author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL BUIE, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—2166
    Opinion filed November 5, 1992.
    Rehearing denied January 14,1993.

      Randolph N. Stone, Public Defender, of Chicago (Julie M. Campbell, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Christine Cook, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant was found guilty of murder and armed robbery and sentenced to natural life imprisonment for murder, and a 30-year concurrent sentence for armed robbery. On appeal, the defendant contends: (1) that his fourth amendment rights were violated when he was detained without probable cause and his confession should have been suppressed; (2) that his fifth amendment rights were violated because his confession was not voluntary; (3) the hair analyst expert made an improper scientific conclusion; (4) the hair expert’s findings were based on incorrect data; (5) that he was denied due process and the right to a fair trial when the expert’s report which was tendered to the defense before trial differed from the expert’s trial testimony; (6) that the trial court erred in denying the defendant’s motion for a directed verdict on the armed robbery count when the evidence failed to show that the force involved in the murder was related to the taking of property or money; (7) that his constitutional confrontation rights were denied when the State introduced inadmissible hearsay testimony and relied on that testimony during closing argument; (8) that the State failed to prove his guilt beyond a reasonable doubt; (9) that the trial court committed reversible error when it refused his challenge for cause to excuse a juror; (10) that the trial court abused its discretion when it found that the offense was accompanied by brutal and heinous behavior; and (11) that he was sentenced under a statute which violated his due process and equal protection rights.

We summarize the evidence from the record.

I.

PRETRIAL HEARING ON THE DEFENDANT’S MOTION TO QUASH ARREST AND SUPPRESS STATEMENTS

Detectives McGuire and Tansey were assigned to the victim’s murder investigation on August 17, 1986. They went to the victim’s home, where they found no signs of a forced entry. When they were inside the house, they found that the burglar alarm system had been ripped from the wall and had a blood smear on it. While proceeding down to the basement, they observed a long scratch mark along the right side of the wall along the stairs. At the bottom of the stairs, they found a metal ceiling hook. They found the victim in the basement lying facedown, her hands bound behind her with a nylon, and her mouth gagged with a nylon. She appeared to have died from a blunt head trauma. To the victim’s right was a toolbox and tools were strewn across the floor. The detectives proceeded to the second floor of the house, where they found the master bedroom ransacked.

Later that day while canvassing the area, the detectives spoke with the defendant, who resided two houses west of where the victim lived. The defendant told them that he saw the victim on August 15 at about 4 p.m. She had asked the defendant if he could fix a ceiling hook in her living room. The defendant told her to get the materials and then he would fix it.

The detectives also spoke to two of the victim’s co-workers. They told the detectives that the victim was scheduled to work on August 16 and 17. When she did not report to work, they went to her home, but no one answered the door. One of the victim’s co-workers also decided to go over to the defendant’s home to inquire about the victim. The defendant told her that he had fixed a ceiling hook in the victim’s living room on August 15. The co-worker also told the detectives that the defendant was vague and slow when speaking with her.

McGuire stated that he determined from his investigation that the defendant was the last person to see the victim alive. On August 18, Detectives Popovits and Robertson were assigned to investigate the victim’s murder and learned all of the aforementioned information from the previously assigned detectives.

On August 19 at 6 a.m., Popovits and Robertson went to the defendant’s home and identified themselves to the defendant as officers who were investigating the victim’s homicide. They requested that the defendant come to headquarters to be interviewed. They waited outside while the defendant retrieved his coat and the defendant rode in the back seat of their squad car. Both detectives testified that the defendant was not handcuffed at this time. After arriving at Area One headquarters, the defendant was seated in an interview room and was given his Miranda rights. The defendant told Popovits that the last time he had seen the victim was on August 15 at 4 o’clock when she asked him to hang a ceiling hook for her. The defendant went into her home, looked at the job, and told her that he would do the job the next day after she purchased the materials. The defendant consented to take a polygraph test. When the defendant was told that the test could not be scheduled until 9 a.m. that morning, the defendant said he wanted to help the police in any way he could. At 8:30 a.m., the defendant was given a polygraph examination and signed a statement that he was voluntarily submitting to that examination. After the results were analyzed, it was determined that the defendant failed the polygraph as to his participation in and knowledge of the victim’s murder.

The defendant agreed to be fingerprinted and to submit hair samples. In the interim, the detectives interviewed the defendant’s alibi witness, his girl friend, Adlena Bright. She told one officer that on the afternoon of August 15, she had smoked reefer with the defendant. She later told another detective that in the early morning and afternoon of August 15, she and the defendant ingested cocaine and reefer. The defendant’s account of the events of August 15 differed from Bright’s account. When confronted with the disparity, the defendant added that he had purchased and ingested cocaine several times on August 15. Later Bright told detectives that the defendant had tried to pawn a gold necklace to purchase cocaine.

On August 19, the defendant spoke with Detective Robertson and confessed to the victim’s murder. The defendant told Robertson that he wanted to relieve himself of the burden of what he had done. On August 20, the defendant agreed to give a court-reported statement in which he again confessed to the victim’s murder. The defendant also requested to direct the detectives to the location of his bloody clothes and items which he took from the victim’s home. The defendant accompanied the detectives to several locations but nothing was recovered.

The defendant testified that the detectives initially told him that he had to go to the police station for questioning. He stated that he wanted to make a phone call but the detectives would not allow it. He was handcuffed and brought to the station. At the station, he was not allowed to make a phone call. He stated that he was never read his Miranda rights. When he was asked to take a polygraph test, the defendant wanted to go home first, but the detectives would not allow him to do so. The defendant further testified that the polygraph examiner slapped him and hit him in the chest with a closed hand. Another officer pushed him against the wall. When he was brought back to the interview room, he was handcuffed to the wall. The defendant stated that he was not given any food and was not allowed to make a phone call. Detective Robertson told the defendant that he was making him “look like an ass” in front of his boss and then “beat the shit” out of him. Robertson made the defendant get on his knees while he was still handcuffed to a ring on the wall and hit him in the stomach. Robertson pushed him onto the floor and was punching him with a closed fist and kicking him. Robertson told the defendant that he could “blow [his] fucking brains out and dump [him] somewhere around Indiana.” At that time, the defendant told Robertson that he would say anything he wanted him to say. Robertson told the defendant what to say in his confession to the victim’s murder. Robertson called Detective Thompson into the interview room and the defendant confessed to the murder. The defendant resisted giving a court-reported statement to the assistant State’s Attorney, but he was forced to cooperate.

It was stipulated that if Detective McGuire were called to the stand, he would testify that during his investigation on August 17, he spoke with Rosalie Pierce, who stated that she spoke with the victim on August 15 between 7 and 7:30 p.m. while the victim was working on her lawn.

It was further stipulated that the paramedic who examined the defendant at Cook County jail would testify that he conducted a physical examination of the defendant on August 21. The defendant told him that he was in good health. He had no bruises, cuts, swelling, or soreness on his body.

We first address the defendant’s contention that the trial court erred by denying his pretrial motion to quash arrest and suppress his confession. The defendant claims that he was detained without probable cause in violation of his fourth amendment rights and his confession should have been suppressed as a result of that unlawful seizure. The defendant argues that he was at the police station involuntarily and the police did not have probable cause to arrest him. The defendant points to the fact that he had five interviews during his 24-hour stay at the police station and at one point was handcuffed to the wall. He wanted to go home before his polygraph, but was not allowed to do so.

In determining whether an individual was under arrest, a trier of fact must determine whether a reasonable person in the same circumstances, innocent of any crime, would have concluded that he was not free to leave. (People v. Brown (1990), 136 Ill. 2d 116, 554 N.E.2d 216.) The test is objective and it is irrelevant whether the defendant believed he was under arrest or whether the police intended to detain the defendant against his will, unless that intent was conveyed to the defendant. (People v. Bury (1990), 199 Ill. App. 3d 207, 556 N.E.2d 899.) A reviewing court will not reverse the trial court’s finding on a motion to quash arrest unless that finding was manifestly erroneous. People v. Booker (1991), 209 Ill. App. 3d 384, 568 N.E.2d 211.

The trial court found that the defendant cooperated fully with the investigation and would have gone voluntarily to the police station if probable cause did not exist. We do not believe the trial court’s finding was manifestly erroneous. As we have discussed earlier in this opinion, the pretrial testimony demonstrates that Detectives Robertson and Popovits arrived at the defendant's home on August 19 and asked the defendant to assist them in their investigation of the victim’s murder. The defendant voluntarily agreed to go to with them to the police station. The detectives testified that the defendant was not handcuffed at that time. While the defendant’s version of what took place differed significantly from the testimony of the detectives, it is the function of the trial court to determine the credibility of the testifying witnesses and to resolve any conflict in their testimony. People v. Redd (1990), 135 Ill. 2d 252, 533 N.E.2d 316.

