text:
    CECIL R. TURNER, Guardian of the Person and Estate of Peggy Jo Turner, a Disabled Person, Plaintiff-Appellant, v. RUSSELL H. ROESNER, Defendant-Appellee (Kenneth E. Jeralds et al., Defendants).
    Second District
    No. 2—89—0100
    Opinion filed January 16,1990.
    Rehearing denied February 21, 1990.

      DUNN, J., dissenting.
    John M. Simko, of Boback, Bianchi & Simko, Ltd., of Crystal Lake, for appellant.
    Querrey, Harrow & Callahan, P.C., of Geneva, and Thomas P. Scherschel, Victor J. Piekarski, and Michael Resis, all of Querrey & Harrow, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Cecil R. Turner, guardian of the person and of the estate of Peggy Jo Turner, brought suit in the circuit court of Kane County against the defendant, Russell H. Roesner, alleging that the defendant’s negligence caused an automobile accident resulting in serious injury to Ms. Turner. The plaintiff alleged that the defendant, whose truck collided with the car in which Ms. Turner was riding, was driving too fast for conditions and failed to take evasive action to avoid the accident. The trial court granted the defendant’s motion for summary judgment, and the plaintiff now appeals. Because we believe that the jury should have been allowed to determine whether the defendant’s conduct was negligent and whether it proximately caused the injuries complained of, we reverse the trial court’s order granting summary judgment in favor of the defendant, and we remand the cause for further proceedings.

This suit arises out of an automobile accident which took place on December 15, 1986, at approximately 6:30 a.m. Ms. Turner was riding in a Ford Mustang driven by Richard J. Eisele, which was northbound on Randall Road, and the defendant was driving his Toyota pickup truck southbound on Randall Road. Visibility was poor due to darkness and fog. At some point, the Mustang driven by Eisele crossed the center line of Randall Road and entered into the southbound lane. The defendant’s southbound truck then struck the Mustang on its driver’s side. A minor second collision occurred when the end of the Mustang was struck by another car which had been following it in the northbound lane. Eisele was killed in the accident, and Ms. Turner suffered permanent disabling injuries.

After he was appointed guardian of Ms. Turner’s person and estate, the plaintiff filed a three-count complaint in the circuit court of Kane County seeking to recover for the injuries Ms. Turner suffered in the accident. Count I sought recovery against the estate of Bisele based on his allegedly negligent driving of the car in which Ms. Turner was a passenger. Count II alleged that defendant Roesner’s negligence in operating his vehicle was also a proximate cause of Ms. Turner’s injuries. In relevant part, count II specifically alleged that defendant Roesner was negligent in that he failed to: (a) reduce the speed of his vehicle as appropriate under the existing traffic and weather conditions; (b) apply his brakes or take other evasive action to avoid the collision; and (c) keep a proper lookout. Count III sought to recover damages from Kenneth E. Jeralds, the driver of the car involved in the second collision with the Mustang.

Count III was disposed of when the plaintiff succeeded in obtaining a default judgment against Jeralds, and count I was dismissed after a settlement was reached between the plaintiff and the estate of Bisele. Defendant Roesner moved for summary judgment with regard to count II, and, in support of his motion, the defendant submitted transcripts from depositions taken of him and of an independent witness, Kathleen Marie Koch. In his deposition, the defendant stated that he was traveling southbound on Randall Road at about 40 to 45 miles per hour in a 55-mile-per-hour zone. It was dark, and there was a heavy fog in the area. The defendant said that he could see only as far as his headlights could illuminate, a distance he estimated at 150 to 200 feet. He stated that when the Mustang first came into the range illuminated by his headlights it was completely in his lane and perpendicular to him. He was not sure if it was stopped or if it might have been sliding sideways toward him. He stated that he had only about 2 seconds and 120 feet to react and that in such a short time he could not avoid the collision. He was sure he removed his foot from the accelerator, but he did not remember applying the brakes.

In her deposition, Koch stated that, on the morning of the accident, she was driving northbound somewhere behind the Mustang. The group of northbound cars in which she traveled, which included the Mustang, was moving at about 45 miles per hour. The speed limit on that stretch of Randall Road, she said, is 55 miles per hour. According to Koch, there was a light fog that morning and the pavement was slick, and she indicated that there was ice on the road. Koch stated that she saw the Mustang turn off into the other lane of traffic until it was completely in the southbound lane. She never saw the defendant’s truck prior to the impact with the Mustang. Koch said that, after it was hit by the truck, the Mustang came to a stop and was hit a second time by another northbound vehicle.

The plaintiff’s response to the defendant’s motion for summary judgment admitted that the collision between the Mustang and the defendant’s truck took place when the Mustang was completely in the southbound lane. The plaintiff also included a copy of Koch’s deposition transcript with his response. Koch’s statement, the plaintiff claimed, showed that the weather on the morning in question was foggy and wet and the roadway was icy and slippery. The plaintiff admitted that no known witness could contradict the defendant’s statements that he was driving 40 to 45 miles per hour within his lane and that he had only 2 seconds and 120 feet to react. It was the plaintiff’s contention, however, that the defendant was still under a duty to exercise reasonable care to avoid colliding with the Mustang and to reduce his speed as the weather conditions required. The trial court, finding no material fact at issue, granted the defendant’s motion for summary judgment. The plaintiff now appeals from the trial court’s order granting summary judgment.

