2d 316.

Based upon a review of the record, we find no sound basis to disturb the trial court’s conclusion that defendant’s incriminating statements to authorities were voluntary. The evidence discloses that defendant agreed to accompany the police to the stationhouse at approximately 2 a.m. on June 25, 1987. When at the police station, at approximately 2:30 a.m., defendant was advised of his Miranda rights, acknowledged that he understood these rights, and waived his Miranda rights prior to police questioning. Defendant told Chicago police detectives of his involvement in the Masic armed robbery/murder. Thereafter, at approximately 10:15 a.m., defendant was questioned by an assistant State’s Attorney, who began by advising defendant of his Miranda rights, which defendant waived prior to his discussion with the assistant State’s Attorney. Although defendant initially agreed to give a court-reported statement, he then changed his mind and requested counsel. He was not questioned further regarding his involvement in the incident. The record shows that defendant was not threatened, coerced, or deceived into making his incriminating statements and that he was offered food and drink while held by the authorities. Given these considerations, we conclude that the record supports the trial court’s determination that defendant voluntarily made incriminating statements to authorities regarding his involvement in the Masic armed robbery/homicide.

Defendant points to particular circumstances surrounding his interrogation to demonstrate that his incriminating statements could not have been voluntary. The trial court considered these matters, yet determined that defendant’s statements were voluntary. We cannot say that the isolated circumstances upon which defendant relies are adequate basis to reverse the trial court’s factual determination based upon the totality of the circumstances surrounding defendant’s inculpatory remarks.

Specifically, defendant contends that his statements could not have been voluntary, because he had defecated in his pants when he first entered the stationhouse and had to remain in soiled clothing during subsequent police interrogation. The record does not disclose that defendant complained to the officers, or that defendant requested medical treatment, or that defendant even asked for a change of clothing. During the interviews with authorities, defendant was fully informed of and waived his Miranda rights, and then gave his incriminating remarks. On these facts, we cannot say that the defendant’s will was overborne when he made his incriminating comments.

Defendant also claims that his statements were not voluntary, because the evidence presented at the motion to suppress hearing revealed that defendant was of low intelligence, was educably mentally handicapped, and had poor oral and written comprehension. The intelligence of the defendant is not controlling, but is only one factor relevant to a determination of whether the defendant’s statements were voluntary. (People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958; People v. Reid (1990), 136 Ill. 2d 27, 554 N.E.2d 174.) It is also noteworthy that defendant requested counsel following his oral statement to the assistant State’s Attorney. In view of this request, we are unable to find that defendant was unable to comprehend his waiver of Miranda rights or that his decision to speak to authorities was otherwise involuntary.

In addition, defendant notes that according to the testimony of his sister, Bermudez, defendant was physically assaulted by authorities during police questioning. The trial court did not give credence to the testimony of defendant’s sister, which was contradicted by the testimony of the police officers. Upon review, we cannot say that the trial court erred when it found the police officers’ testimony more credible than that of defendant’s sister.

For the reasons stated above, we find defendant’s arguments insufficient ground to reverse the trial court’s denial of defendant’s motion to suppress his inculpatory statements.

II

The defendant maintains that the trial court committed reversible error when it allowed his jury to hear certain common evidence also being simultaneously presented to the Marrero-Gonzalez jury.

The trial court is empowered to hold partial, simultaneous trials of multiple codefendants. (Ill. Rev. Stat. 1987, ch. 38, par. 114—8.) Such a procedure is “permissible provided the defendant is given every opportunity to present a complete defense to his own jury, there is no event which confused the jury or affected its ability to render a fair decision, and the record shows that the jurors were adequately prepared for the procedure. [Citation.]” (People v. Johnson (1986), 150 Ill. App. 3d 1075, 1089-90, 502 N.E.2d 304.) Also, “[a]bsent a showing of prejudice, a reviewing court will not speculate as to any impropriety in the procedure. [Citation.]” Johnson, 150 Ill. App. 3d at 1090.

According to the record in the instant cause, the defendant’s jury and the Marrero-Gonzalez jury were selected from separate venires. Separate opening statements were made to each jury. Also, both juries were present in the courtroom only when the State offered evidence relevant to defendant, Marrero, and Gonzalez. Thereafter, the Marrero-Gonzalez jury was excused, and the defendant’s jury heard only evidence relevant to the cause against defendant. Separate closing arguments were made to each jury, and each was given separate instructions. The trial court repeatedly advised the defendant’s jury of the nature and purpose of the procedure it adopted, and informed the jury that it should consider the evidence only as it affected the determination of defendant’s guilt. Under these circumstances, we cannot say that the procedure adopted by the trial court amounted to an abuse of discretion.

Defendant claims that this procedure prejudiced his defense at trial, because it suggested to his jury that all of the defendants must have been involved in the crime. It was primarily the defendant’s incriminating statements that revealed to the jury the multiple defendants’ joint participation in the crime, however. As a result, the procedure followed by the trial court did not improperly suggest to the jury that the various defendants had jointly participated in the Masic armed robbery/murder.

