author: PRESIDING JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GAMEL BRYANT, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—3156
    Opinion filed January 29,1993.

      Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, and Kenneth A. Brady and Mary B. Tribby, both of McDermott, Will & Emery, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Margaret J. Faustmann, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Gamel Bryant, was convicted of the first-degree murder of Weldon Houston (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)) and was sentenced to a term of 30 years. On appeal, defendant contends that: (1) the State failed to prove each and every element of accountability under the applicable statute (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c)); (2) the State’s accountability case, based only on circumstantial evidence, failed to prove defendant’s guilt beyond a reasonable doubt; (3) the trial court committed reversible error by instructing the jury as to the law of accountability; (4) the trial court erred by refusing to dismiss the grand jury indictment against defendant; and (5) the trial court erred by admitting gang-related evidence.

The relevant facts are as follows. Officer Nathan Silas testified that at approximately 11 p.m. on August 11, 1988, he responded to a call of a man shot at 9200 South Langley in Chicago. When he arrived, he observed a large group of teenagers at the scene. He also saw a blue Yugo parked west of the group with the rear passenger window smashed out. Silas learned that the vehicle had belonged to the deceased. The deceased was lying in the grass in a bloodstained shirt with blood coming from his head, the result of several gunshot wounds. Donnell Frazier was at the scene distraught, crying, and very upset.

Silas conducted a search of the scene and found no weapons. He observed that the streetlight at the scene was on when he arrived. He spoke to various witnesses, including Frazier. Afterwards, he and Frazier went to the home of Bruce Owens, who had been involved in the incident leading to the deceased’s murder. When they arrived at Owens’ house, Silas had a conversation with a man who identified himself as Owens, but who later turned out to be Jacques Michaud. Michaud gave Silas names and descriptions of various individuals which he passed on to other officers assigned to the case.

On cross-examination, Silas acknowledged that of the 20 or 30 people standing around the scene, he interviewed only Frazier and Jake Reed. The deceased was lying on his back, but Silas did not know whether someone had rolled him over after the shooting. Silas did not know whether the deceased possessed a gun at any time prior to being shot.

The State also called Detective Thomas Krippel. After receiving information from other officers and from Frazier, Krippel went to defendant’s home, where he was arrested. Defendant was later placed in a lineup where Frazier identified him. Krippel received a telephone call from a man who identified himself as the codefendant, Stephen Carter. Carter wanted to know why the police had been to his home. Krippel told him that the police had been there in regard to a shooting. Carter stated that he would present himself at the police station. When Carter arrived at the station, he was placed in a lineup where he was also identified by Frazier.

Michaud testified for the State that at approximately 10:30 p.m. on August 11, 1988, he left a restaurant and started riding his bike in the vicinity of 92nd and Langley when a young man, Marcus McCrane, called out to him. McCrane was standing on the northwest corner of the intersection with defendant, codefendant Carter, and another young man. Defendant asked Michaud whether his belt buckle had anything to do with gang involvement, and he said no. Defendant then swung at Michaud and Michaud ducked away. Michaud got off his bike and began wrestling with defendant at which time Carter took Michaud’s beeper. Michaud asked McCrane to “get his boys off of [him].” Michaud and defendant continued to wrestle until they heard a siren. At that time, defendant jumped off Michaud and started running.

Michaud left his bike and began walking north. He went to a pay phone and called Frazier, one of his best friends. While he was talking on the telephone, Michaud saw Carter walk by him. Michaud asked Frazier to help him get his pager back. They decided to meet at Owens’ house. Michaud admitted using Owens’ name to identify himself to police officers and stated that he did so because he had an outstanding traffic warrant and “didn’t want to involve [his] name.”

Subsequently, when Frazier arrived at Owens’ house with a police officer, he told Michaud that the deceased had been shot. Frazier described the persons who were involved, and on the basis of the descriptions, Michaud told the officer that defendant and Carter were the gunmen.

On cross-examination, Michaud stated that he was not present when the deceased was shot. To his recollection, defendant was not carrying a gun at the time he and defendant wrestled.

Dr. Nancy Jones, a Cook County medical examiner, performed the autopsy on the deceased. The autopsy revealed the presence of five gunshot wounds, which she determined to be the cause of death. She recovered one small caliber, copper-coated bullet. She found no evidence that the gun was fired within contact or close range of the deceased, but was unable to determine how far the deceased was from the gun when it was fired. Dr. Jones concluded that the gun was directly in front of the deceased when he was shot twice; however, as to at least one of the remaining shots, Dr. Jones believed that the bullet entered the body and traveled downward, indicating either that the gun was at a point higher than the body or that the deceased was already on the ground when that shot was fired.

Frazier testified for the State that on the evening in question he received a phone call from his friend Michaud. Frazier told Michaud that he would meet him at Owens’ house. Frazier was riding his motorcycle to Owens' house when the deceased, a friend of Frazier’s, called him over to a phone booth where he was on the phone. Frazier told the deceased where he was going, and they returned Frazier’s motorcycle to his house and took the deceased’s car.

On the way to Owens’ house, Frazier and the deceased stopped to talk to defendant at 92nd and Langley. Frazier asked him if he knew who had been fighting Michaud, and defendant told Frazier that he was the one. Frazier then told defendant that the pager taken from Michaud was his. Defendant informed Frazier that the “folks have the pager.” He and defendant went around the corner, while the deceased remained in the car. Frazier saw four or five men standing around and two or three sitting in a car. One of the men standing was Carter.

Defendant approached Carter and said, “[F]olks, give him that pager.” Carter gave Frazier the pager and tried to shake Frazier's hand and then “throw up a pitchfork.” Frazier gave him a brief handshake but did not “throw up a pitchfork.” Defendant became angry and said, “[Y]ou’re not right, you’re not right. I thought you were folks.” Frazier said, “I’m not folks, and I’m too old for that.” Defendant then said, “[W]ell, what the hell you doing coming around here if you’re not folks *** you’ll get whooped like your boy.” Frazier said, “[N]o, you’re not going to whoop me.” Defendant then asked Frazier, “[Y]ou want to go with me?”

Frazier decided to fight defendant because he would not be able to get away from all of the other men standing around. Frazier and defendant walked to the corner of 92nd and Langley. Carter followed them. At the same time, the deceased backed the car around the corner to where Frazier and defendant were headed. Defendant approached Frazier swinging, and the two began to fight. Frazier knocked defendant down and then heard a gunshot. He heard more gunshots and turned around to see Carter holding a gun, shooting the deceased from a distance of approximately 10 feet. Frazier heard exactly four shots. He saw the deceased fall forward holding his stomach. He did not see a gun or anything else in the deceased’s hands.

Frazier yelled to Carter, “[P]ut that up, put that up.” Carter froze momentarily, and defendant ran toward Carter saying, “[G]ive me that gun, give me the gun.” When defendant reached Carter, Frazier ran south on Langley, thinking that defendant was going to try to shoot him. Defendant took the gun from Carter. While Frazier was running, he heard another gunshot. He turned around and saw defendant standing near the deceased with his hands down holding a handgun. Frazier was approximately 45 feet from defendant at this point. The incident occurred “right by the streetlight.” He then ran around a corner, and at this point heard one more gunshot. He turned back around the corner shortly thereafter and noticed that the group of men, including defendant and Carter, had gone. Frazier ran up to the deceased, who was lying facedown bleeding as a result of being shot. He turned the deceased over and held him in his arms. The deceased was taken away by ambulance soon afterward. Frazier later observed that the rear passenger side window of the deceased’s car was smashed out.

Subsequently, Frazier accompanied police officers to Owens’ house, where Owens and Michaud were waiting. He told them that “they shot Weldon.” He identified “them” as “the guy that you [Michaud] was fighting and the guy that was with him,” and he gave Michaud a description.

The following day, Frazier viewed two lineups and identified defendant in one lineup and Carter in the other.

On cross-examination, Frazier acknowledged that at no time during the fight between Frazier and defendant or during the shooting did Carter communicate with defendant. He denied seeing a gun in the deceased’s hand or seeing him point a gun at Carter. When questioned as to whether he actually saw Carter pull the trigger, Frazier stated that he saw Carter pointing the gun directly at the deceased from a close distance, and then saw the deceased “going down like holding his stomach.” He saw defendant take the gun from Carter, and at this point Frazier started running. Though he heard one gunshot while he was running, he admitted that he did not actually see defendant fire the gun but stated that defendant was standing a short distance from the deceased holding the gun. Frazier acknowledged hearing a total of six shots. He admitted being uncertain who fired the last shot as he was around the corner and could not see who was holding the gun. He denied removing a gun from underneath the deceased after he had been shot. When questioned shortly after the incident, Frazier did not tell police that he initially heard four shots and then two additional shots.

Detective Abraham Taylor was assigned to investigate the crime scene. He testified that he searched the scene but recovered no weapon. A bullet fragment was, however, recovered from the rear headrest on the passenger side of the deceased’s blue Yugo. After interviewing Frazier and Michaud shortly after the incident, he attempted to locate defendant and Carter. Frazier did not tell Taylor that he initially heard four gunshots, or that he saw defendant standing over the deceased with the gun.

Taylor testified that he had dealt extensively with Chicago street gangs and was familiar with the street gang that refers to themselves as “folks.” Two of their signs are a crossed pitchfork in an up position and the six-pointed Star of David. In his opinion, when an individual uses the hand signal of a pitchfork in an up position, that individual is affiliated with the “folks” gang.