Moreover, we agree with the trial court’s finding that there was probable cause to arrest the defendant on August 19. Probable cause exists when the police possess enough evidence to lead a reasonable man to believe that a crime has been committed, and that the defendant committed it. (People v. Neal (1985), 111 Ill. 2d 180, 489 N.E.2d 845.) The totality of the circumstances known to the police officers must be considered. (People v. Montgomery (1986), 112 Ill. 2d 517, 494 N.E.2d 475.) A reviewing court must not disturb the trial court’s findings on probable cause unless they are manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.

Applying these principles, we conclude that the police had sufficient information to arrest the defendant. At the time the officers went to the defendant’s home, they knew he was one of the last people, if not the last person, to see the victim alive. The defendant had previously told the officers that the victim had asked him to fix a ceiling hook in her home on the day she was murdered and he agreed to do it once she purchased materials. The defendant had told the victim’s co-worker that he had already hung the ceiling hook in the victim’s home. The officers found a long scratch mark on the wall leading to the basement of the victim’s home and a metal ceiling hook at the bottom of the stairs. There was no sign of forced entry into the victim’s home. Based upon these facts, known to the police at the time they picked up the defendant, probable cause existed to believe the crime was committed and that the defendant committed the crime. Therefore, the trial court properly denied the defendant’s motion to quash arrest and suppress his confession.

The defendant further alleges that even if he was lawfully detained, his confession should have been suppressed because it was not voluntarily given.

A confession is voluntarily given if, after considering all of the circumstances in the record, it can be said that it was made freely and without compulsion. (People v. Hunley (1989), 189 Ill. App. 3d 24, 545 N.E.2d 188.) A trial court’s finding that a defendant’s confession is voluntary will not be overturned on review absent a showing that it is against the manifest weight of the evidence. People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984.

After reviewing the circumstances surrounding the defendant’s confession, we find the court’s determination of voluntariness was not against the manifest weight of the evidence. There was evidence that Miranda warnings were given before the defendant’s confession to Robertson and the assistant State’s Attorney. There was evidence that the various interview sessions were relatively brief, sufficiently separated in time from each other, and did not involve any threats or coercion. There was evidence that the defendant was fed before giving his statement. Moreover, the defendant’s confession included his assertion that he had not been mistreated during his time at the police station.

The defendant argues that he was threatened and beaten by police officers. Testimonial conflicts must be resolved by the trier of fact based upon the credibility of the witnesses. (People v. Matthews (1990), 205 Ill. App. 3d 371, 562 N.E.2d 1113.) The trial judge heard the testimonies of Thompson and Robertson, who asserted that the defendant was never threatened or beaten. Additionally, the judge heard the testimony of the assistant State’s Attorney who interviewed the defendant before he gave his court-reported statement. The attorney testified that the defendant’s appearance was normal, he did not appear to have any injuries, and he was not threatened in any way. The stipulated testimony of the paramedic who examined the defendant upon his jail admission stated that the defendant’s physical examination revealed no bruises, cuts, swelling, or soreness. The defendant told him that he was in good health and had no physical complaints. We do not believe the trial judge’s finding that there was no physical or psychological coercion upon the defendant by the officers is against the manifest weight of the evidence.

The defendant also argues that his statements were involuntary because he was 24 years old and lived in the United States for only seven years. The defendant lived in Israel for 13 years and Liberia for 7 years. It is evident from the record that the defendant understood and spoke English. There is no evidence that the defendant’s age or inability to understand English was used to compel his confession.

Accordingly, we cannot say that the determination of the voluntariness of the defendant’s confession is against the manifest weight of the evidence.

II.

TRIAL

At trial, the testimony of the detectives involved in the investigation and the victim’s co-workers was essentially the same as that previously summarized from the pretrial hearing. Additionally, the medical examiner who performed the autopsy on the victim testified to numerous injuries which were found on the victim’s face and neck. The victim’s skull showed extensive skull fractures on the base of her head, brain, and skull. The victim died as a result of severe cranial cerebral injuries caused by blunt trauma.

The victim’s husband testified that he was out of town on August 15. He telephoned his wife on August 16 in the afternoon, but there was no answer. He learned that his wife was dead while at a relative’s house in Tennessee. He testified that his wife always wore her wedding band, a pear-shaped cocktail ring, and a gold chain with her initial “B” on it. When he returned home, he observed that two pocket watches, cuff links, a ring, a camera and $100 in cash were missing. He also noticed that his hammer was missing from his toolbox. He observed that the burglar alarm was torn from the wall and he discovered a deep scratch in the wall along the stairs leading to the basement.

Maria Pulling, an expert in hair and fiber analysis, testified that she analyzed hair samples from the defendant’s girl friend, the defendant, and the victim. Pulling stated that she analyzed hair on the victim’s clothing and hair found among broken glass from her home. Pulling identified certain hairs to be consistent with the defendant’s known hair sample. Pulling opined that “[wjithin a reasonable degree of scientific certainty,” the hair originated from the defendant. Pulling also stated that all other persons could not be excluded but that she “would be hard pressed to find another individual within this region that exhibits those characteristics point for point.”

Detective Thompson testified that the defendant confessed the details of the victim’s murder to him. The defendant had a conversation with the victim about fixing a ceiling hook in her home. He knew the victim’s husband was out of town. He went over to her home on August 15. The victim went into the basement and got a hammer and a nail and brought it upstairs. The defendant asked her where the hook was. The victim told him that the hook was in the basement but that she could not reach it. The defendant went down to the basement with her and took the hook from a ceiling beam in the basement. They walked up the stairs with the defendant in front. When he reached the top of the stairs, he turned around and pushed her down the basement stairs to the floor. The victim was somewhat dazed and was reaching for a glass bottle. The defendant grabbed the bottle and hit the victim in the head with it until the bottle broke. He reached into his pants top where he had put the hammer and beat her in the head with it. He put the hammer and the bottle into a hag, went upstairs into the kitchen, and washed his hands at the kitchen sink. The defendant then went upstairs and ransacked the bedroom by throwing things from drawers onto the bed and floor to make it look like a robbery. The defendant also took a camera, a watch, some jewelry, and some money from the dresser. He went back downstairs and tied the victim’s hands with some nylons and also tied the victim’s mouth. The defendant took the victim’s necklace and ring. He went back upstairs and tore out the alarm system and turned on the gas stove to melt away his fingerprints. He took money from a purse in the kitchen and left through the back door.

The defendant further told Thompson that he went home, cleaned up, changed, bought some cocaine, went to his girl friend’s house and they ingested some cocaine. He went back to his brother’s house, bought more cocaine, and ingested more cocaine.

After the defendant confessed to killing the victim, Detectives Tansey and Robertson returned to the victim’s home and found the hole in the ceiling beam where the ceiling hook had been removed which the defendant had described to them.

An expert in forensic microscopy testified for the defense. The expert did not examine the hairs in the instant case, but opined that, based on his experience, hair analysis could exclude an individual as a suspect but could not “conclusively include” or identify an individual.

A former co-worker of the defendant testified that she loaned the defendant $100 on August 13 and that it was not unusual for the defendant to borrow money from her.

The defendant’s testimony was essentially the same as his pretrial testimony. The defendant added that he was unable to write English at the time of the murder and that Hebrew is his best speaking language. He was attending a junior college to obtain a GED.

The defendant denied harming the victim in any way. He stated that he purchased cocaine the night the victim was murdered and used the money that he borrowed from his co-worker. The defendant stated that he offered to sell a gold chain to obtain more cocaine, but the chain belonged to his uncle and did not have an initial on it. The defendant admitted that he did not complain about the police brutality at the time he had his jail physical.

The State’s rebuttal witnesses, the paramedic who performed the defendant’s physical and the court reporter who transcribed the defendant’s statement, testified that there were no signs of physical injury to the defendant when they interacted with him.

The defendant contends that several trial errors warrant reversal of his conviction. First, the defendant argues that the State’s hair expert made an improper conclusion when she testified that “to a reasonable degree of scientific certainty,” hairs recovered from the victim’s clothing and glass collected from her home belonged to the defendant. In support of his allegation, the defendant relies on People v. Linscott (1987), 159 Ill. App. 3d 71, 511 N.E.2d 1303. In Linscott, the court reversed the defendant’s murder conviction because the prosecutor’s closing argument deprived the defendant of a fair trial.

The defendant’s reliance on Linscott is misplaced. Both the defendant and the State ignore our supreme court’s decision in People v. Linscott (1991), 142 Ill. 2d 22, 566 N.E.2d 1355, in which the court vacated the judgment of the appellate court. At trial, the prosecutor had argued that the defendant’s pubic hairs and the pubic hairs combed from the victim “matched” and “were identical.” The appellate court stated that this distorted the expert’s testimony, which was that the defendant’s hair samples were “consistent” with the victim’s hair. The expert did not testify that the hairs matched. In reversing the defendant’s conviction, the appellate court noted that there was very little other evidence linking the defendant to the crime.

The supreme court disagreed with the appellate court’s assessment of the prosecutorial error and held that the prosecutor’s “match” comments were improper, but were not so egregious as to deny the defendant a fair trial. (Linscott, 142 Ill. 2d at 35, 566 N.E.2d at 1361.) The court stated that the jury, having heard the expert’s testimony, was free to reject the prosecutor’s analogy.