Defendant also asserts that given the procedure adopted by the trial court, his jury should have been advised that both Marrero and Gonzalez were acquitted of the Masic armed robbery/murder. Evidence that another defendant has been acquitted is admissible when the State’s case against both defendants is identical. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671; People v. Winchell (1987), 159 Ill. App. 3d 892, 512 N.E.2d 1298.) The evidence against defendant was not identical to that admitted against Marrero and Gonzalez; it was this lack of identity that required the procedure followed by the trial court in the case at bar. Because of this lack of identical evidence against the various defendants, we find no error in the trial court’s refusal to inform defendant’s jury that defendants Marrero and Gonzalez were acquitted of the Masic armed robbery/murder.

Ill

Defendant challenges the trial court’s admission into evidence of various testimony from State witnesses regarding defendant’s involvement in the Masic armed robbery/murder.

Specifically, the defendant claims that he was deprived of a fair trial when the State was permitted to elicit testimony from Rivera to the effect that Rivera sold drugs for defendant and “Fat Man.” The record indicates that defendant did not object to this testimony at trial. Defendant also argues that the trial court erred in allowing Rivera to testify that he had made prior consistent statements to the police regarding what Rivera had seen in February 1987 with respect to the Masic armed robbery/murder. However, defendant did not raise this issue in his post-trial motion for a new trial.

It is well established that, in order to preserve a question for review, the defendant must raise his objection both at trial and in a post-trial motion for a new trial. If defendant fails to object, or if he fails to preserve the question in his motion for a new trial, the issue is waived on review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Because defendant did not properly raise his objections to these portions of Rivera’s testimony, we need not consider these matters in this appeal.

The defendant’s arguments with respect to these aspects of Rivera’s testimony may be reviewable according to the plain error rule. (107 Ill. 2d R. 615(a).) “The plain error doctrine may be invoked in criminal cases to review an error which has not been properly preserved for review (1) where the evidence is closely balanced, or (2) where the error is of such magnitude that the defendant was denied a fair trial. [Citation.]” People v. Nitz (1991), 143 Ill. 2d 82, 108, 572 N.E.2d 895.

In our view, any alleged error in the admission of these challenged portions of Rivera’s testimony did not deprive defendant of a fair trial. The evidence against the defendant was not closely balanced. Defendant gave two incriminating statements admitting to his participation in the Masic armed robbery/murder. The condition of the crime scene, and the fatal wounds inflicted upon the victim, corroborated defendant’s statements that Masic had been murdered and robbed with a deadly weapon. In light of these circumstances, admission of the testimony from Rivera which defendant questions upon review did not amount to plain error. See People v. McGee (1987), 160 Ill. App. 3d 807, 513 N.E.2d 885; People v. Borges (1984), 127 Ill. App. 3d 597, 469 N.E.2d 321.

Defendant also claims reversible error in Rivera’s testimony that Rivera heard “Fat Man” and “Poppo” discussing the Masic armed robbery/murder. In addition, defendant contends that Rivera should not have been permitted to testify that his father had a “sawed-off shotgun” charge pending against him, or that Rivera’s father was being represented by the public defender regarding this charge.

Defendant asserts that this testimony was inadmissible hearsay. The admission of hearsay evidence is harmless error when there is overwhelming evidence of defendant’s guilt and no reasonable possibility that the jury’s verdict would have been different if the hearsay had been excluded. People v. Miles (1988), 176 Ill. App. 3d 758, 531 N.E.2d 891.

We conclude that any alleged error in admission of this testimony was harmless. The defendant was not referred to in the discussion between “Fat Man” and “Poppo.” The circumstances surrounding Rivera’s father’s representation in a criminal matter by the public defender were not directly pertinent to the elements of the offenses for which defendant was charged. In addition, as stated above, there was substantial evidence of the defendant’s guilt. Thus, we cannot say that the jury’s verdict would have been different if the testimony had been excluded. See People v. Phillips (1989), 186 Ill. App. 3d 54, 541 N.E.2d 1298; People v. Columbo (1983), 118 Ill. App. 3d 882, 455 N.E.2d 733; People v. McInnis (1980), 88 Ill. App. 3d 555, 411 N.E.2d 26.

Lastly, defendant claims reversible error in the State’s elicitation of testimony to the effect that after defendant made his inculpatory statements, Detective Blomstrand told Officer Rose to arrest the remaining defendants because defendant’s statements gave the officer probable cause for these arrests. The trial court promptly sustained the defendant’s objection to this testimony, and thereby cured any potential prejudice to the defendant in this regard. (People v. Paino (1985), 137 Ill. App. 3d 645, 484 N.E.2d 1106.) As a result, defendant’s argument on this point is insufficient ground to grant him a new trial.

IV

Defendant also contends that the trial court’s exclusion of certain evidence offered in his defense deprived him of a fair trial.

First, defendant claims that the trial court should have permitted him to present evidence to the jury showing that, after defendant gave his inculpatory statements and was charged for the Masic armed robbery/murder, Chicago police officers went to the defendant’s home to ask defendant’s mother to persuade him to testify against the codefendants. Defendant also asserts that he should have been allowed to elicit testimony proving that an assistant State’s Attorney had, without notice to defense counsel, attempted to persuade the defendant to testify against his codefendants.