Officer Nathan Silas was recalled by the defense and was questioned specifically about his failure to record in the police report that Frazier had allegedly seen defendant standing over the deceased with a gun or that he initially heard four gunshots and then two additional shots while running down the street. It was also brought out that Michaud named Carter and defendant as suspects in the shooting even though he was not present when the shooting occurred.

Trent Smith testified for defendant that he was with defendant and Carter the night of the shooting. Smith stated that a person approached him on the street, and Smith asked him about the belt buckle he was wearing. Defendant then stopped the individual, and minutes later the two began wrestling. A beeper the individual was wearing fell off his belt, and Carter picked it up. Shortly thereafter, defendant and the individual stopped fighting, and they departed in separate directions.

Twenty or thirty minutes later defendant returned to the vicinity with Frazier, whose name Smith did not know. Smith, Carter and several others were standing around. Smith noticed a blue Yugo driving up at the same time defendant arrived. Defendant approached Carter and asked for the beeper, which Carter gave to him. Defendant in turn gave the beeper to Frazier, and the two then began arguing. Immediately thereafter, defendant and Frazier walked to a nearby corner, and Frazier hit defendant. At the same time, the blue Yugo was backing up on a one-way street. Defendant and Frazier began “exchanging blows.” The deceased exited the Yugo carrying a gun and hit defendant on the head. Smith shouted, “He got a pistol.” The deceased then turned towards Carter and held the gun towards Carter’s face from a distance of 5 or 10 feet. Carter then pulled out a pistol and “shots started going off.” Smith recalled four to five shots being fired. The deceased “fell forward on the gun, on the pistol” and “fell face first on the grass.”

Defendant ran towards Carter and took the gun out of Carter’s hand. He shot the gun one time at the back window of the Yugo, and then he and Carter ran. Defendant was . carrying the gun when the two fled. Smith did not see defendant shoot the deceased or point the gun in the deceased’s direction. He noticed Frazier run down the street and go around a corner. Frazier returned 20 to 30 minutes later with a guy named “Tuffy.” Frazier turned the deceased over and picked up the gun the deceased had allegedly pointed at Carter. He approached Tuffy with the gun, and “they had a discussion” and then left.

On cross-examination, Smith confirmed that he was a friend of defendant and Carter and that they spent a lot of time together. He stated that he was uncertain whether defendant and Carter were part of a gang. Smith denied hearing defendant say to Carter, “[F]olks, give him that pager,” but stated that he was not standing within hearing distance of the conversation. Similarly, he never saw Frazier shake hands with Carter, nor did he see Carter attempt to flash him a pitchfork sign.

When questioned about the fight between Frazier and defendant, Smith stated that after the deceased hit defendant on the head with a gun, the deceased and Frazier started “rushing” defendant. When asked about the gun, Smith admitted being uncertain as to whether the “shiny” object the deceased was holding was in fact a gun. The deceased fired no shots according to Smith, and he never heard Frazier yell, “Put the gun up, put the gun up” or defendant say to Carter, “Give me the gun.”

Further, Smith admitted that he never told police what he had seen that evening, and in fact the first time he gave his recollection of the events was at trial. The lighting conditions were good. After Carter shot the first time, the deceased grabbed his waist and began to fall forward. He was falling as the other shots were fired. The deceased was holding his stomach area the entire time he was falling. Defendant never told Carter to shoot the deceased.

Erin Williams, nicknamed “Tuffy,” testified that on the evening in question, he was sitting on his grandmother’s porch when Frazier approached him in a hysterical condition. Frazier told Williams that the deceased had been shot. He accompanied Frazier back to the scene of the shooting. While Williams waited by an alley, Frazier ran across the street to the deceased, who was lying facedown on the ground. He observed Frazier turn the body over on his back and pick up a “shiny object” from underneath the body. Frazier then returned to Williams and attempted to hand Williams a small caliber handgun. Frazier asked Williams if he would “put [the gun] up for him,” and Williams refused. Williams then ran back to his grandmother’s house and told her to call the paramedics. He has never seen the gun since the night of the shooting.

On cross-examination, he described the gun as a silver .22 to .25 caliber automatic handgun. At no time did Frazier tell him who shot the deceased. Williams never told the police that Frazier tried to give him a weapon the night of the shooting.

Defendant testified that on the evening of August 11, 1988, Frazier and the deceased pulled up in a small light blue car. Frazier exited the passenger side of the vehicle, approached defendant and asked him where his beeper was. Defendant told Frazier he didn’t have it. Frazier asked defendant if he was the one who had earlier fought with Michaud, and defendant said he was. Defendant then told Frazier where he could get his beeper, and they began walking down the street together. At the same time, the deceased was driving down the street in the car. When they got to the corner, defendant ran into a group of men, one of whom was Carter. Defendant asked Carter for the beeper, and when defendant received it he turned it over to Frazier. The deceased then told Frazier that they should leave, but Frazier said, “No, that’s the guy who had a fight with [Michaud]; I’m fixin’ to kick his ass.” Defendant looked at Frazier and told him he “was going to do nothing to me.” They then walked to the corner and started exchanging punches.

The blue car backed around the corner, and the deceased got out. The deceased approached defendant while he was still fighting with Frazier and hit him with a gun. Defendant fell to the ground and then heard several gunshots. Frazier began running, while defendant got up and ran over to Carter and took the gun. He ran across the street and shot one time at the back window of the deceased’s car and then fled the scene, at some point throwing the gun into some bushes. At no time did he fire any shots at the deceased.

On cross-examination, defendant denied telling Frazier that “folks got the beeper” or telling Carter and the others in the group, “[F]olks, give him the beeper.” The deceased hit him with a “hard object” while he and Frazier were fighting. He admitted running over to Carter and taking an automatic handgun out of his hand and shooting out the window of the deceased’s vehicle. He also admitted initially telling the police that he didn’t know who fired the shots and confessed to trying to hide the handgun after the shooting.

Carter testified that he picked up a telephone beeper from the ground while defendant and Michaud were fighting. Later, when defendant asked him to return the beeper, Carter retrieved it from McCrane and then gave it to defendant. Subsequently, defendant and Frazier began fighting, and he stood by observing the fight. He noticed the deceased get out of his vehicle holding a silver handgun. He saw the deceased hit defendant in the face with it. At that point, Smith shouted, “He has a gun, he has a gun.” Carter stated that the deceased then “rushed over towards [him]” pointing the gun at him starting from a distance of 10 to 12 feet. Carter told him twice to stop. The deceased continued to move toward him. Carter stated that he thought the deceased was “fixing to kill [him].” Carter then pulled out his gun and fired it four or five times. Defendant never shot at the deceased.

On cross-examination, Carter stated that the deceased did not begin to fall until after he had fired the fourth shot from his gun. He acknowledged that the deceased never fired a shot from any gun. He also stated that his gun was a .25 caliber automatic which held seven bullets.

When questioned by police initially, Carter admitted telling them that the shots were fired from an unknown location by people unknown to him and later that after he heard the shots he ran down an alley with defendant. He further admitted never telling police that he shot the deceased in self-defense. However, on redirect examination, Carter stated that he did inform the police that the deceased hit defendant on the head with a .25 caliber automatic gun. Carter confirmed that he and defendant had discussed the case at various times up to the time of trial.

On rebuttal, the State called Krippel. Krippel testified that when defendant was arrested the day following the shooting, defendant gave an oral statement to Krippel at which time he stated that some shots had been fired but he did not know from where or by whom. He did not tell Krippel that he fired any shots, although he was not directly asked that question. Krippel also testified as to an oral statement given by Carter in which Carter stated that he was afraid of guns and did not own any weapons.

During the jury instructions conference, defense counsel objected to the State’s request to tender Illinois Pattern Jury Instructions, Criminal, Nos. 5.03 and 7.02A (2d ed. 1981 & Supp. 1987) relating to the law of accountability. Defense counsel argued that there was insufficient evidence to find defendant guilty of first-degree murder on an accountability theory. The trial court overruled defense counsel’s objection and allowed the instructions to be given to the jury. In addition, the trial court allowed defendant the opportunity to have a second-degree murder instruction given to the jury, which he declined.

Defendant was tried along with his codefendant, Carter, and was found guilty by a jury of first-degree murder. He was subsequently sentenced to 30 years.

Defendant first contends that the State failed to prove the required elements of accountability under the applicable accountability statute (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c)) and thus did not prove his guilt beyond a reasonable doubt. The State argues, on the other hand, that the evidence presented at trial was sufficient to find defendant guilty of first-degree murder both as a principal and on the basis of accountability.

When the sufficiency of the evidence is raised as an issue on appeal, the question the reviewing court must answer is “ ‘whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472-73, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) As the court of review, we must consider that the jury heard and saw the witnesses, and thus was in the best position to judge the witnesses’ credibility, to determine the weight to be given their testimony, to decide the inferences to be drawn from the evidence, and to resolve any conflicts in the evidence. (People v. Reid (1990), 136 Ill. 2d 27, 61, 554 N.E.2d 174, 190.) We are not at liberty to substitute our judgment for that of the jury on those issues. Thus, reversal of a conviction is not warranted “ ‘unless the evidence is so unreasonable, improbable, or so" unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.’ ” Reid, 136 Ill. 2d at 61, 554 N.E.2d at 190, quoting Young, 128 Ill. 2d at 51, 538 N.E.2d at 474.