In light of the supreme court’s holding, the defendant’s argument must fail. In the instant case, the hair expert stated that “[wjithin a reasonable degree of scientific certainty, I would have to say that the hair originated from Joel Buie.” The expert further testified that she could not exclude all other persons in the world, other than the defendant, as being a possible source for the hair fragments. In closing argument in the instant case, the prosecutor also pointed out that the expert said that “she could not exclude every other person in the world as a source for that hair.”

Unlike Linseott, the prosecutor in the instant case did not misrepresent the expert’s testimony. Also, unlike Linseott, there is other evidence in this case linking the defendant to the crime, in particular, his detailed confession.

We further believe that the State’s expert appropriately rendered her opinion based upon her experience and qualifications. When a subject matter is complicated and outside the scope of knowledge and understanding of the ordinary lay person, a witness who has expert knowledge on that subject is allowed to voice an opinion on it to aid the trier of fact in understanding the matter and in resolving the factual questions. (Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 382 N.E.2d 1201.) In her testimony, the expert detailed the process by which hair samples are analyzed and compared with each other. She also stated that the defendant’s hair samples were identical in all of the characteristics that she listed in her notes to describe the hair found on the victim’s clothing. Thus, she had sufficient basis to state that “[wjithin a reasonable degree of scientific certainty,” the unknown hair originated from the defendant.

The defendant also argues that the hair samples were not collected properly, nor analyzed properly. The defendant cites no legal authority in his argument. Moreover, the defendant waived this issue by failing to object at trial. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

The defendant next contends that he was denied his right to a fair trial because his motion for a mistrial for a discovery violation was denied. Specifically, the defendant alleges that the State’s hair expert reports were made in December 1986 and in February 1988. The expert’s reports were not tendered to the defendant until February 18, 1988, three weeks before her testimony at trial. The judge was willing to allow the defendant additional time to perform any further testing of the hair samples. In the report, the expert concluded that the hair “could have come from the defendant.” Yet, her trial testimony stated that “[w]ithin a reasonable degree of scientific certainty,” the hair came from the defendant. The defendant now argues that this resulted in surprise and prejudice and deprived him of due process and a fair trial.

Supreme Court Rule 412 provides that the State is required to disclose the reports and statements of experts made in connection with the case and the results of any scientific tests that were performed. (107 Ill. 2d R. 412(a)(iv).) The State did disclose the reports and statements of its expert and thus complied -with the discovery rule. The defendant is essentially objecting to the State’s timing and the disparity between the report’s content and the expert’s trial testimony.

We find the defendant’s argument to be without merit. As far as the timing, the defendant had ample opportunity to question the State’s expert and obtain his own expert. As for the inconsistency in the expert’s report and testimony, we find the distinction in the two statements to be insufficient to have prejudiced the defendant. The defendant was allowed to cross-examine the expert, and did, indeed, use the inconsistency for purposes of impeachment. The defendant also presented his own expert who testified that hair analysis could be used to exclude individuals, but not to include them. Thus, for all of the aforementioned reasons, we do not believe that the judge erred in denying the defendant’s motion for a mistrial for a discovery violation.

The defendant further contends that his case should be remanded for resentencing because his armed robbery conviction cannot stand. The defendant argues that an armed robbery charge requires that property be taken from a person by force, and that force must precede or be contemporaneous with the taking. In the instant case, the defendant claims, none of the property was recovered. The defendant’s statement was the only evidence linking him to the armed robbery. In that statement, the defendant said that he took the property simply to make the murder scene look like a robbery. Therefore, the defendant concludes the force was not used to take the property and the armed robbery conviction cannot stand.

In People v. Williams (1987), 118 Ill. 2d 407, 515 N.E.2d 1230, the defendant raped the victim and was later found in possession of the victim’s gold chain necklace. The defendant was convicted of both rape and armed robbery. In affirming the armed robbery conviction, the supreme court noted that the offenses were “essentially a single series of continuous acts committed by the defendant.” (118 Ill. 2d at 416, 515 N.E.2d at 1234.) The court further stated:

“Whether the defendant took the necklace from the victim’s person or whether he picked it up off the floor after committing the assault, we believe that in this case there was the necessary concurrence between the defendant’s use or threat of force and his taking of the necklace to give rise to the offense of armed robbery under the statute.” (Williams, 118 Ill. 2d at 416, 515 N.E.2d at 1234-35.)

In the instant case, we believe that the taking of the victim’s ring, necklace, and other possessions from the home was essentially a single series of continuous acts committed by the defendant. A jury could have found, beyond a reasonable doubt, from the evidence presented at trial that the defendant took the victim’s property by the use of force. While the defendant’s confession stated that he ransacked the bedroom to make it appear as a robbery had taken place, he also stated that he took the victim’s necklace and ring off of her dead body. There was ample evidence of the defendant’s cocaine use before and after the victim’s murder. His girl friend told the officers that he used a gold necklace to purchase cocaine. The defendant also testified that he offered to sell a gold chain for cocaine, but stated that the chain belonged to his uncle.

We, therefore, believe that there was the necessary concurrence between the defendant’s use of force and the taking of the victim’s jewelry and property to give rise to the offense of armed robbery.

The defendant further contends that the admission of certain hearsay statements into evidence violated his sixth amendment right to confront the witness against him. Specifically, the defendant objects to Detective O’Leary’s statement that the defendant’s girl friend fold him that she and the defendant were doing some narcotics and that the defendant had left the apartment for awhile. Secondly, the defendant points to Detective Robertson’s statement that the defendant’s girl friend told him that she and the defendant were using cocaine and that the defendant purchased cocaine by pawning a gold necklace. The defendant argues that both of these statements were offered for their truth, and since the defendant’s girl friend did not testify at trial, she was not available to cross-examine.

We believe the defendant’s contention is without merit. With regards to the first statement, the defendant’s objection was a general objection as the defendant did not state “hearsay” as the specific ground. A general objection raises only the question of relevance. (Johnson v. Bennett (1946), 395 Ill. 389, 69 N.E.2d 899.) We believe that O’Leary’s statement was relevant to explaining the course of the police investigation. Since the statement was inconsistent with what the defendant had previously told the officers, the statement illustrated how they became suspicious that the defendant murdered the victim. The statement was also used to rebut the defendant’s testimony that his confession was coerced. It was further used for the purpose of explaining what led to the defendant’s confession because he was confronted with the inconsistency between his statements to the officers and his girl friend’s statements prior to confessing to the murder.

The second statement was objected to on the ground of hearsay. It is well established that an out-of-court statement not offered for the truth of the matter asserted is not hearsay. (People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293.) Officer Robertson’s statement was not offered for the purpose of establishing that the defendant purchased cocaine by pawning a gold necklace, but rather for the purpose of establishing the inconsistencies between the defendant’s statements to the police and his girl friend's statements. Robertson’s statement was properly admitted as it was relevant to all of the issues we have already discussed with regards to O’Leary’s statement.

The defendant also alleges that the State improperly relied on the alleged hearsay statements during closing argument. Since the prosecutor was summarizing the properly admitted evidence, there was no error.

The defendant next asserts that he was not proved guilty beyond a reasonable doubt of the victim’s murder and armed robbery. In evaluating the sufficiency of proof upon review, this court must assess whether the evidence, when viewed in the light most favorable to the State, allows any rational trier of fact to find the elements of the offense beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.

We find ample evidence in the record to allow a rational trier of fact to have convicted the defendant of murder and armed robbery, beyond a reasonable doubt. The defendant’s confession detailed the course of events which took place in the victim’s home and resulted in her murder. Further, while it is apparent that the jury did not believe that his statement was coerced, the defendant’s confession contained details that even the police did not know until after the confession. Specifically, the defendant told the officer that he removed the ceiling hook from the ceiling in the basement. A picture of the hole in the ceiling beam in the basement where the defendant removed the hook was taken after his confession and was admitted into evidence. The jury heard testimony that in spite of the defendant’s allegations that he was kicked and beaten by the police in order for them to obtain a conviction, there were no bruises, scratches, or any other physical evidence to support his statements. By his own admission, the defendant was in the victim’s home on the day she was murdered. The defendant further testified at trial that he purchased cocaine and traded a gold chain for the cocaine because he was short of funds. The jury heard testimony that hairs found on the victim’s clothing and among the broken glass in the basement were consistent with the defendant’s hair.

After considering all of the evidence, we conclude that the State’s evidence left no reasonable doubt of the defendant’s guilt.

The defendant next argues that the trial court committed reversible error when, during voir dire, it refused the defense challenge for cause to excuse one of the jurors. The purpose of voir dire is to screen for and eliminate prospective jurors who are unable or unwilling to be impartial. (People v. Washington (1982), 104 Ill. App. 3d 386, 432 N.E.2d 1020.) A person is not competent to sit as a juror if his state of mind is such that with him as a member of the jury, a party will not receive a fair and impartial trial. (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) The determination of whether a prospective juror is impartial is within the sound discretion of the trial court and will not be reversed unless the trial judge’s determination is against the manifest weight of the evidence. People v. Johnson (1991), 215 Ill. App. 3d 713, 575 N.E.2d 1247.