Defendant asserts that this evidence was significant because it substantiated his defense theory that the police and prosecutors were willing to claim that defendant made incriminating statements, which defendant in fact never made, in their efforts to persuade defendant to “turn State’s evidence.” Generally, evidence is admissible when its probative value outweighs any prejudicial impact upon the jury. (People v. Gonzalez (1991), 142 Ill. 2d 481, 568 N.E.2d 864.) We cannot say that the excluded testimony was probative of whether the police fabricated defendant’s incriminating statements. There is nothing in the record to indicate that the police or the assistant State’s Attorney, when they attempted to persuade defendant to testify against the other defendants, ever acknowledged or implied that defendant’s incriminating statements were fabricated. Consequently, we find no reversible error in the trial court’s ruling.

Defendant also argues that the trial court should have permitted him to present evidence that the police authorities wanted to question Rivera because Rivera’s name appeared on a police list of “known fruit hustlers.” The trial court excluded this evidence because it determined that its probative value was outweighed by the prejudicial effect that would result from disclosure of the apparent sexual orientations of Rivera and the victim. We can find no abuse of discretion in this ruling. See Gonzalez, 142 Ill. 2d 481.

Defendant argues that the trial court should have permitted the jury to consider, dining its deliberations, the tape of Rivera’s statements to assistant public defenders regarding what Rivera saw in February 1987. It is within the trial court’s sound discretion to determine whether evidence should be submitted to the jury during its deliberations. (See, e.g., People v. Rogers (1988), 123 Ill. 2d 487, 528 N.E.2d 667; People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220.) In the case at bar, the trial court concluded that allowing the jury to rehear the tape of Rivera’s statements would have “unduly highlight[ed] [the testimony] of that witness who was lengthy on direct and cross while he was on the stand.” Moreover, the court decided that it would consider sending the tape back to the jury should the jury request it. Given these circumstances, we find no error in the trial court’s ruling.

Y

Defendant contends that he was deprived of a fair trial when the assistant State’s Attorney remarked, during rebuttal closing argument, that the defendant’s theory of innocence was not credible because “[w]ho testified other than the stipulations on behalf of the defense that other ***.” The trial court promptly sustained defendant’s objection to the prosecutor’s remarks. By so doing, the trial court cured any prejudice accruing to defendant from this comment. (See People v. Gonzalez (1991), 142 Ill. 2d 481, 568 N.E.2d 864.) Also, the trial court instructed the jury inter alia that (1) closing argument should not be considered evidence, and (2) the defendant’s decision not to testify should not be considered against the defendant in determining whether he was guilty of the offenses for which he stood trial. In light of these considerations, the single remark by the prosecutor did not cause substantial prejudice to the defendant and is insufficient ground to grant him a new trial. See People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.

VI

Defendant argues that the evidence against him was insufficient to prove him guilty beyond a reasonable doubt of murder and armed robbery. Because defendant’s conviction for conspiracy is vacated below, we do not consider the sufficiency of the evidence with respect to this charge.

The standard of review for a defendant’s reasonable doubt argument is well established. On appeal, our inquiry is limited to whether the evidence, when considered in the light most favorable to the State, supports the jury’s determination that defendant was guilty of the armed robbery and murder of Masic. It is not the province of this court to reweigh the evidence or resolve conflicts in the testimony of the witnesses. Rather, we must decide whether the State’s evidence is so unsatisfactory or improbable that there remains a reasonable doubt of the defendant’s guilt. See People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.

Applying these principles, we find the State’s evidence sufficient to support the determination that defendant was guilty of the Masic armed robbery/murder. According to defendant’s two incriminating statements, defendant participated with the other defendants in going to Masic’s apartment with the intent to rob the victim. When they arrived at the apartment, defendant stood watch while other defendants robbed and killed Masic. Defendant’s incriminating statements were corroborated by the condition of Masic’s apartment, which revealed that Masic had been stabbed by a knife and that the apartment had been ransacked with the intention of taking items therefrom. (See People v. Neal (1985), 111 Ill. 2d 180, 489 N.E.2d 845.) Consequently, the State’s evidence amply justified the jury’s verdicts in the instant cause.

VII

Defendant correctly asserts that his conviction for conspiracy to commit robbery should be reversed, because he was also convicted for the offense of armed robbery. A person cannot be convicted of both an inchoate offense and the principal offense. (Ill. Rev. Stat. 1987, ch. 38, par. 8—5; People v. Walker (1981), 84 Ill. 2d 512, 419 N.E.2d 1167.) Consequently, we reverse defendant’s conviction for conspiracy to commit robbery and the sentence imposed therefor.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed in part and reversed in part.

Pursuant to the State’s request and in accord with People v. Nicholls (1978), 71 Ill. 2d 166, and People v. Agnew (1985), 105 Ill. 2d 275, we hereby assess defendant $75 as costs for this appeal and incorporate it as part of our judgment.

Affirmed in part; reversed in part.

JIGANTI, P.J., and LINN, J., concur.