The Illinois accountability statute (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c)) holds a person legally accountable for the conduct of another when:

“Either before Or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

Mere presence at the scene of a crime or negative acquiescence in the commission thereof is not sufficient to find a defendant guilty under the accountability statute in the absence of other circumstances. (Reid, 136 Ill. 2d at 61, 554 N.E.2d at 190; People v. Carpenter (1979), 74 Ill. App. 3d 770, 775, 393 N.E.2d 50, 54.) Nor is a defendant’s presence at the scene of a crime coupled with flight from the scene enough to prove accountability. Reid, 136 Ill. 2d at 61, 554 N.E.2d at 190.

Nevertheless, “ ‘[ejvidence of events occurring after the crime [has] been committed is competent to show participation in the crime itself.’ ” (Reid, 136 Ill. 2d at 61, 554 N.E.2d at 190, quoting People v. Ruiz (1982), 94 Ill. 2d 245, 257, 447 N.E.2d 148, 152.) Thus, proof that a defendant was present during the commission of the crime without disapproving or opposing it, that he fled from the scene, maintained a close association "with his companions after the commission of the crime, and failed to report the crime are all factors which a jury may consider in determining the defendant’s legal accountability. (Reid, 136 Ill. 2d at 62, 554 N.E.2d at 190; People v. Reed (1982), 104 Ill. App. 3d 331, 338, 432 N.E.2d 979, 985.) Moreover, “ ‘words oí agreement are not essential to establish a common purpose to commit a crime because the common design can be inferred from the circumstances surrounding the perpetration of the unlawful conduct’ ” (Reid, 136 Ill. 2d at 62, 554 N.E.2d at 190, quoting People v. Ruckholdt (1984), 122 Ill. App. 3d 7, 10-11, 460 N.E.2d 847, 850), or from evidence of “the spontaneous and combined participation of a group in the perpetration of the offense.” Reed, 104 Ill. App. 3d at 338, 432 N.E.2d at 984-85.

Upon reviewing the evidence in the light most favorable to the prosecution, we are satisfied that a rational jury could well have determined beyond a reasonable doubt that defendant was accountable for the deceased’s murder. Though no evidence was presented at trial that defendant and Carter had a preconceived plan to kill the deceased, the circumstances before, during, and after the shooting were sufficient to establish a common purpose in what may have begun as a spontaneous action on Carter’s part.

Although both defendant and Carter denied being members of the “folks” street gang, Frazier testified that when he asked defendant where his telephone pager was, defendant informed him that “folks have the pager.” He and defendant then walked together to where Carter and others were standing, and defendant said, “[F]olks, give him that pager.” Carter then gave Frazier the pager and tried to shake Frazier’s" hand and then “throw up a pitchfork.” Frazier refused to reciprocate and told defendant and Carter that he was not a “folk.” Upon learning Frazier was not a “folk,” defendant became angry, and a fistfight between the two ensued.

Carter followed defendant and Frazier to the place where they were about to fight, as did the deceased. There is no question that the deceased and Frazier were together, and that defendant and Carter knew it. While Frazier and defendant fought, Carter fired several shots at the deceased. Defendant then ran up to Carter, grabbed his gun, and fired one or two additional shots. Defendant admitted firing one shot at the deceased’s car because “he [was] angry.” He did not take the gun from Carter in an attempt to disarm him, but took it to continue the shooting. He and Carter then fled together, and defendant threw the gun into some bushes. Defendant never reported the shooting to police, and in fact told police initially that he did not know who fired the shots.

Further, contrary to what defendant argues, there was evidence presented at trial, both through Frazier and Dr. Jones, to support the State’s position that defendant also shot the deceased. Frazier testified that once defendant ran to grab the gun from Carter, he began running. He heard a gunshot, and when he turned around he saw defendant standing near the deceased holding the gun in a downward direction. A total of six shots were fired from the gun. Frazier heard Carter fire exactly four times, and once defendant had possession of the gun, he heard another two shots. Dr. Jones testified that the deceased had been shot five times. One of the bullets traveled downward, indicating in Dr. Jones’ opinion either that the gun was aimed from a point higher than the body or that the deceased was already lying down when that particular shot was fired. From this collective testimony, the jury could well have concluded that defendant fired a shot into the deceased.

The State’s theory was that the shooting was motivated by defendant’s and Carter’s anger that Frazier and his companion, the deceased, were not “folks.” Defendant tells a contrary story. However, as stated, it is within the exclusive province of the trier of fact to judge the believability of the witnesses testifying at trial. (Reid, 136 Ill. 2d at 61, 554 N.E.2d at 190.) We must simply determine whether the evidence of defendant’s acts before, during, and after the commission of the murder indicates a common design between him and Carter to commit an unlawful act. We find, after viewing the evidence in the light most favorable to the prosecution, that a rational trier of fact could have so concluded. Moreover, we find that the evidence was also sufficient to find defendant guilty as a principal.

Defendant also argues that the State’s case of accountability was based purely on circumstantial evidence, and as such was not proved beyond a reasonable doubt. The law is well settled, however, that “[t]he State’s proof that a defendant committed an offense may be established entirely by circumstantial evidence.” (People v. Bruce (1989), 185 Ill. App. 3d 356, 370, 541 N.E.2d 708, 716; see also People v. Williams (1977); 66 Ill. 2d 478, 484, 363 N.E.2d 801, 804.) Further, a conviction based solely on circumstantial evidence will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.) The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of evidence. Rather, it is sufficient if all the evidence, when viewed collectively, satisfies the jury of the defendant’s guilt beyond a reasonable doubt. Bruce, 185 Ill. App. 3d at 370, 541 N.E.2d at 716-17.

Although no prosecution witness testified that he actually saw defendant shoot the deceased, the circumstantial evidence presented by the State is not “so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt” either as a principal or as an accessory under an accountability theory. Defendant argues that there was abundant direct evidence which contradicted the State’s case. Much of that direct evidence, however, came from defendant, Carter, and Smith, whose testimony the State successfully impeached. When questioned on cross-examination, Smith admitted that he never told the police what he had seen the night of the shooting. The first time he gave his recollection of the events was at trial. Defendant admitted initially telling the police that he didn’t know who fired any shots and he also confessed to attempting to hide the gun. Similarly, Carter initially told the police that the shots were fired from an unknown location by people unknown to him, and he never told the police that he shot the deceased in self-defense. Ultimately, it was the jury’s responsibility to resolve any conflicts in the evidence (Collins, 106 Ill. 2d at 262, 478 N.E.2d at 276-77), and the jury chose to accept the State’s circumstantial evidence over that of defendant. On the basis of the evidence, we cannot say that this conclusion constituted reversible error.

Defendant next asserts that the trial court erred by instructing the jury on the law of accountability. Because of our finding that the State proved its case against defendant beyond a reasonable doubt, we necessarily find that giving the accountability instructions was proper.

Moreover, in People v. Batchelor (1990), 202 Ill. App. 3d 316, 331, 559 N.E.2d 948, 958, we held:

“Although submission of an instruction on accountability in the absence of supporting evidence is error [citation], it is proper to instruct the jury on principal action and accountability where the evidence supports both theories. [Citations.] Evidence, however slight, on accountability along with evidence of action as a principal offender is sufficient to support both instructions regardless of whether both theories were advanced in the State’s case in chief. [Citation.]”

As we have previously stated, we believe there was sufficient evidence to find defendant guilty of murder both as a principal and under an accountability theory. Thus, we do not find that the trial court erred by instructing the jury as to the law of accountability.

Defendant next contends that the trial court committed reversible error by not dismissing the grand jury indictment. In this regard, defendant first asserts that the State used the testimony of Detective Krippel to confuse and mislead the grand jurors, presenting evidence against Carter as though it applied to both Carter and defendant. We find no merit to this contention, however, because any confusion which may have existed was cleared up by Krippel’s later testimony explaining in greater detail the events as he understood them to have occurred the night the deceased was shot.

Defendant also argues that Krippel did not have a sufficient basis for his testimony before the grand jury that “[defendant] shot the victim.” The trial court, however, found that Krippel’s testimony, though conclusory in its form, was sufficiently based on information he had gathered during his investigation, particularly from his interview with Frazier wherein Frazier described what he saw and heard the night of the shooting. Consequently, the trial court concluded that Krippel’s testimony was not knowingly false or given in reckless disregard of the truth, as defendant also alleges. We agree and hold that the trial court’s refusal to dismiss the indictment was proper.

Finally, defendant argues that the trial court committed reversible error by admitting gang-related evidence. Defendant asserts that the State’s sole purpose in seeking to admit such evidence was to inflame the prejudices of the jury in an effort to convict defendant.

The law in Illinois is clear that, unless the prosecution links the gang-related evidence to the crime charged, that evidence is inadmissible. (People v. Smith (1990), 141 Ill. 2d 40, 58, 565 N.E.2d 900, 907.) Evidence indicating a defendant was a member of a gang or was involved in gang-related activity is admissible to show common purpose or design or to offer a motive for an otherwise inexplicable act, provided there is sufficient proof that such membership or activity is related to the crime charged. Smith, 141 Ill. 2d at 58, 565 N.E.2d at 907.