The defendant argues that the juror at issue stated during voir dire that she was a good friend of a Chicago police officer. When asked by the court whether she could honor her oath as a juror and base her verdict solely on the sworn testimony of the witnesses, the juror responded that “It would be difficult not to hear his opinion which I have heard for over eight or ten years. I could probably try.” However, the court further questioned the juror in an effort to expose any potential impartiality. The juror stated that she would make every effort to put aside the conversations she had had with her police officer friend and repeatedly affirmed her ability to honor her oath as a juror. The juror agreed that she would base her decision solely on the testimony of the witnesses, that she would follow the law as the judge instructed it, and that she would assess the credibility of the witnesses. We believe the voir dire was extensive enough to eliminate the possibility of the juror’s potential bias.

We believe that the trial judge’s determination with respect to the challenge against this juror was not against the manifest weight of the evidence.

The defendant next objects to the trial court’s finding that the offense was accompanied by brutal and heinous behavior indicative of wanton cruelty. The defendant states that he had no criminal history, there was no evidence of premeditation, and he did not “behave surly when sentenced.” Therefore, the defendant concludes that his behavior was not brutal and heinous and he should not have been sentenced to natural life imprisonment.

Conduct is “heinous” if it is hatefully or shockingly evil, grossly bad, enormously and flagrantly criminal. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) “Brutal” includes conduct which is grossly ruthless, devoid of mercy or compassion, or cruel and coldblooded. People v. La Pointe, 88 Ill. 2d at 501, 431 N.E.2d at 353.

We believe the trial court properly sentenced the defendant to natural life imprisonment as his conduct was brutal and heinous. The defendant beat the victim’s head with a glass bottle and a hammer until she died from the trauma. He then gagged her and tied her hands behind her back with nylons and left her on the floor of her basement. The photographs graphically illustrate the severity of the beating.

Regarding the defendant’s lack of criminal history, the defendant in another section of his brief has conceded that the defendant had previously been arrested on a battery charge. His lack of premeditation and conduct at the sentencing hearing cannot be said to mitigate the cruel, cold-blooded, and flagrantly criminal acts of the defendant.

Finally, the defendant contends that he was sentenced under a statute which violates his equal protection and due process rights because the statute permits two different penalties for first degree murder. Specifically, the defendant was sentenced under section 5—8—1(a) of the Uniform Code of Corrections, which provides for a term of natural life imprisonment if the murder was accompanied by brutal and heinous behavior. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1).) The defendant notes that pursuant to section 5—8—2(a)(1), a court may sentence a defendant to an extended term of imprisonment if the murder was accompanied by brutal and heinous behavior. Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-2(a)(1).

The Code mandates that a circuit court weigh aggravating and mitigating factors before imposing a sentence and it is the presence of the statutory factors which determine the nature of the sentence imposed on a defendant found guilty of brutal and heinous behavior. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The court in La Pointe held that because the circuit court does not have unbridled discretion in sentencing a defendant to natural life imprisonment or an extended term, the defendant’s attack on the constitutionality of the first degree murder statute could not succeed. See also People v. Cartalino (1982), 111 Ill. App. 3d 578, 444 N.E.2d 662; People v. Abernathy (1989), 189 Ill. App. 3d 292, 545 N.E.2d 201.

We agree that the factors in mitigation and aggravation provide the necessary guidance for the trial court to decide whether a particular defendant be sentenced to life imprisonment or an extended term.

For all of the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    EZEQUIEL ALMODOVAR, Plaintiff-Appellee, v. DEAN LENT, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—3102
    Opinion filed November 5, 1992.

      Law Offices of Robert E. Zeitner, of Chicago (Julie L. Friedman, of counsel), for appellant.
    John F. Eichler & Associates, of Chicago (Rhonda L. Walker, John F. Eichler, and Floyd Perkins, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Dean Lent, defendant, appeals from an order of the circuit court of Cook County denying his motion for a continuance. On appeal, the issues are whether the trial court (1) abused its discretion when it denied defendant’s motion for a continuance and (2) erred when it refused defendant’s proposed nonpattern jury instruction.

We affirm.

This appeal arises from injuries sustained by Ezequiel Almodovar, plaintiff, after he was shot while patronizing defendant’s tavern. On March 27, 1978, at approximately 6:30 p.m., plaintiff went to the Clark Street Tap bar with friends. He had visited the bar several times and knew defendant, the owner of the bar. He also knew Moisés Figueroa, the bartender. Plaintiff and his friends were frisked as they entered the bar.

At approximately 9 p.m., three men who were playing pool began to argue. The argument ended, but after a few minutes it began again. Defendant, who was sitting at the bar, told the men to “cool it.” The argument began a third time and defendant told the men that he was not going to tell them again. One of the men, Ignus Kholl, swung at defendant but missed. The bartender asked defendant what he should do, to which defendant replied that he should do nothing and wait.

A few minutes later, Kholl threatened defendant and took another swing at him. Defendant testified that one of the men with Kholl pulled out a gun, fired several shots in the air, and then ran toward the middle of the bar. At this point defendant yelled to the bartender to “get them, get them.” He further stated that the lights went out and that several guns were fired.

Plaintiff testified that after defendant yelled to the bartender to “get them,” the bartender reached under the bar and pulled out a gun. The bartender then jumped over the bar and began shooting at the men who were running toward the front door. In turning to shoot, the bartender was facing plaintiff and Nelson Roman, plaintiff’s friend. Plaintiff further testified that the bartender aimed and shot in his (plaintiff’s) direction, striking him in the face. He further stated that no one else in the room was shooting a gun. Plaintiff’s testimony was corroborated by Roman’s testimony.

After the shooting, plaintiff was taken to the Illinois Masonic Hospital emergency room. Plaintiff testified that while at the hospital, he had a conversation with a policeman and an assistant State’s Attorney. He stated that he told them what had happened. The police officer and the assistant State’s Attorney also interviewed other victims of the shooting. The left side of plaintiff’s jawbone was shattered as a result of the shooting. Plaintiff underwent surgeries and lost 35% to 45% of the bone comprising his left jaw.

Plaintiff filed suit against defendant, d/b/a Clark Street Tap, in 1980. The matter was assigned for trial to the Honorable Stephen Schiller on May 12, 1989. Judge Schiller addressed discovery requirements and set a trial date. The court also required the parties to prepare a list of their respective witnesses and continued the trial to June 12,1989.

On May 30, 1989, defendant moved to continue the June 12, 1989, trial date based on the medical unavailability of defense witness Chicago police officer James McDonough. The trial court directed defendant to determine the medical availability of the witness for trial or evidence deposition. Additionally, the court inquired into the materiality of the testimony but no offer of proof was made at that time.

On June 21, 1989, defendant renewed his motion to continue the trial date. The motion was granted over plaintiff’s objection and the case was continued to June 26, 1989. Defendant was instructed to determine the medical availability of Officer McDonough and offer proof of the materiality of his testimony.

On June 26, 1989, when the parties appeared for trial, defendant moved for another continuance. Defendant could make no further offer of proof beyond that contained in his motion to continue. The trial court refused to grant a continuance. The trial court noted that this was a 1980 case and that there was no assurance as to when the proposed witness would be available or that the evidence would be material. Further, the court held that even if the witnesses were available, their testimony would be hearsay.

After the evidence was presented, defendant submitted a proposed instruction modifying Illinois Pattern Jury Instructions, Civil, No. 120.06 (2d ed. 1985) (IPI Civil 2d). IPI Civil 2d No. 120.06 states as follows:

“The owner of property owes an invitee the duty to exercise ordinary care to keep the premises reasonably safe for the use by the invitee.”

Defendant’s instruction quoted the proposed instruction directly, apart from changing the phrase “owner of property” to state “owner of a tavern.” In addition, defendant added the following language, citing the case of Getson v. Edifice Lounge, Inc. (1983), 117 Ill. App. 3d 707, as support therefor: “The owner of a tavern has no duty to protect invitees from unforeseeable criminal attacks by third persons.”

Plaintiff objected to the use of this instruction because it was negative in format and, in the form proposed, it unduly emphasized or created a new factual issue in the case that would be misleading and confusing. Plaintiff also maintained that the proposed instruction did not properly state the law applicable to the case at bar and noted that the existence of a legal duty does not depend upon foreseeability alone. The trial court refused to give the nonpattern jury instruction and limited the instruction to the language set forth in IPI Civil 2d No. 120.06.

After deliberations, the jury returned a verdict in favor of plaintiff in the amount of $172,800.

On appeal, defendant contends that the trial court abused its discretion when it refused to grant a continuance so as to allow him additional time to present his witnesses.

“A motion for continuance, except where it is based upon a statutory cause, is addressed to the sound discretion of the trial court.” (Hermann v. Hermann (1991), 219 Ill. App. 3d 195, 198.) “Once a case has reached the trial stage, the moving party must give especially grave reasons for the continuance because of the potential inconvenience to the witnesses, the parties and the court.” (Hermann, 219 Ill. App. 3d at 198.) Further, “[a] defendant seeking a continuance to secure the presence of witnesses must make an offer of proof of that proposed testimony.” People v. Camp (1990), 201 Ill. App. 3d 330, 338.