We find that there was sufficient evidence to support the State’s theory that the seemingly inexplicable attack on the deceased was gang related. Frazier testified that when he asked defendant where his pager was, defendant replied, “Folks have the pager.” Furthermore, when defendant and Frazier approached Carter and the others, defendant said, “[Fjolks, give him that pager.” Frazier further testified that after Carter gave Frazier the pager, he tried to shake Frazier’s hand and then throw up a “pitchfork” sign. Defendant became angry and said, “[Yjou’re not right, you’re not right. I thought you were folks. *** [W]hat the hell you doing coming around here if you’re not folks *** you’ll get whooped like your boy.” Frazier said, “[N]o, you’re not going to whoop me.” Defendant then asked Frazier, “[Y]ou want to go with me?” Defendant and Frazier began fistfighting, and soon after that the shooting occurred. Moreover, Detective Taylor testified that based on his extensive knowledge of Chicago gangs, the pitchfork is a sign unique to the “folks” street gang.

Defendant maintains that Detective Taylor’s testimony merely indicated that the word “folks” and the pitchfork sign are connected with gangs, but it does not prove that defendant or Carter was a member of a gang. The jury was free, however, to infer from Taylor’s and Frazier’s testimony collectively that defendant and Carter were both “folks,” and we cannot say that such an inference would have been unreasonable.

The evidence clearly established that neither Frazier nor the deceased was “folks.” This “gang” evidence was therefore relevant to show the purported motive behind defendant’s and Carter’s actions, starting with the fight between Frazier and defendant immediately following their verbal altercation to the eventual and otherwise inexplicable shooting of the deceased. Moreover, the trial court allowed in only as much gang testimony as was necessary to establish this motive. We conclude that the probative value of this evidence outweighed any prejudicial impact it may have had on defendant.

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

Judgment affirmed.

RAKOWSKI and GIANNIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY CONTRERAS, Defendant-Appellant.
    First District (1st Division)
    No. 1—92—0951
    Opinion filed February 1, 1993.

      Rita A. Fry, Public Defender, of Chicago (Beth I. Solomon, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, and Eileen M. O’Neill, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant was convicted of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3), then sentenced as a Class X offender (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(c)(8)) to a term of nine years’ imprisonment. On appeal, defendant contends that his sentence must be vacated because the State did not provide him notice in the charging instrument that it would seek an enhanced sentence upon conviction.

The evidence adduced at trial showed that defendant was identified as one of two men who were apprehended at the scene of a residential burglary at 4342 N. Francisco in Chicago. The evidence further showed that about 3 p.m. on February 4, 1991, a neighbor notified police of a burglary in progress, and when they arrived at the designated address, one of the officers saw defendant in the interior stairway which led to the burglarized apartment. Defendant and another offender then attempted to escape through the roof but were arrested.

In his post-trial motion, defendant asserted that sentencing as a Class X offender would be inappropriate since notice of this possibility was not included in the charging instrument. The trial court rejected his argument; then, based on the uncontested evidence of defendant’s separate, prior felony convictions in the sequence required by statute, the court sentenced defendant as a Class X offender to nine years’ imprisonment.

On appeal, defendant asserts that his sentence was improper because the State did not comply with section 111 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 111 — 3), which requires that defendant be notified in the charging instrument of the State’s intent to seek an enhanced sentence. Since the State failed to include this notice in the charging instrument, defendant contends that his sentence must be vacated and his cause remanded for sentencing on his Class 1 felony conviction. The State responds that section 111 — 3 does not apply to the mandatory sentencing provision at issue; and, alternatively, the State says that if this court determines otherwise, the sentence should be affirmed since defendant was not prejudiced by the lack of notice.

Section 5 — 5—3(c)(8) of the Unified Code of Corrections provides for mandatory Class X sentencing once the elements specified therein are satisfied. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(c)(8); People v. Kennard (1992), 204 Ill. App. 3d 641, 561 N.E.2d 1188.) In this appeal, defendant does not dispute his prior felony convictions or the sequence in which they were committed to establish his eligibility under that statute (see People v. Williams (1992), 149 Ill. 2d 467), but he maintains that imposition of the enhanced sentence was erroneous because the State failed to notify him of this possibility in the charging instrument. Defendant has engrafted this notice requirement from section 111 — 3 of the Code of Criminal Procedure of 1963, which provides in pertinent part:

"When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purpose of this Section, ‘enhanced sentence’ means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense ***; it does not include an increase in the sentence applied within the same level of classification of offense.” Ill. Rev. Stat. 1989, ch. 38, par. Ill — 3(c).

Under the well-settled rules of statutory construction, the starting point in any examination is the language of the statute. (Castillo v. Jackson (1982), 149 Ill. 2d 165, 594 N.E.2d 323 (and cases cited therein).) In interpreting a statute a court is required to give the language its plain and ordinary meaning. Maloney v. Bower (1986), 113 Ill. 2d 473, 498 N.E.2d 1102.

Applying these principles to the above-quoted statute, we find that its provisions apply only to those situations where the State intends to enhance the penalty by raising the classification of the offense due to a prior conviction. (See, e.g., retail theft (Ill. Rev. Stat. 1989, ch. 38, par. 16A — 10(2)) and criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(b)).) The language explicitly excludes those situations, such as the one at bar, where the sentence is increased because of a prior conviction, but the classification of the offense remains the same.

In addition, we observe that section 5 — 5—3(c)(8) of the Unified Code of Corrections contains no notice requirement in contrast to the habitual criminal statute (Ill. Rev. Stat. 1989, ch. 33B — 1 et seq.), which requires reasonable notice and an opportunity to be heard on the recidivist charge. (Oyler v. Boles (1962), 368 U.S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501.) We also note that the State is not required to give notice of its intent to seek the death penalty prior to trial. (People v. King (1986), 109 Ill. 2d 514, 488 N.E.2d 949.) Given the consequences in those situations, as compared to the one at bar, we find support for our conclusion that the State is not required to include notice of its intent to seek an enhanced penalty in the charging instrument.

In sum, where the sentence, but not the classification of offense, was enhanced by defendant’s prior convictions, we find no statutory violation in the sentencing procedure employed here where defendant was sentenced as a Class X offender in compliance with People v. Williams.

The judgment of the circuit court of Cook County is therefore affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that defendant be assessed $50 as costs for the State’s defense of this appeal and incorporate it as part of our judgment.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE RIZZI JUSTICE GREIMAN,

text:
    DENISE KILLINGSWORTH, Plaintiff-Appellant, v. BRUCE J. FINNE, Secretary, Illinois Civil Service Commission, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—90—2437
    Opinion filed February 3,1993.
    Rehearing denied March 9,1993.
    GREIMAN, J., dissenting.
    Dale A. DeLoriea, of Chicago, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Denise Killingsworth, appeals from an order of the circuit court affirming the decision of defendant, Illinois Civil Service Commission (Commission), to discharge plaintiff for cause from her employment with defendant Illinois Department of Public Aid (IDPA). The sole issue on appeal is whether the trial court’s order affirming the decision of the Commission is contrary to the manifest weight of the evidence. We affirm.

In April 1986, plaintiff requested and received an unpaid pregnancy leave of absence from her employment as a clerk III at IDPA. In May 1986, plaintiff made application to IDPA for public aid benefits because she was no longer receiving a paycheck due to her unpaid leave of absence. While completing her application, plaintiff indicated to IDPA eligibility specialist Charlene Carter that she was receiving child support in the amount of $175 per month. Carter informed plaintiff that she was required to forward all child support payments to IDPA in Springfield as a condition for receiving public aid benefits. Plaintiff signed her public aid benefits application, which included the following provision:

“I further agree to forward all child support payments I receive to the Illinois Department of Public Aid.”

On July 1, 1986, plaintiff forwarded a child support check in the amount of $103.85 to IDPA in Springfield. Thereafter, plaintiff failed to forward any additional child support payments to IDPA. On November 3, 1986, plaintiff returned from her leave of absence to her position with IDPA.

In February 1987, an IDPA internal investigation discovered that plaintiff did not forward additional child support payments to IDPA after July 1, 1986, while she continued to receive public aid benefits. On August 1, 1987, plaintiff was terminated for cause from her position at IDPA for cashing, receiving and converting to her own use child support checks which she had assigned to IDPA as a condition for her receipt of public aid benefits. She appealed her dismissal to the Commission, which upheld her discharge. Plaintiff filed a complaint for administrative review in the circuit court pursuant to the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). The circuit court affirmed the Commission’s decision. This appeal followed.

Plaintiff was discharged from her position at IDPA based on the following charges:

“Denise Killingsworth employed by the Department of Public Aid as a Clerk III is discharged for cause, that cause being that she received, cashed and converted to her own use checks for child support which were assigned to the State of Illinois and which she promised to send to the Department of Public Aid upon receipt, in that:
1. On 5/1/86, Ms. Killingsworth applied for Public Assistance and assigned all support rights to the Illinois Department of Public Aid for as long as she was on assistance. She also agreed to forward all child support payments she received to the Department. While Ms. Killingsworth was on Public Assistance, she received $2137.90 in child support payments which she kept and failed to forward $2034.05 of the payments to the Department resulting in overpayments in the amount of $1675.00 being made to her.
2. Ms. Killingsworth failed to report to the Illinois Department of Public Aid that she had received the payments referred to in No. 1 above.
3. The conduct described in No. 1 and 2 above violates Section 8A — 2 and/or 8A — 4 of Chapter 23 and/or Sections 16 — 1 and/or 17 — 6 of Chapter 38 of the Illinois Revised Statutes.”