We believe that the trial court acted well within its discretion in denying defendant’s motion for a continuance. In this case, the trial court had already granted defendant three continuances after the trial assignment. On each of these three court dates, the trial court specifically directed defendant to state the substance and offer the materiality of Officer McDonough’s testimony. In denying defendant’s last request for a continuance, the trial court noted that defendant failed to demonstrate the materiality of Officer McDonough’s testimony and he did not state when the witness would be able to testify.

Defendant did not move for a continuance until after the cause had been set for trial and was therefore required to make an offer of proof as to materiality of the witness’ testimony. Defendant’s motion stated that Officer McDonough had scheduled surgery and that he had interviewed the victims of the shooting. The motion failed to relate the substance of the proposed testimony or explain how the testimony would be relevant or admissible to this lawsuit. We find that defendant’s offer of proof demonstrating the materiality of Officer Mc-Donough’s testimony did not meet the requirements necessary to warrant an additional continuance.

Similarly, defendant failed to make a showing as to when the assistant State’s Attorney would be available. Nor was there a showing as to the materiality of the assistant State’s Attorney’s testimony.

Defendant attempts to infer that the witnesses would have impeached plaintiff’s testimony by showing that he stated that someone other than the bartender shot him. Our review of the record supports the trial court’s finding that the proffered testimony was immaterial and unduly prejudicial. We therefore find that the trial court did not abuse its discretion when it denied defendant’s request for a continuance.

Defendant also contends that the trial court erred in refusing his proposed non-IPI jury instruction.

The application of non-IPI jury instructions was explained in Rios v. Navistar International Transportation Corp. (1990), 200 Ill. App. 3d 526, as follows:

“The law concerning the giving of non-IPI instructions is derived from Supreme Court Rule 239 (107 Ill. 2d R. 239) and the case law interpreting this rule. Basically, the law states that Illinois Pattern Jury Instructions (IPI), which were devised for a court to instruct a jury on the law in an impartial and non-argumentative manner, shall be used unless the court determines that they do not accurately state the law. [Citations.] The use of non-IPI instructions in addition to IPI instructions is improper where the IPI instructions correctly and adequately charge the jury. [Citation.] By the same token, however, each party has the right to have the jury instructed on his or her theory of the case, and the trial court must instruct the jury on all issues which it finds, in the exercise of its discretion, have been raised by the evidence presented.” Rios, 200 Ill. App. 3d at 534-35.

Applying these principles to the case at bar, we do not believe the trial court abused its discretion in finding the IPI instructions correctly and adequately charged the jury on the issues raised by the evidence presented. “It is a well-established principle of tort law that a proprietor of a business establishment owes the business invitee the duty of exercising ordinary care in maintaining the premises in a reasonably safe condition.” (Fravel v. Morenz (1986), 151 Ill. App. 3d 42, 45.) Here, the issues instruction did not raise the question as to whether a third person on defendant’s property shot plaintiff. Thus, there was no basis for a jury instruction on the law of landlord liability for injuries committed by third party invitees. Further, we agree with plaintiff that defendant’s nonpattern jury instructions, as proposed, were argumentative and confusing. We believe the instruction that was given fairly and correctly stated the law applicable to the issues and facts as presented. We therefore find that the trial court did not err in refusing to instruct the jury with the non-IPI instructions tendered by defendant.

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

Affirmed.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PEDRO CHAVEZ HERRERA, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—3007
    Opinion filed November 5, 1992.

      Thomas A. Gibbons, of Kreiter & Gibbons & Associates, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Marcia Northrup, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Pedro Chavez Herrera, defendant, was convicted of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)), following a jury trial in the circuit court of Cook County. He was sentenced to a term of eight years in the Illinois Department of Corrections. On appeal, defendant contends that he was denied a fair trial where (1) the State was permitted to refer to him as “Herrera”; (2) the State, on cross-examination, asked him about his connection with the “Durango Pipeline” and suggested that he had transported controlled substances from Mexico; and (3) the State was not required to produce its confidential informant.

We affirm.

On May 4, 1988, Chicago police officers executed a search warrant in the name of Luisa Sanchez (the codefendant whose cause was severed), on a home located at 13953 South Hoxie Avenue, in Burnham, Illinois. The search warrant was based upon information provided by an undisclosed informant that Luisa had sold cocaine to him from inside the residence earlier that day. Officer Thomas West testified that he directed the operation of police officers who searched the home. The witness stated that this assignment was a part of an ongoing narcotics investigation called “Operation Pipeline.”

Prior to trial, defendant filed a motion in limine asking the court to preclude the State from referring to defendant as Pedro Herrera. After hearing arguments, the trial court denied defendant’s motion.

The record discloses that the house on which the search warrant was executed was a split-level model. The living room, dining room, and kitchen were on the main level; the bedrooms were on the upper level; and the family room was on the lower level. At trial, police officers testified that at approximately 4 p.m. they proceeded to the front and back doors of the house. Officer West testified that Luisa opened the front door “within seconds” of the officers knocking. Upon being seen, she began screaming “los Perros,” which in Spanish is slang for “the police.”

Officers who were stationed at the rear of the house testified that they were able to view defendant through a large unobstructed window in the back door. The officers observed defendant seated at a table in the family room moving his hands about the table. Located on the table, immediately in front of defendant, was a triple beam scale. There was a box of plastic bags on defendant’s left, and a large plastic bag containing a quantity of white powder on his right. When Luisa screamed “los Perros,” defendant stood up from the table and ran to the back door. The officers arrested defendant as he attempted to leave out of the back door. Upon searching defendant’s pockets, the officers found a small plastic bag of cocaine and a folded $10 bill containing cocaine. The total weight of both items was 5.05 grams.

Defendant and Luisa were detained in the living room while officers searched the house. Officers recovered a triple beam scale, a box of plastic sandwich bags, and a large plastic bag containing 440.3 grams of cocaine on top of the table. Beneath the table, officers found a pack of disposable rubber gloves, two small hand scales, and an orange object affixed to one of the scales which was described as a “personal ditty bag” for keeping small amounts of cocaine. The search also resulted in the recovery of a handgun from a closet in the basement and 6.15 grams of cocaine from one of the upstairs bedrooms.

The officers determined that defendant had a Texas driver’s licence and that his keys did not fit the door locks of codefendant’s house. Defendant was charged with possession of the 440.3 grams of cocaine recovered at the table where he had been seated. He was not charged with possession of the cocaine recovered from the upstairs bedroom or the small amount found in his pocket.

Defendant testified that he and his family have lived in El Paso, Texas, since 1973. This testimony was corroborated by various documents, stipulated to by the parties, that defendant resided in Texas. Defendant stated that he operated a family-run grocery store in El Paso. The witness lived in Chicago from 1962 to 1973, during which time he worked in the steel mills. The witness stated that he has two sisters who live in Chicago. He testified that he travels to the area approximately three times a year to visit his sisters and friends.

Defendant testified that he met Luisa at a tavern while visiting Chicago about one year before his arrest. He stated that he had bought a gram of cocaine from Luisa when they met and that he had an affair with her. At the time of defendant’s arrest, he had come to Chicago for his niece’s birthday party. Defendant stated that after the party, he telephoned Luisa and then went to her home. When he arrived at about 1 p.m., they had sexual intercourse. Afterward, Luisa opened the drawer, located next to the bed, and removed one of several “bills” located inside. The bill contained cocaine which they both used. Defendant asked Luisa if she had any cocaine to sell. He stated that he gave Luisa $300, which was all of his money. He further stated that Luisa gave him a gift of one of the $10 bills containing cocaine. They went to the basement, where Luisa removed a large scale and weighed out some cocaine for him.

While in the basement, they heard a noise at the front door. Luisa went upstairs to see who was at the door. Once upstairs, defendant heard her scream “police.” He became frightened and attempted to leave out of the back door. As he opened the door, police officers placed him under arrest and searched his pockets.

The following line of questioning occurred during the State’s cross-examination of defendant:

“Q. You and Luisa saw one another every time you came to Chicago?
A. When I would come, I would see her.
Q. Now, excuse me, El Paso, Texas is located very close to the Mexican border, isn’t it?
MR. GIBBONS [Defense counsel]: Objection. Relevance.
THE COURT: I’ll let the witness answer.
A. Next to it.
Q. And, in fact, it’s very close to Durango, Mexico, isn’t it?
MR. GIBBONS: Objection.
THE COURT: I’d sustain the objection.
Q. Have you ever heard of a thing called the Durango Pipeline, Mr. Herrera?
MR. GIBBONS: Objection.
THE COURT: I’ll sustain the objection.
MR. GIBBONS: Side bar.
THE COURT: Respectfully I will deny your request.
MR. GIBBONS: I would be asking for a mistrial.
THE COURT: Respectfully sustained. Ask the jury to disregard it.
* * *
Q. And you made love on each occasion and you got drugs from her on each occasion?
A. Yes, it is.
Q. And, sir, the drugs that you used, they always came from Luisa Sanchez or they always came with you from Texas?
MR. GIBBONS: Objection, Judge, unless he’s going to be able to prove up these questions.
THE COURT: I would sustain the objection.”

Following jury deliberations, defendant was found guilty of possession of a controlled substance with intent to deliver and was sentenced to a term of eight years in the Illinois Department of Corrections.

On appeal, defendant contends that the trial court erred in denying his motion in limine barring the use of defendant’s name “Herrera.” At a hearing on the motion, defendant argued that the Herrera name is notorious in the drug trafficking district throughout the United States and had negative connotations in the mind of the jury. Defendant presented medical records, utility bills, and the warranty deed to his home to establish that his name is Pedro Chavez and not Herrera. Although defendant’s grandmother’s name is Herrera, his father’s name is Chavez. Defendant’s position at the trial court level, and on appeal, is that by permitting the State and its witnesses to refer to him as Pedro Herrera he was denied his fundamental right to a fair and impartial trial.

The State countered that defendant was charged under the Herrera name and that the Herrera name was on the motions and the police reports. The State further argued that the witnesses knew defendant as Herrera, and that to call him by any other name would cause confusion in the minds of the witnesses, the assistant State’s Attorney and the jury. The trial court found that in order to avoid confusion among the witnesses, the State could refer to defendant as Pedro Chavez Herrera. In making its ruling, the court noted that in Mexico, it is not uncommon for people to use their mother’s family name as well as their father’s family name.

“Whether a prosecutor’s comments or arguments constitute prejudicial error is evaluated according to the language used, its relation to the evidence, and the effect of the argument on the defendant’s right to a fair and impartial trial.” (People v. Coleman (1990), 201 Ill. App. 3d 803, 807.) Improper remarks “will not be considered reversible error unless they constitute a material factor in the defendant’s conviction or result in substantial prejudice to the accused.” (People v. Cook (1990), 201 Ill. App. 3d 449, 461.) “Improper [comments] may be considered harmless error if there is overwhelming evidence of defendant’s guilt.” Cook, 201 Ill. App. 3d at 461.

The facts lead us to conclude that the prejudicial effect of permitting the State to refer to defendant as Herrera was insufficient to warrant reversal. The evidence supporting defendant’s conviction was overwhelming, and we do not believe referring to defendant as Herrera resulted in substantial prejudice.

The trial court permitted the State to refer to defendant as Herrera, the name by which the witnesses had come to know him, and stated that it was denying his motion for the legitimate purpose of avoiding confusion among the jury, the State, and the witnesses. Although the record is devoid of facts as to how witnesses came to know defendant as Herrera, the use of the name was not wholly inappropriate. The trial court properly noted that defendant’s maternal family name was Herrera and that it was not uncommon, under the circumstances, to use the family name of either parent.

Defendant also contends that prejudicial error occurred when the State cross-examined him about his name and the Durango Pipeline and suggested that he had transported controlled substances from Mexico.

The State maintains that defendant has waived review of this issue because he failed to object to the statements at trial and to raise them in a post-trial motion. Generally, an issue which has not been objected to during trial and has not been raised in a post-trial motion is not preserved for appeal unless the error was so serious that it deprived defendant of a fair trial. (People v. Enoch (1988), 122 Ill. 2d 176, 187.) As the issue here alleges the violation of a constitutional right, we will review the statements to determine whether defendant was denied a fair trial.

The State maintains that its cross-examination was proper as the questions related to the evidence and were within the scope of direct examination. The State further maintains that if the statements were improper, the comments were harmless as they did not constitute a material factor in defendant’s conviction.

The court in People v. Johnson (1991), 218 Ill. App. 3d 967, explained the scope of cross-examination as follows:

“[T]he limitation on the scope of cross-examination is construed liberally to allow inquiry into whatever tends to explain, qualify, modify, discredit, or destroy the testimony on direct. [Citations.] In addition, a ‘good-faith basis is required on the part of examining counsel as to the truth of the matter contained in leading questions propounded to a witness on cross-examination.’ ” (Johnson, 218 Ill. App. 3d at 988, quoting M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §607.3, at 340 (5th ed. 1990).)

The scope of cross-examination rests within the sound discretion of the trial court, and its findings will not be disturbed absent an abuse of discretion. (People v. Riggins (1990), 205 Ill. App. 3d 904, 914.) “Reversal is required only where there is a clear abuse of discretion resulting in manifest prejudice to defendant.” Johnson, 218 Ill. App. 3d at 988.

On review, we believe the State had a good-faith basis for exploring on cross-examination of defendant whether the bag of cocaine found in his possession belonged to him or to Luisa. Defendant testified that he resided in El Paso, Texas, and that he traveled to Chicago three times a year to visit family and friends. He further testified that he was merely visiting Luisa and that the cocaine seized while in his possession did not belong to him.

The State was entitled to discredit defendant’s testimony that the cocaine found in his possession at the time of his arrest did not belong to him. However, we believe the State’s suggestions that defendant was affiliated with the Durango Pipeline and had transported cocaine from Mexico were improper. Nevertheless, we conclude that the comments were not of a sufficient nature to cause prejudice to defendant’s case.

Defendant was charged with possession of a controlled substance with intent to deliver. In order to support defendant’s conviction, “the State must establish that the defendant had knowledge of the presence of narcotics, that the narcotics were in the immediate control or possession of the defendant, and that the amount of narcotics was in excess of any amount which might be viewed as merely possessed for personal use.” (People v. Witherspoon (1991), 216 Ill. App. 3d 323, 333.) Here, the comments did not constitute a material factor in defendant’s conviction nor did they result in substantial prejudice. (See People v. Cook (1990), 201 Ill. App. 3d 449.) The State’s comments were relatively limited and did not relate to a material element of the offense. Moreover, we believe the trial court cured the prejudicial effect of the State’s cross-examination by sustaining defendant’s objections.

Defendant also contends that the trial court erred in denying his motion to produce the State’s confidential informant. Defendant contends that the informant could have provided corroborating testimony that he was not in the house earlier that day and that he was visiting Luisa’s house. The State maintains that the informant’s role was not that of a transactional informant and that any testimony he might have given would not have assisted defendant’s case.

Supreme Court Rule 412(j)(ii) addresses the circumstances whereby disclosure of an unidentified witness is required. The rule provides, in pertinent part, as follows:

“Informants. Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.” 134 Ill. 2d R. 412(j)(ii).

In determining whether a confidential informant’s identity should be disclosed, a court should balance “the strong public policy reasons favoring it against a defendant’s need for disclosure in order to prepare his defense.” (People v. Witherspoon (1991), 216 Ill. App. 3d 323, 331.) Where the confidential informant is not a participant or a material witness to the essential elements of the offense, his identity can be withheld. (People v. Velez (1990), 204 Ill. App. 3d 318, 326.) Moreover, defendant bears the burden of establishing that the informant can testify to facts bearing on the charged offense. Witherspoon, 216 Ill. App. 3d at 331.

After reviewing the record, we agree with the trial court’s finding that defendant did not meet his burden of demonstrating the need for disclosure of the informant’s identity. The fact that defendant was not present in the house at the time of the earlier drug transaction between Luisa and the informant bears no relevance to defendant’s presence in the house at the time of his arrest. Police officers testified that they observed defendant sitting at a table which had 440.3 grams of cocaine on it. The informant’s information was used only to support a search warrant of the residence. Here, the informant did not participate in the crime and had little to offer as a material witness to the essential elements of the offense.

Defendant also contends that the informant may have provided additional relevant evidence; however, he does not state with specificity what information he believes the informant could provide. “When there has been no specific request, absent a finding that the omitted evidence creates a reasonable doubt of the defendant’s guilt, constitutional error has not been committed.” People v. Velez (1990), 204 Ill. App. 3d 318, 325.

Based on our review of the record, we find that the trial court did not err in denying defendant’s motion to produce the State’s confidential witness.

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

LINN and McMORROW, JJ., concur.


author: JUSTICE LINN

text:
      In re REHABILITATION OF CENTAUR INSURANCE COMPANY (Hartford Fire Insurance Company et al., Petitioners-Appellees and Cross-Appellants, v. Stephen F. Selcke, Director of Insurance, State of Illinois, Respondent-Appellant and Cross-Appellee).
    First District (4th Division)
    No. 1—91—3757
    Opinion filed November 5, 1992.

      Peter G. Gallanis, Dale A. Coonrod, and J. Kevin Baldwin, all of Chicago, for appellant.
    Butler, Rubin, Newcomer, Saltarelli, Boyd & Krasnow, of Chicago (James I. Rubin, Robert N. Hermes, Sue Payne, and Samuel W. Ach, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

The Centaur Insurance Company (Centaur) is a wholly owned subsidiary of Borg-Warner Corporation. Centaur issued numerous reinsurance policies to the Hartford Companies (Hartford). Centaur was subsequently declared insolvent and placed under the supervision of the circuit court of Cook County. The Illinois Director of Insurance was appointed the rehabilitator of Centaur.