After reviewing the record in its entirety, we find that IDPA has established by clear and convincing evidence that plaintiff violated section 16 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1) when she knowingly failed to forward a minimum of eight child support checks totalling $830.80 to IDPA between July 21, 1986, and November 3, 1986, as required as a condition for receiving public aid benefits. We also find that the sanction of discharge for plaintiff’s conduct here is not arbitrary, unreasonable or unrelated to the requirements of service for employment with IDPA. We, therefore, conclude that the trial court’s order affirming the decision of the Commission is not contrary to the manifest weight of the evidence.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

TULLY, P.J., concurs.

JUSTICE GREIMAN,

dissenting:

I must respectfully dissent.

The majority opinion states: “The sole issue on appeal is whether the trial court’s order affirming the decision of the Commission is contrary to the manifest weight of the evidence.” 241 Ill. App. 3d at 1027.

However, on appeal, plaintiff raises two questions which are , within the scope of our review in these discharge cases.

The Illinois Supreme Court mandates a two-step process when reviewing an administrative agency’s decision to discharge an employee.

“A court’s scope of review of an administrative agency’s decision regarding discharge is a two-step process. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. ***
The second step in the court’s analysis is to determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist.” Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 550-51, 426 N.E.2d 885.

See also Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105, 449 N.E.2d 115; Rispoli v. Police Board (1989), 188 Ill. App. 3d 622, 635-36, 544 N.E.2d 1063; Linderman v. Illinois Civil Service Comm’n (1989), 188 Ill. App. 3d 554, 556, 544 N.E.2d 1095.

Regarding the first step, the majority finds that clear and convincing evidence established plaintiff’s violation of the criminal offense of theft (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1).

Without reaching the merits of such a sua sponte determination of a criminal violation, we note that defendants here do not even suggest that plaintiff was guilty of an actual crime. In their brief, defendants expressly state that “the instant case is not one where criminal statutes were made the basis of the charges against plaintiff.” Defendants further state that “plaintiff was charged and the administrative hearing was conducted concerning the issue of whether plaintiff improperly withheld child support checks.”

Moreover, neither the Commission nor the trial court found plaintiff guilty of any criminal offense. Although IDPA alleged that plaintiff’s “conduct violates provisions of the Illinois Public Assistance Act and the Illinois Criminal Code; specifically 23 Ill. Rev. Stat., Sec. 8A2 and 8A4, and 38 Ill. Rev. Stat., Sec. 16 — 1 and 17 — 8,” the Commission found no statutory violations had been proved and stated:

“The Petitioner [Department of Public Aid] has proved by a preponderance of evidence that the Respondent [plaintiff] cashed, received, and converted to her own use, funds she was supposed to forward to the Department of Public Aid. Her conduct is such that even though it may not be in technical violation of provisions of the Public Aid Act or Criminal Code, it is reprehensible enough to be considered good cause for discharge on the basis of sound public policy considerations. Though the Department has not proved the exact amount by which Respondent was overpaid, nor the specific provisions of the law were violated, it has proven that the Respondent kept money to which her employer was entitled — conduct which represents good cause for her discharge.” (Emphasis added.)

Similarly, the circuit court made no such finding of criminal activity. At the close of the hearing the trial court observed:

“[Notwithstanding the declaration that the specific chapter violations, Chapter 23 [Public Aid Act], and Chapter 38 [Criminal Code] were not proven, the fraud and theft, that that does not mean that a violation of a standard which was sufficient to cause the discharge — in other words, the conduct in the opinion of the Court is cause and that decision that it was cause is not against the manifest weight of the evidence as a matter of law simply because the theft charge which was referenced was not proven.” (Emphasis added.)

Suddenly, when this case reaches the appellate court, plaintiff is found to have committed the criminal offense of theft.

Notwithstanding the majority’s curious finding as to plaintiff’s criminal guilt, I believe that the first step in the process of review has been satisfied because the agency’s findings are not contrary to the manifest weight of the evidence, since there is- no dispute that plaintiff failed to forward child support checks to IDPA. Moreover, an agency’s factual findings and conclusions are held to be prima facie true and correct. Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.

I believe the crux of the present case rests with the second required step of the reviewing process, i.e., whether the facts sufficiently constitute cause for discharge.

The majority offers a cursory, one-sentence conclusion without analysis which apparently is meant to refer to this second step:

“We also find that the sanction of discharge for plaintiff’s conduct here is not arbitrary, unreasonable or unrelated to the requirements of service for employment with IDPA.” 241 Ill. App. 3d at 1029.

Our supreme court has recently observed that the appellate courts of our State are required to provide an analysis and reasons for their decision. Siegel v. Levy Organization Development Co. (1992), 153 Ill. 2d 534, 544 (“it is imperative that reviewing courts set forth their rationale and discuss the relevant case law pertaining to the issues in a given case”).

Regarding the second step, the Personnel Code prohibits the maximum sanction of discharge except “for cause.” (Ill. Rev. Stat. 1987, ch. 127, par. 63M11.) Since no statutory definition of “cause” is provided, the term “has been judicially defined as some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service, and which the law and sound public policy recognize as good cause for no longer holding the position.” Bell v. Civil Service Comm’n (1987), 161 Ill. App. 3d 644, 649, 515 N.E.2d 248.

In contrast to factual findings, an agency’s determination of cause for discharge is not prima facie true and correct but rather is subject to judicial review. (Bell, 161 Ill. App. 3d at 648, citing Brown v. Civil Service Comm’n (1985), 133 Ill. App. 3d 35, 39, 478 N.E.2d 541.) Accordingly, an agency’s “determination to discharge an employee may be overturned if the decision is arbitrary, unreasonable, or unrelated to the requirements of the service.” Bell, 161 Ill. App. 3d at 648.

We do not lightly overturn the sanctions imposed by the agency, but we may take this extraordinary action where such sanctions are overly harsh and may consider mitigating circumstances in our determination. The test is not whether we may substitute our judgment for the judgment of the agency, the Commission or the trial court, but whether in view of the circumstances, the agency acted unreasonably or arbitrarily. Pelling v. Illinois Racing Board, (1991), 214 Ill. App. 3d 675, 574 N.E.2d 116.

Plaintiff had been a welfare recipient, off and on, for a number of years and was employed by IDPA as a clerk III requiring her to answer the telephone at the front desk, give applicants some assistance and to receive papers and filings. On at least one prior occasion when plaintiff was a recipient, she was required to file suit against IDEA to obtain benefits which were rightfully due her.

At the time she took maternity leave from IDEA, plaintiff was a single mother with four children supporting herself with her IDEA wages and a small child support award. While the evidence is clear that she did not remit the child support during her maternity leave, the record is anything but clear as to her understanding of the process and the appropriate disposition of checks to be received in the future. Although plaintiff allegedly lacked an understanding as to where the checks should be forwarded, she was aware at all times that she was not entitled to retain the child support; however, the hearing officer and the Commission should have considered her confusion as evidence of her mental state and lack of intent to defraud IDEA.

The majority and the trial court conclude that the findings of fact are not contrary to the manifest weight of the evidence. However, we must also determine whether these findings constitute an appropriate basis for discharge. Rispoli, 188 Ill. App. 3d at 635; Linderman, 188 Ill. App. 3d at 556.

Moreover, the agency has a responsibility to show in dealing with its employees and the public that its directions and instructions are clear and concise and that the recipient has an appropriate understanding of responsibilities to be imposed. Brown, 133 Ill. App. 3d 35, 478 N.E.2d 541.

Occasionally, resort must be had to the public purposes or expressed goals of agencies created by State government. Section 1 — 1 of the Illinois Public Aid Code provides that IDPA should “encourage and assist applicants and recipients to maintain a livelihood compatible with health and well being and to develop their self-reliance and realize their capacities for self-care, self-support, and responsible citizenship.” (Ill. Rev. Stat. 1987, ch. 23, par. 1 — 1.) Moreover, the Personnel Code exists to protect the public, and in carrying out that purpose, it protects civil service employees. Brown v. Department of Corrections (1990), 199 Ill. App. 3d 648, 650, 557 N.E.2d 492.

While we ought not to applaud plaintiff’s neglect in forwarding the support payments received, there are other options which IDPA might have explored. The Personnel Code provides for a 30-day suspension (Ill. Rev. Stat. 1987, ch. 127, par. 63M11), and IDPA may enter into agreements with recipients for restitution where overpayments have occurred. Instead, IDPA chose to discharge plaintiff from its employ. The trial judge shared my concern in this regard in remarking:

“The second aspect, and I think that it was the most troublesome for me, is the extent of the sanctions of discharge and whether or not that is arbitrary, capricious, and does not serve the ends of the institution here or the public body that is involved. It is a factor, I think, that has to be contrasted with the type of position that this plaintiff [held] and the responsibility that this plaintiff had.”

I believe that the maximum sanction of discharge under the circumstances of this case was unreasonable and arbitrary

A concern may be voiced that plaintiff would be entitled to a significant lump sum were we to reinstate her to employment at this time. However, the Personnel Code is clear that the State would receive a credit against the compensation due plaintiff for amounts earned by the employee from any other source and unemployment compensation payments (Ill. Rev. Stat. 1991, ch. 127, par. 63blllb) as well as a credit for any public aid that she may have received during the period after discharge.

Although plaintiff has failed to comply with the requirements of the Public Aid Code in reporting and remitting the sum of $830.80 in child support, IDPA and the courts should be mindful of the mission and goal of IDPA as expressed in section 1 — 1 of the Public Aid Code and fashion a remedy to fit the offense. I would require plaintiff’s reinstatement and return the matter to the Commission to fashion a remedy more compatible with the goals of the Public Aid Code.


author: JUSTICE GIANNIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAUDE ELLIS, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—3393
    Opinion filed February 5,1993.
    Rehearing denied March 11,1993.
    Dennis M. Doherty, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Janet C. Mahoney, Special Assistant State’s Attorney, and Renee Goldfarb and Theodore F. Burtzos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GIANNIS

delivered the opinion of the court:

Defendant, Claude Ellis, was arrested on July 16, 1988, and charged with possession of a controlled substance with intent to deliver. Upon posting a cash bond, defendant was released from custody. On October 9, 1988, defendant was again arrested and charged with possession of a controlled substance with intent to deliver. This arrest arose out of events completely separate and distinct from the events which resulted in the arrest of July 16, 1988. Defendant was convicted of both offenses after separate trials conducted in July 1990.

Upon conviction for the July 16, 1988, offense, defendant was sentenced to a term of 12 years. On appeal, defendant contends that he was improperly sentenced under a statute which specified a greater volume of cocaine than was proven by the State. After defendant was found guilty of the October 9, 1988, offense, he was sentenced to a term of eight years. The trial court ordered that this sentence be served consecutive to the penalty imposed for the previous conviction. Defendant appeals his second conviction, asserting that his fourth amendment rights were violated and that the court erred in ordering that the two sentences be served consecutively.

Although these actions have been consolidated on appeal, we will address them separately because defendant has raised separate and distinct grounds for reversal.

APPEAL FROM THE CONVICTION FOR THE JULY 16,1988, OFFENSE

Based upon information received through an anonymous tip, Chicago police officers set up surveillance near defendant’s home in Chicago on July 16, 1988. Members of the surveillance team observed defendant remove packets of white powder from the trunk of his car and place those packets into a white plastic shopping bag. When defendant saw the surveillance unit, he walked to the edge of the street and put the white plastic bag down on the curb. The officers then arrested defendant and seized the plastic bag. At trial, the State produced the white plastic shopping bag. Inside this bag were 16 separate packages of white powder, one of which was a large, clear plastic bag. The remaining 15 packages consisted of smaller, individually sealed packets.

Chicago police department chemist Margaret Kampert testified that the clear plastic bag of white powder weighed 240.9 grams. Kampert also weighed 3 of the 15 smaller packets and found that they weighed 28.22 grams, 9.91 grams, and 7.36 grams, respectively. The total weight of these four bags amounted to 286.40 grams. Kampert testified that she did not weigh the remaining 12 packets, but instead estimated their weight and, based upon that estimation, concluded the total weight of all 16 bags was 463.30 grams.

Kampert stated further that she conducted three screenings and one conclusive test for controlled substances on the contents of the clear plastic bag weighing 240.9 grams. The results of these tests established the presence of cocaine. Kampert testified that she conducted preliminary tests on the three smaller packets, and the results of those tests also indicated the presence of cocaine. Kampert did not, however, test the remaining 12 packets. Several months later, Kampert conducted another test on the powdered substance contained in the clear plastic bag which weighed 240.9 grams. Upon examination of this test result, Kampert determined that the powdered substance was cocaine with a 95% purity level.

Defendant was found guilty of possession of a controlled substance with intent to deliver.

At the sentencing hearing, the prosecutor opened his remarks by stating that the first offense “involved 463 grams of cocaine, which according to the statute, carries a minimum of 12 years, and a maximum sentence of 50 years.” Defense counsel did not object or make any attempt to correct this statement. After additional arguments in aggravation and in mitigation, the trial judge sentenced defendant to 12 years, but did not specify the statutory subsection upon which his sentencing decision was based. The indictment and the mittimus reflect only that defendant was charged and sentenced under section 401(a)(2).

Defendant contends that the sentence imposed for this offense must be vacated or reduced because it was based upon the wrong statutory subsection.

The State initially claims that defendant has waived his right to object to this sentence by failing to raise the objection at the sentencing hearing and by failing to file a post-sentencing motion challenging the sentence. (See People v. Morrison (1985), 137 Ill. App. 3d 171, 185, 484 N.E.2d 329.) We note, however, that a motion to reduce a sentence is not required, and the failure to file such a motion will not result in waiver of the issue on appeal. People v. Thomas (1990), 193 Ill. App. 3d 525, 527, 550 N.E.2d 29.

Defendant asserts that the trial court erred in sentencing him under the statutory subsection which mandated a penalty of 12 to 50 years where the State has proven possession of 400 to 900 grams of cocaine. (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401(a)(2)(C).) Defendant claims that in imposing a sentence of 12 years, the trial judge relied upon the prosecutor’s statement that defendant possessed 463.3 grams of cocaine and improperly considered the volume of white powder in all 16 packages. On appeal, defendant argues that he should have been sentenced under the section providing a penalty of 9 to 40 years where the State has proven possession of 100 to 400 grams of cocaine. Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401(a)(2)(B).

Where separate bags or containers of a suspected drug are seized, a sample from each bag or container must be conclusively tested to prove that it contains a controlled substance. (People v. Hill (1988), 169 Ill. App. 3d 901, 911, 524 N.E.2d 604; People v. Ayala (1981), 96 Ill. App. 3d 880, 882, 422 N.E.2d 127; People v. Games (1981), 94 Ill. App. 3d 130, 131, 418 N.E.2d 520.) Consequently, defendant’s sentence must be predicated upon that volume of powdered substance which was accurately weighed and conclusively tested for the presence of cocaine.

In the instant case, only the substance in the large clear plastic bag was accurately weighed and conclusively tested by Kampert. According to Kampert’s testimony, she weighed only 3 of the 15 smaller packets and estimated the weight of the other 12. In addition, Kampert did not conclusively test any of the 15 smaller packets to verify the presence of cocaine. Rather, she conducted screening tests on the three packets which she had weighed. The remaining 12 packets were not subjected to any tests at all.

This evidence established that Kampert had fulfilled the examination requirements for only the largest of the 16 packages recovered from defendant. Accordingly, defendant’s sentence must have been based upon the 240.9 grams of cocaine contained in the large clear plastic bag. We find that defendant’s 12-year sentence was proper under the section which mandates a term of 9 to 40 years where the State has proved that defendant possessed between 100 and 400 grams of cocaine. Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401(a)(2)(B).

A court of review must presume the trial court considered only competent evidence unless the contrary affirmatively appears of record. (People v. Schmitt (1989), 131 Ill. 2d 128, 138-39, 545 N.E.2d 665; People v. Richardson (1988), 123 Ill. 2d 322, 361, 528 N.E.2d 612, cert. denied (1989), 489 U.S. 1100, 103 L. Ed. 2d 943, 109 S. Ct. 1577.) In the instant case, the trial judge heard the evidence presented by the State and was aware that only the bag weighing 240.9 grams had been accurately weighed and conclusively tested for the presence of cocaine. Absent a showing to the contrary, we must presume that the trial court sentenced defendant under the applicable statutory section and according to the amount of controlled substance which was proven at trial. We find no indication in the record that defendant was sentenced under the wrong statutory section, and we hold defendant has not established that the court’s sentencing decision was influenced by the opening remarks of the prosecutor.

The imposition of a sentence is a matter of judicial discretion and, absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) The 12-year sentence imposed by the trial court was well within the applicable statutory limits. (Ill. Rev. Stat. 1989, ch. 5672, par. 1401(a)(2)(B).) The sentencing judge heard the evidence adduced at trial, considered the evidence presented in mitigation and in aggravation, including defendant’s prior convictions. We find no abuse of discretion by the trial court. Consequently, the sentence for this offense will not be vacated or reduced. In accordance with this finding, we order that the mittimus be corrected to reflect the particular statutory subsection under which defendant was sentenced. Ill. Rev. Stat. 1989, ch. 5672, par. 1401(a)(2)(B).

APPEAL FROM THE CONVICTION AND SENTENCE FOR THE OCTOBER 9, 1988, OFFENSE

Defendant was arrested on October 9, 1988, after police officers found cocaine in a brown paper grocery bag which they had seen defendant toss into a yard. Defendant was indicted and subsequently convicted of one count of possession of a controlled substance with intent to deliver. On appeal, defendant contends that the trial court erred in denying his motion to quash his arrest and to suppress the physical evidence against him. Defendant argues that the search of the brown paper bag was conducted in violation of his constitutional rights under the fourth amendment where (1) he had not abandoned the brown paper bag, (2) he did not give the officers permission to search the bag, and (3) the officers did not have probable cause to search the bag.

Defendant called Elizabeth Anderson as a witness at the hearing on his motion to quash arrest and to suppress evidence. Ms. Anderson testified that on the night of his arrest, she and defendant went to a movie and then returned to her apartment at 1519 South Tripp in Chicago, Illinois. At about midnight, Ms. Anderson was on the porch with her mother, Annie Anderson, and with defendant’s sister, Dolores Branch. While the women were talking on the porch, defendant was in the yard on the side of the building near the porch. According to Ms. Anderson, defendant was breaking glass to put into rat holes when the police officers arrested and searched him.

Ms. Anderson testified further that after the police officers searched defendant, they put him in a police car. Thereafter, the officers walked to the back yard and searched several “junk” cars which were parked on the lawn behind the house. According to Ms. Anderson, the officers removed from one of the cars a leather travel bag which contained money. Ms. Anderson stated that defendant had given her the leather bag earlier that evening and asked that she put it under the seat of one of the cars. In accordance with defendant’s request, Ms. Anderson placed the bag under the front seat of one of the cars.