In the rehabilitation proceeding, Hartford sought a declaration that the rehabilitator did not have standing to pursue Hartford’s claims against Borg-Warner. The trial court ruled that the rehabilitator lacked standing to pursue some claims, but had standing to pursue others. The rehabilitator and Hartford each brings an interlocutory appeal from the trial court’s order.

We affirm in part and reverse in part and remand.

Background

A

The record contains the following pertinent facts. In 1974, Borg-Warner created Centaur to serve as its captive insurer. Borg-Warner also allowed Centaur to do insurance and reinsurance business with entities that were not affiliated with Borg-Warner.

As an insurer, Centaur issued its own insurance policies to outside entities. As a reinsurer, Centaur assumed portions of the insurance risk underwritten by outside insurance companies. In these reinsurance transactions, outside insurers paid Centaur a premium for Centaur’s agreement to indemnify the insurers against part or all of the losses that the insurers sustained on their policies. In a reinsurance transaction, an insurer that buys reinsurance from a reinsurer is designated the reinsured, or ceding company, because the reinsured cedes part or all of its risk to the reinsurer. See 13A J. Appleman, Insurance Law & Practice §7681, at 480-81 (rev. vol. 1976).

Hartford was one such ceding company that bought reinsurance from Centaur. From 1981 through 1984, Hartford ceded some of its policies to Centaur. However, as early as 1984, Centaur had begun to default on obligations it owed to Hartford.

B

The Illinois Director of Insurance filed a complaint in the trial court seeking an order of rehabilitation pursuant to article XIII of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 799 et seq.). On September 4, 1987, the trial court entered an agreed order of rehabilitation. See Ill. Rev. Stat. 1987, ch. 73, par. 802(5).

The rehabilitation order provided as follows. Centaur was declared insolvent. The Director of Insurance was appointed as rehabilitator of Centaur. He was vested with title to all of Centaur’s “property, contracts, and rights of action”; he was authorized to manage Centaur’s property and business; and he was authorized to “sue and defend for the Company, or for the benefit of the Company policyholders, shareholders and creditors.” The rehabilitator subsequently submitted a plan to rehabilitate Centaur, which the court approved on November 19,1990. See Ill. Rev. Stat. 1987, ch. 73, par. 804(3).

In a separate order (Moratorium Order) entered that day, the trial court, inter alia, enjoined all lawsuits against Centaur’s directors, officers, or stockholders. However, on January 27, 1988, the court modified the Moratorium Order and lifted the prohibition.

On the same day that the prohibition was lifted, Hartford brought an action against Borg-Warner in the United States District Court for the Northern District of Illinois. Hartford pled four theories of recovery: abuses of the corporate structure that justify piercing the corporate veil, fraud, reckless misrepresentation, and promissory estoppel.

The Federal district court dismissed Hartford’s complaint without prejudice based on, inter alia, the Federal doctrine of abstention. The United States Court of Appeals for the Seventh Circuit affirmed. Hartford Casualty Insurance Co. v. Borg-Warner Corp. (7th Cir. 1990), 913 F.2d 419.

Following the dismissal of its Federal lawsuit, on October 29, 1990, Hartford brought a declaratory judgment action against Borg-Warner in the circuit court of Cook County. The complaint was nearly identical to the complaint filed in Federal court. In the declaratory judgment complaint, Hartford pled four claims. In count I, Hartford alleged that Borg-Warner abused Centaur’s corporate structure to such an extent that Centaur was merely Borg-Warner’s alter ego, which justified the piercing of Centaur’s corporate veil. In count II, Hartford alleged that Borg-Warner fraudulently misrepresented Centaur’s policyholders’ surplus in publicly filed financial reports. Count III alleged that Borg-Warner recklessly misrepresented Centaur’s financial condition in publicly filed financial reports. Count IV alleged that Borg-Warner was estopped from denying responsibility for Centaur’s obligations. Elsewhere in the record, Hartford alleged that the total losses for which Centaur will be responsible was at least $31 million.

On May 8, 1991, the rehabilitator moved to intervene in Hartford’s declaratory judgment action against Borg-Warner. (See Ill. Rev. Stat. 1987, ch. 110, par. 2—408.) He asked the trial court to dismiss the lawsuit. The rehabilitator argued, inter alia, that only he, as the statutory receiver of Centaur, was entitled to pursue Hartford’s claims against Borg-Warner.

C

On June 25, 1991, in the rehabilitation proceeding, Hartford moved for a declaration that the rehabilitator lacked standing to pursue Hartford’s claims. Hartford alternatively sought the appointment of a creditor’s committee to pursue estate claims against Borg-Warner. Hartford argued that the rehabilitator lacked standing for two reasons. First, Hartford’s claims against Borg-Warner are not claims that Centaur could have maintained against its parent prior to being placed in rehabilitation and, therefore, are not vested in the rehabilitator. Second, the rehabilitator is estopped from asserting that Hartford’s claims belong to the estate based on his three-year acquiescence to and support of suits against Borg-Warner, brought by Centaur’s creditors, including Hartford. The trial court granted Hartford’s motion to defer ruling on the rehabilitator’s motion to intervene in Hartford’s declaratory judgment action until after the court ruled on Hartford’s motion for a declaration in the rehabilitation proceeding.

On October 17, 1991, the trial court issued a memorandum order, in which the court ruled as follows. The rehabilitator is not generally empowered to assert claims belonging to creditors, but rather, may assert only those causes of action that belonged to Centaur at the time it was placed into rehabilitation. Based on this ruling, the trial court concluded that the rehabilitator lacked standing to pursue Hartford’s alter ego claim and estoppel claim. However, the trial court further concluded that the rehabilitator had standing to pursue Hartford’s fraud claim and reckless misrepresentation claim.

Regarding the alter ego and estoppel claims, the trial court subsequently stayed Hartford’s declaratory judgment action against Borg-Warner until an award was rendered in a pending arbitration between Hartford and Centaur. The rehabilitator and Hartford each brings an interlocutory appeal from the trial court’s October 17, 1991, order. See 134 Ill. 2d Rules 303(a)(3), 304(b)(2), 307(a)(5).

Opinion

I

The rehabilitator assigns error to the trial court’s ruling that he was not generally empowered to assert creditors’ claims against Borg-Warner. Rather, the rehabilitator argues that “[a]s the representative of both the company and its creditors,” he “should have the unfettered right” to pursue claims against Borg-Warner on behalf of Centaur’s policyholders and creditors. (Emphasis added.) As sources of this alleged authority, the rehabilitator cites the agreed order of rehabilitation and the subsequent revised plan of rehabilitation, and article XIII of the Insurance Code.

We cannot accept the rehabilitator’s argument. Initially, we note that the trial court’s rehabilitation order and subsequent revised rehabilitation plan are not sources of the rehabilitator’s authority. Rather, article XIII of the Insurance Code establishes the position of rehabilitator, identifies the property over which a rehabilitator exercises authority, and outlines the manner in which that authority is exercised. (Ill. Rev. Stat. 1987, ch. 73, par. 799 et seq.) Since a rehabilitator derives his or her authority from the statute and cannot act against or beyond the statute, a court order does not confer on a rehabilitator any additional authority. 19A J. Appleman, Insurance Law & Practice §10682, at 121 (rev. vol. 1982).

We now turn to article XIII of the Insurance Code. By the statute’s express language, a rehabilitator’s authority does not extend beyond the authority over the “property, contracts and rights of action of the company as of the date of the order directing rehabilitation or liquidation.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 73, par. 803; see 19A J. Appleman, Insurance Law & Practice §10682, at 121 (rev. vol. 1982).) If the legislature had intended a rehabilitator to exercise authority over creditors’ rights of action, it could have easily so provided in the statute.

The statute is consistent with long-established common law principles. Our supreme court stated the following rule over a century ago:

“We understand the rule to be, that where a receiver is appointed for the purpose of taking charge of the property and assets of a corporation, he is, for the purpose of determining the nature and extent of his title, regarded as representing only the corporate body itself, and not its creditors or shareholders ***. *** [F]or purposes of litigation, he takes only the rights of the corporation such as could be asserted in its own name, and that upon that basis, only, can he litigate for the benefit of either shareholders or creditors.” Republic Life Insurance Co. v. Swigert (1890), 135 Ill. 150, 167, 25 N.E. 680, 685.

In Republic Life Insurance, our supreme court recognized that a receiver is generally regarded as a trustee for creditors and stockholders. However, the court explained that “ ‘this only proves that they are the beneficiaries of the fund in his hands, without indicating the sources of his title or the extent of his powers.’ ” Thus, in a controversy between a receiver and a third party regarding a corporate estate, the receiver does not represent the rights that belong to individual creditors, which the corporation could not assert in its own name. 135 Ill. at 168, 25 N.E. at 685, quoting Curtis v. Leavitt (1857), 15 N.Y. 9, 44.

Courts in subsequent decisions have held that these basic principles remain the law of Illinois. (E.g., People ex rel. Barrett v. Bank of Peoria (1938), 295 Ill. App. 543, 549, 15 N.E.2d 333, 335-36; Schacht v. Brown (7th Cir. 1983), 711 F.2d 1343, 1346 n.3.) We do likewise.

The rehabilitator in the case at bar is the statutory receiver of Centaur. Insurance Code section 191 vested him with “the title to all property, contracts and rights of action of the company as of the date of the order directing rehabilitation or liquidation.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 73, par. 803.) Therefore, we uphold the trial court’s ruling that the rehabilitator may assert only those causes of action that belonged to Centaur at the time it was placed into rehabilitation.

A

The rehabilitator continues his challenge to the trial court’s October 17, 1991, order. He assigns error specifically to the trial court’s ruling that he lacks standing to pursue Hartford’s alter ego claim.

A corporation is legal entity, which exists separate and distinct from its stockholders, officers, and directors, who generally are not liable for the corporation’s obligations. (Gallagher v. Reconco Builders, Inc. (1980), 91 Ill. App. 3d 999, 1004, 415 N.E.2d 560, 563.) This is true even though the corporation is a close corporation, where the stock is held in a few hands and is not frequently traded. (Gallagher, 91 Ill. App. 3d at 1004, 415 N.E.2d at 563.) This is also true even though the corporation is a subsidiary corporation, where the stock is wholly owned by a parent corporation and where the parent and subsidiary have mutual dealings. Holland v. Joy Candy Manufacturing Corp. (1957), 14 Ill. App. 2d 531, 534, 145 N.E.2d 101, 103, quoting Dregne v. Five Cent Cab Co. (1943), 381 Ill. 594, 603, 46 N.E.2d 386, 391.

However, a court will disregard a corporate entity and pierce the veil of limited liability where the corporation is merely the alter ego or business conduit of a governing or dominating personality (Gallagher, 91 Ill. App. 3d at 1004, 415 N.E.2d at 563), or “where the corporation is so organized and controlled, and its affairs so conducted, as to make it a mere instrumentality of another corporation.” (Holland, 14 Ill. App. 2d at 534, 145 N.E.2d at 103.) “A corporation may be the alter ego of another corporation and where this occurs the distinct corporate entity will be disregarded and the two corporations will be treated as one.” (Emphasis in original.) Federal Insurance Co. v. Maritime Shipping Agencies, Inc. (1978), 64 Ill. App. 3d 19, 30, 380 N.E.2d 873, 880.

For the doctrine to apply, two requirements must be met. First, there must be such a unity of interest and ownership that the separate personalities of the corporation and the dominating individual or entity no longer exist. Second, the facts must be such that an adherence to the fiction of separate corporate existence would endorse a fraud or promote injustice. Gallagher, 91 Ill. App. 3d at 1004, 415 N.E.2d at 563-64.

The doctrine of “piercing the corporate veil” is an equitable remedy (Tilley v. Shippee (1958), 12 Ill. 2d 616, 623, 147 N.E.2d 347, 352; 1 W. Fletcher, Cyclopedia of Corporations §41.25 (1990)); it “is not itself a cause of action but rather is a means of imposing liability on an underlying cause of action, such as a tort or breach of contract.” (1 W. Fletcher, Cyclopedia of Corporations §41, at 603 (1990).) The doctrine of alter ego fastens liability on the individual or entity that uses a corporation merely as an instrumentality to conduct that person’s or entity’s personal business. “[Sjuch liability arises from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. The corporate form may be disregarded only where equity requires the action to assist a third party.” (Emphasis added.) 1 W. Fletcher, Cyclopedia of Corporations §41.10, at 615 (1990); see Sinquefield v. Sears Roebuck & Co. (1991), 209 Ill. App. 3d 595, 598, 568 N.E.2d 325, 327.

These concepts have been explained and applied by Illinois courts in many decisions over the years. (Federal Insurance, 64 Ill. App. 3d at 30, 380 N.E.2d at 880.) Illinois courts will disregard the corporate identity of a subsidiary corporation and treat the subsidiary and parent corporations as one if the adherence to the fiction of separate corporate existence would endorse a fraud upon creditors. See, e.g., Federal Insurance, 64 Ill. App. 3d at 31-32, 380 N.E.2d at 881-82; Holland, 14 Ill. App. 2d at 535, 145 N.E.2d at 104.

Applying these principles to the case at bar, we agree with the trial court that the rehabilitator lacks standing to pursue Hartford’s alter ego claim. The trial court correctly concluded that, under the alter ego doctrine, a subsidiary corporation cannot pierce its own corporate veil to reach a parent corporation. Rather, the equitable remedy lies with third parties such as creditors. Thus, the trial court correctly reasoned that Hartford, and not Centaur, can seek to pierce Centaur’s corporate veil under the doctrine. The trial court further reasoned that since the remedy is not available to Centaur, then it is likewise not available to the rehabilitator. We uphold the trial court’s ruling.

II

Hartford assigns error to the trial court’s conclusion that the rehabilitator had standing to pursue Hartford’s fraud claim and reckless misrepresentation claim. To state a cause of action for fraudulent misrepresentation, a plaintiff must prove (1) that the defendant made a statement, (2) of a material nature as opposed to opinion, (3) untrue, (4) known or believed by the person making it to be untrue, or made in culpable ignorance of its truth or falsity, (5) relied upon by the victim to his detriment, (6) made for the purpose of inducing reliance, and (7) such that the victim’s reliance led to his injury. Gordon v. Dolin (1982), 105 Ill. App. 3d 319, 324, 434 N.E.2d 341, 345-46; accord Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599, 601.

Citing these elements, the trial court ruled that Hartford’s fraud claim and reckless misrepresentation claim “are general claims which could be brought both by Centaur and its creditors.” The trial court reasoned that other creditors in addition to Hartford, and perhaps Centaur itself, may also have relied on Centaur’s erroneous financial reports prepared by Borg-Warner.

The trial court’s analysis was incomplete. To state a cause of action for fraud, a plaintiff must show, in addition to the above-cited elements, that, under all of the circumstances, his reliance on the fraudulent misrepresentation was justified. In other words, the plaintiff must have had a right to rely on the misrepresentation. This question is answered by viewing the statements in light of all the facts of which plaintiff had actual knowledge as well as those of which she might have availed herself by exercise of ordinary prudence. Soules, 79 Ill. 2d at 286-87, 402 N.E.2d at 601; Central States Joint Board v. Continental Assurance Co. (1983), 117 Ill. App. 3d 600, 607, 453 N.E.2d 932, 936; Broberg v. Mann (1965), 66 Ill. App. 2d 134, 141, 213 N.E.2d 89, 92-93.

Applying all of the controlling principles to the present case, we conclude that the rehabilitator lacks standing to pursue Hartford’s fraud claim and reckless misrepresentation claim. It is true that other creditors in addition to Hartford, and Centaur itself, could alsd have relied on the erroneous financial statements. However, the tort requires each of these parties to prove that its reliance was justified, based on the particular facts that each possessed or should have possessed. In other words, each party’s claim is presumptively personal.

Of course, the rehabilitator can bring a fraudulent misrepresentation action in the name of Centaur. A receiver for an insurance corporation has the right to bring an action that is necessary to preserve the corporation’s assets and to recover assets of which the corporation has been wrongfully deprived through fraud. In such an action, the receiver may be said to sue also on behalf of the stockholders and creditors, but only because they are the beneficiaries of the corporation’s assets. Cotten v. Republic National Bank (Tex. Civ. App. 1965), 395 S.W.2d 930, 941; accord Republic Life Insurance, 135 Ill. at 168, 25 N.E. at 685.

However, the rehabilitator does not seek to bring the claims in the name of Centaur. Rather, he seeks to pursue these claims on behalf of Hartford. As the court in Cotten explained:

“But some actions for fraud are by their nature personal to each creditor, or each stockholder, or each policyholder, and the receiver may not then maintain a suit in his representative capacity for their joint benefit. In such case each claimant and he alone may bring and maintain the suit himself, for the action is personal, separate and several, not joint, and extends no further than the individual loss of each particular creditor who sues. For example, one who proves that he relied on false representations as to the corporation’s financial condition and was thereby induced to extend credit to the corporation, or to purchase stock in it, or to take out an insurance policy with it, must in his own name maintain a separate suit for his damages against the person who uttered the fraudulent representations. The aggrieved party and he alone may maintain the suit. *** The receiver has no right to bring or maintain such a suit.” Cotten, 395 S.W.2d at 941 (and cases cited therein).

See 19A J. Appleman, Insurance Law & Practice §10681, at 118 n.6 (rev. vol. 1982).

The issue of whether Hartford justifiably relied on Centaur’s erroneous financial reports prepared by Borg-Warner is personal to Hartford. Since Centaur cannot maintain a fraud claim and a reckless misrepresentation claim on behalf of Hartford, neither can the rehabilitator. We reverse the trial court’s ruling that the rehabilitator had standing to pursue Hartford’s fraud claim and reckless misrepresentation claim.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed in part and reversed in part and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded.

JOHNSON and McMORROW, JJ., concur.