Defendant also called Annie Anderson, whose testimony corroborated that of her daughter, Elizabeth Anderson.

Defendant testified that on the night of his arrest, he was breaking glass in a plastic bag outside his sister’s apartment building at 1519 South Tripp when some police officers pulled up. After the officers asked him to put down the glass and hammer, they searched and handcuffed him and then put him in a police car. Defendant stated further that the officers asked him where his car was located, and he answered that it was parked across the street. The officers then searched his car and found a leather travel bag containing $9,500 in cash. Defendant testified that the officers confiscated the money and then searched the area behind the apartment building. According to defendant, the police officers had a brown paper bag with a bottle in it when they came back to the front of the building. Defendant testified that he had never seen the bag or the bottle before.

The State called Officer Edward J. May, who testified that at about 12:30 a.m. on October 9, 1988, he was on duty with Officer Jack DeDore and Sergeant Thomas Eichler. They were patrolling in an unmarked police car area near 1519 South Tripp. May stated that Sergeant Eichler recognized defendant as he walked through the gate in a gangway between two buildings. Defendant was carrying a brown paper bag in his right hand. May stated that the officers were 15 or 20 feet away from defendant when he emerged from the gangway. Upon making eye contact with the officers, defendant walked through the gate, took two steps, and threw the paper bag onto the sidewalk to his left. The bag landed about four feet away from defendant, and he then turned around and walked back down the gangway.

May testified that he then got out of the car and picked up the brown paper bag. Inside, he found a leather bag which was filled with money. Also inside the brown paper bag were two plastic bags which contained a white powdered substance, a couple of small scales and white papers. May testified that the leather bag contained several thousand dollars and defendant’s identification card issued by the Secretary of State.

Thereafter, the officers arrested defendant, who was kneeling down and breaking glass near the side of the building. May testified that there were no women on the porch when he picked up the brown paper bag, but some women did come out of the building after defendant was arrested. May specifically denied searching defendant’s car or any of the cars in the backyard.

Officer Jack DeDore testified to substantially the same facts as Officer May.

In rebuttal, defendant called his sister, Dolores Harris, also known as Dolores Branch. Ms. Harris testified that defendant was arrested at about 12:30 a.m., while she and two other women watched from the front porch of 1519 South Tripp. Ms. Harris stated that after they arrested defendant, the officers searched some cars which were parked in the backyard. When they returned to the front of the building, the officers had a brown paper bag. Ms. Harris stated that her brother did not have a paper bag in his hand prior to his arrest. She testified further that the officers did not search defendant’s car.

The trial court denied defendant’s motion to quash arrest and to suppress evidence. Thereafter, defendant was tried and convicted of possession of a controlled substance with intent to deliver.

At the sentencing hearing, the prosecutor argued that defendant’s two convictions for Class X felonies mandated consecutive sentences under section 5 — 8—4(h) of the Unified Code of Corrections (Code), which mandates consecutive sentences where a defendant has been convicted of two felony charges, one of which was committed while the accused was on pretrial release for the previous offense. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(h).) The prosecutor also argued that defendant could be sentenced to an enhanced term based upon his two felony convictions during a 10-year period. This argument was predicated upon section 5 — 5—3.2(b)(1) of the Unified Code of Corrections, which permits an extended term where a defendant has been convicted of a felony, after having been previously convicted of the same or greater class felony and where that conviction occurred within 10 years after the previous conviction. Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(l).

The trial judge sentenced defendant to a term of eight years and ordered that this penalty be served consecutive to the 12-year sentence imposed for the first offense which occurred on July 16, 1988.

Defendant initially asserts that the trial court erred in denying his motion to quash arrest and to suppress evidence where the police had not obtained a search warrant and where the State failed to prove that defendant had abandoned the brown paper bag.

Fourth amendment protection against an unreasonable search and seizure does not extend to abandoned property because the possessor’s right of privacy in the property has been terminated. (People v. Hoskins (1984), 101 Ill. 2d 209, 220, 461 N.E.2d 941, cert. denied (1984), 469 U.S. 840, 83 L. Ed. 2d 81, 105 S. Ct. 142.) Abandoned property may, therefore, be searched and seized without a warrant or a showing of probable cause. (Hoskins, 101 Ill. 2d at 220.) Property has been held to be abandoned when dropped to the ground or left behind in a place accessible to the general public. Hoskins, 101 Ill. 2d at 219-20.

In the case at bar, Officer May testified that as he drove by the building at 1519 South Tripp, he observed defendant emerge from the gangway carrying a brown paper bag which he tossed away upon making eye contact with the officers. According to May, defendant walked through the gate in the gangway, took two steps, and threw the paper bag onto the sidewalk to his left. The bag landed about four feet away from defendant, and he then turned around and walked back down the gangway toward the rear of the building. May specifically denied searching defendant’s car or any of the cars in the backyard. The testimony of Officer Jack DeDore corroborated that of Officer May. Although defendant denied ever having seen the brown paper bag or the bottle contained therein, the trial judge was obligated to assess the credibility and weight of the testimony and to resolve any conflicts therein. People v. Clay (1973), 55 Ill. 2d 501, 504, 304 N.E.2d 280.

The testimony of Officers May and DeDore established that when defendant saw the police officers, he deliberately dropped the brown paper bag onto the sidewalk outside of the gate in the gangway and then walked away. By this conduct, defendant demonstrated no possessory interest in the paper bag or its contents. Consequently, defendant’s actions constituted a voluntary relinquishment of the property and any expectation of privacy therein. See People v. Sylvester (1969), 43 Ill. 2d 325, 327-28, 253 N.E.2d 429; Hoskins, 101 Ill. 2d at 220.

On a motion to suppress evidence, the defendant has the burden of proving the search and seizure were unlawful (Ill. Rev. Stat. 1991, ch. 38, par. 114 — 12(b); Hoskins, 101 Ill. 2d at 212), and a trial court’s decision will not be reversed unless it is manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162, 535 N.E.2d 837; Hoskins, 101 Ill. 2d at 212.) We find that the decision of the trial court was supported by credible evidence in the record and was not manifestly erroneous. We hold, therefore, that the trial court properly denied defendant’s motion to quash arrest and to suppress the evidence against him.

Defendant next contends that the trial court erred in ordering that the sentences for his two convictions be served consecutively. As noted above, a motion to reduce a sentence is not required, and the failure to file such a motion will not result in waiver of the issue on appeal. Thomas, 193 Ill. App. 3d at 527.

Section 5 — 8—4(h) provides that “[i]f a person charged with a felony commits a separate felony while on pre-trial release or in pretrial detention in a county jail facility or county detention facility, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.” Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 8—4(h).

At defendant’s sentencing hearing, the prosecutor referred to section 5 — 8—4(h) and stated that the case involved “a situation where the statute mandates a consecutive sentence. The defendant had one case, he posted bond and committed a separate offense, and [the trial judge] found him guilty on both cases.”

On appeal, defendant asserts that “[t]here is a total absence of any evidence in the [rjecord” that he committed the October 9, 1988, offense while on pretrial release for the offense committed on July 16, 1988. We do not agree.

A court of review may consider and rely upon entries in the common law record when examining the propriety of consecutive sentences. (People v. Shelton (1990), 205 Ill. App. 3d 471, 479, 564 N.E.2d 226.) In the case at bar, the common law record reflects that defendant was arrested on July 16, 1988, for possession of a controlled substance. A cash bond was set at $27,000, and on August 9, 1988, a grand jury returned an indictment against defendant charging him with possession of a controlled substance with intent to deliver. Defendant was arraigned on this charge on August 26, 1988. On October 9, 1988, defendant was again arrested for possession of a controlled substance. This arrest arose out of events completely separate and distinct from the events which resulted in the arrest of July 16, 1988. Defendant was convicted of both offenses after separate trials conducted in July 1990. Thus, the record establishes that defendant committed the October 9, 1988, offense while on pretrial release for the offense committed on July 16,1988.

We hold that the instant record provides ample support for the imposition of consecutive sentences, and we find no abuse of discretion by the trial court.

For the foregoing reasons, the sentence imposed for defendant’s conviction under indictment number 88 — CR—12021 is affirmed. The conviction and sentence under indictment number 88 — CR—20607 are affirmed.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE MURRAY

text:
    LUCILLE JACKSON, Plaintiff-Appellant, v. PAUL NAFFAH et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—92—0197
    Opinion filed February 5,1993.

      Mark E Kemper, of Dombrowski & Sorensen, of Chicago, for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Richard L. Murphy, and Susan Condon, of counsel), for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

A medical malpractice action was brought by plaintiff Lucille Jackson (Jackson) against Dr. Paul Naffah (Naffah) and Dr. Salim Saab (Saab). A jury verdict was rendered in favor of defendants, judgment was entered on the verdict and the trial court denied plaintiff’s post-trial motion for a new trial. Jackson now appeals, raising three issues: (1) whether an instruction given to the jury led the jury to believe that it was to disregard all of the testimony presented by plaintiff’s medical expert, (2) whether the trial court erred when it found that the reputation witness plaintiff proffered was not qualified to testify concerning Dr. Saab’s reputation for truth and veracity, and (3) whether the trial court erred by barring plaintiff from attempting to impeach Dr. Saab’s credibility using a specific instance of prior misconduct.

We are first met with a motion to dismiss the appeal or summarily affirm the judgment of the trial court, which was filed by defendants and which this court has agreed to consider with the case. In this motion defendants contend that plaintiff has either failed or refused to provide this court with the entire transcript of the trial proceedings and that the segments of the proceedings which plaintiff has submitted fail to apprise this court of all of the evidence pertinent to the issues on appeal, as required by Supreme Court Rule 323(a). (134 Ill. 2d R. 323(a).) Defendants also complain that plaintiff’s brief is deficient pursuant to Supreme Court Rule 342(a) (134 Ill. 2d R. 342(a)), because it fails to make proper reference to the record, contains no appendix with a table of contents for the record and includes no copy of the order appealed from. For these reasons defendants ask this court to strike plaintiff’s brief and dismiss the appeal or summarily affirm the trial court.

Although we find dismissal of the appeal too harsh a sanction for failure to meet with the requirements of Rule 342(a) (In re Estate of Jacobs (1989), 189 Ill. App. 3d 625, 629, 545 N.E.2d 502), as we will explain below, the lack of a sufficient record causes us to affirm the trial court’s judgment.

Plaintiff does not deny that she has provided this court with a piecemeal record of the proceedings below, presenting only those isolated portions of the transcripts which, in her counsel’s opinion, illustrate the errors she alleges to have occurred. Plaintiff’s response to defendants’ motion is a charge that defendants waived objection to the “abbreviated report of proceeding” by failing to supplement the record with whatever materials or transcripts they deemed necessary. Plaintiff cites no case law for this waiver theory and refers only to Supreme Court Rule 323(a).

Although Rule 323(a) does provide that an appellee “may serve on the appellant a designation of additional portions of the proceedings that the appellee deems necessary for inclusion in the report of the proceedings” (emphasis added) (134 Ill. 2d R. 323(a)), the onus is on the party seeking review to present a sufficient record of the proceeding to show the error of which that party complains. (In re Estate of Jacobs, 189 Ill. App. 3d at 629.) If a complete record is not made available, the reviewing court must presume that the trial court’s judgment conformed to the law and had a sufficient factual basis. Salazar v. Wiley Sanders Trucking Co. (1991), 216 Ill. App. 3d 863, 576 N.E.2d 552.

As appellant’s counsel (in this case Jackson’s counsel) should be aware, trial error does not occur in a vacuum and the ultimate issue a reviewing court must decide is not merely whether error occurred, but whether any error that occurred unfairly prejudiced the appellant’s position, thereby denying appellant a fair trial. To make such a determination it is often necessary for the reviewing court to consider the alleged error in the context of the entire proceeding. This is the reason that an appellant generally presents a complete transcript of the proceedings below. By supplying the reviewing court with a full report of the trial proceedings, the court will be able to fairly review the matters presented for its consideration.

There is one exception to this rule. The absence of a complete record will not bar appellate review when the issues raised on appeal are solely issues of law. (Leary v. Eng (1991), 214 Ill. App. 3d 279, 573 N.E.2d 352.) This exception does not apply in the case currently before this court. The issues raised by Jackson in this appeal are not solely issues of law. At the very least, plaintiff’s issues, which deal with instruction of the jury and admission of evidence, are combined questions of law and fact. Such issues require a complete transcript of the proceedings so that this court may determine whether the trial court abused the broad discretion it has when deciding these matters. Consequently, we find that the record supplied to this court is inadequate to support plaintiff’s claims of error. For this reason we must grant defendants’ motion to summarily affirm the trial court’s judgment.

The first issue raised by plaintiff concerns an instruction given to the jury which informed the jury that it should disregard two of the opinions expressed by plaintiff’s expert, Dr. Silverman, and that those two opinions were “no longer part of the case.” We note that plaintiff does not find fault with the trial court’s ruling that these two opinions deviated from Dr. Silverman’s deposition testimony and, therefore, should have been removed from the case pursuant to Supreme Court Rule 220. Rather, plaintiff complains that the trial court’s acceptance of defendants’ proffered instruction on this matter over plaintiff’s proffered instruction was error and that the instruction, as given, misled the jury and caused it to assume that all of Dr. Silverman’s testimony was to be disregarded.

First of all, there is no way for this court to determine whether the language in the instruction proffered by plaintiff would have been superior to the language utilized in defendants’ instruction since plaintiff’s instruction is not contained within the excerpt of the transcript of the proceedings on this issue. We do know that defendants’ counsel objected to the plaintiff’s instruction, arguing that it implied that the opinions were sound but merely being struck for some technical reason.

The record also reveals that, as discussion of the matter continued, plaintiff’s counsel suggested that the court should indicate to the jury that the jury was “not to disregard the rest of Dr. Silverman’s opinions” or that “only the following two opinions” were to be disregarded. Along those same lines, Jackson claims on appeal that the instruction “could easily have been made clearer by adding a sentence that the other opinions expressed by Dr. Silverman were still a part of the case.” We disagree.

When a case is being tried before a jury, the trial court has a duty to maintain an appearance of complete neutrality, taking care not to suggest favor or disfavor toward any party or indicate an opinion on the evidence by his conduct or remarks. (Pavilon v. Kaferly (1990), 204 Ill. App. 3d 235, 561 N.E.2d 1245.) In this case the jury had already heard evidence that should not have been presented and that was prejudicial to the defendants. The trial court had a duty to remove the improper evidence from the jury’s consideration. For this reason we believe that the trial court correctly rejected the instructions proposed by plaintiff. The jury, as finder of fact, is free to accept or reject any evidence presented to it. Any instruction to the jury that would imply or infer that it was not to disregard certain evidence would be tantamount to the court giving special weight to that evidence.

Furthermore, Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 549 N.E.2d 1295, the only case cited to by Jackson, undercuts plaintiff’s position. Thompson states that jury instructions must be impartial and refrain from overemphasizing any particular matter. But more importantly, Thompson stands for the proposition that the standard for reviewing the trial court’s exercise of discretion on a particular instruction is whether the jury instructions, taken as a whole and in series, fairly apprise the jury of the applicable legal principles. (193 Ill. App. 3d at 200.) This is a determination that this court cannot make because, as noted above, we do not have a complete record before us. Without the entire record we are unable to determine whether plaintiff was denied a fair trial because of this single instruction or whether the jury was fairly apprised of the legal principles presented for its consideration.

As an aside we note, however, that the instruction complained of by plaintiff was given shortly after Dr. Silverman’s testimony. The trial continued after that and it would seem that plaintiff’s counsel would have been free to clarify for the jury what opinions of Dr. Silverman were still a part of the case. Whether plaintiff availed herself of this opportunity is not apparent from the record we have before us.

Plaintiff’s next two issues on appeal concern the trial court’s rulings on motions in limine which prevented plaintiff from introducing certain reputation and impeachment evidence which plaintiff sought to present against Dr. Saab at trial. We wish to emphasize here that the trial court did not bar plaintiff from presenting reputation or impeachment evidence but only barred the particular reputation witness tendered by plaintiff and the method by which plaintiff sought to impeach Dr. Saab, i.e., by introducing a prior instance when Dr. Saab was alleged to have been untruthful.

In this case the record contains an excerpt of the trial wherein plaintiff made an offer of proof, producing the witness she hoped to introduce concerning Dr. Saab’s reputation for truth and veracity. This witness, Mr. Albert Friedman, was an attorney who had unsuccessfully represented another plaintiff in a different lawsuit against Dr. Saab. Mr. Friedman testified that his knowledge of Dr. Saab’s reputation was gleaned from conversations he heard and participated in during a Christmas party in 1989, nearly two years prior to the trial in this case.

Although a witness may be impeached by showing his general reputation for truth and veracity in the community in which he lives, a proper foundation for the reputation testimony must be made by showing that the reputation witness has adequate knowledge of the person sought to be impeached and that the reputation evidence is not merely the personal opinion of the witness. (In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872.) Friedman’s testimony during the offer of proof indicated that he had minimal knowledge of Saab’s reputation and, more than likely, the opinion he expressed was his own.

Furthermore, as stated in Congregation of the Passion, Holy Cross Province v. Touche Ross & Co. (1991), 224 Ill. App. 3d 559, 578, 586 N.E.2d 600, the test of an in limine ruling is whether the circuit court abused its discretion by excluding or allowing the evidence and, if so, whether the party suffered unfair prejudice or the exclusion or admission of the evidence materially affected the outcome of the case. As a general rule the trial court has wide latitude when deciding what evidence may be admitted at trial and must balance the prejudice that might be avoided if it grants the motion against the complication or inconvenience that would result if the motion is denied. (Congregation of Passion, 224 Ill. App. 3d at 578.) A circuit court’s decision will not be reversed absent an abuse of discretion. Behrstock v. Ace Hose & Rubber Co. (1986), 147 Ill. App. 3d 76, 496 N.E.2d 1024.

Based upon the above-stated standards, we must affirm the trial court’s decision to exclude the reputation and impeachment evidence plaintiff proffered. Even if it were to appear to this court from the record available that the reputation evidence and impeachment evidence was improperly excluded (an opinion this court does not mean to infer or imply), we would be unable to determine whether the exclusion of the evidence unfairly prejudiced plaintiff, materially affected the outcome of the case, or was harmless since plaintiff has not submitted the entire transcript of the trial proceedings. Consequently, we are unable to review plaintiff’s claim of error.

Accordingly, we affirm the verdict and judgment in this case.

Affirmed.

GORDON, P.J., and COUSINS, J., concur.