A motion for summary judgment should be granted if the pleadings, depositions, admissions and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) Summary judgment is a drastic means of disposing of litigation and should be granted only if the right of the movant is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Evidence is to be viewed in the light most favorable to the nonmovant in determining whether a genuine issue of material fact exists; if there are no such facts in dispute, inferences may be drawn from undisputed facts to determine if the movant is entitled to judgment as a matter of law. Estate of Dompke v. Dompke (1989), 186 Ill. App. 3d 930, 933.

Here, the facts are not in dispute. The parties agree that the defendant was driving completely within his own lane at 45 miles per hour, a speed less than the posted limit of 55 miles per hour. The defendant had about 2 seconds and 120 feet to react. He took his foot off the accelerator but does not remember braking. He did not attempt to drive into the other lane or onto the shoulder of the road. While the parties agree as to these underlying facts, the plaintiff maintains that the central question remaining is whether the defendant breached his duty of exercising ordinary care under these circumstances by: (a) driving too fast under the weather and traffic conditions present on the morning of the accident; (b) failing to apply his brakes; and (c) failing to take evasive actions to avoid the collision. The defendant, on the other hand, contends that the trial court correctly determined, as a matter of law, that the defendant’s conduct was not negligent.

In a negligence action, the plaintiff must show the existence of a duty owed by the defendant, breach of that duty, and injury proximately caused by the breach. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85.) While the trial court must determine whether a duty exists, the question of whether the defendant breached a duty is normally a question of fact for the jury to decide. (Horak v. Biris (1985), 130 Ill. App. 3d 140, 144.) Whether a defendant’s conduct proximately caused a plaintiff’s injury is also a question for the trier of fact to resolve. (Roeseke v. Pryor (1987), 152 Ill. App. 3d 771, 779.) The trial court may make these factual determinations on a motion for summary judgment when, as a matter of law, the evidence so clearly favors the party seeking summary judgment that no fair-minded person could dispute his right to a favorable judgment. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

Here, even though he was within his own lane and driving at less than the posted speed limit, the defendant was under a duty to exercise due care under the circumstances to avoid a collision with a driver proceeding on the wrong side of the road. (Rutter v. Gemmer (1987), 153 Ill. App. 3d 586, 594; Balfour v. Citgo Petroleum Corp. (1983), 116 Ill. App. 3d 140, 144-45.) Thus, summary judgment in the defendant’s favor was proper only if no fair-minded person could find, on the evidence contained in the pleadings and depositions, that the defendant breached this duty or that his conduct was the proximate cause of the accident.

With this analytical framework in mind, we first consider the plaintiff’s contention that the defendant breached his duty of care under the circumstances because he failed to brake or take evasive action to avoid the collision with the Mustang. Illinois courts have long held that a sudden swerve into a defendant’s right of way by an approaching vehicle does not give rise to negligence by the defendant. Courts will not view a party’s acts with the clarity of hindsight, but by a standard of what a prudent person would have done under the same circumstances. (Wilmere v. Stibolt (1987), 152 Ill. App. 3d 642, 647.) The driver of a vehicle who is faced in a sudden emergency with imminent peril is not required to possess the same coolness and judgment as when there is no imminent peril. (McCullough v. McTavish (1978), 62 Ill. App. 3d 1041, 1047.) Here, we believe the trial court was correct insofar as it determined, as a matter of law, that the defendant’s response to the sudden emergency confronting him was reasonable under the circumstances.

Were this the only issue before us, i.e., whether the defendant’s response was reasonable given the short time in which he could have reacted, we would have no difficulty upholding the trial court’s decision to grant summary judgment in favor of the defendant. But the issue here is not merely what response would have been reasonable with only two seconds to react; the issue is also whether and to what extent the defendant’s conduct contributed to the very short time in which he could have responded to the emergency which confronted him. The plaintiff specifically alleged in his complaint that the defendant was driving too fast under the conditions present on the day of the accident. We believe that the defendant’s own deposition presents a sufficient basis for fair-minded people to differ as to whether the defendant was driving too fast on the dark and foggy morning in question.

The plaintiff concedes that the defendant was driving 10 to 15 miles per hour less than the posted speed limit. Even this speed would be unreasonable, however, if the weather conditions and visibility did not allow it. (McCullough v. McTavish (1978), 62 Ill. App. 3d 1041, 1045.) The witness to the accident, Kathleen Koch, stated in her deposition that the road was icy and slippery. The defendant’s deposition reveals that, because of fog and darkness on the morning in question, his visibility was limited to only that distance which was illuminated by his headlights. Furthermore, the defendant stated that the Mustang may have been fully stopped when he first saw it. The defendant stated that when he saw the Mustang he could not stop his truck in time to avoid colliding with it; in other words, as soon as the stationary Mustang came into view, it was already too late. Based on these uncontroverted facts, reasonable jurors could infer that the defendant breached his duty of care by driving his truck at such a speed that he could not stop his vehicle within the distance illuminated by his headlights. Because the uncontroverted facts are capable of supporting more than one conclusion, we believe that the trial court could not have properly granted summary judgment on the question of whether the defendant’s conduct was negligent. See Santschi v. Gorter (1978), 63 Ill. App. 3d 394, 395.

Thus, the question of whether the defendant breached his duty of care is one that should have been reserved for the trier of fact. Summary judgment would still have been proper, however, if the trial court could have determined, as a matter of law, that the defendant’s conduct was not the proximate cause of Ms. Turner’s injuries. The trial court may make such a determination “where it is apparent from the undisputed facts that only one conclusion can be drawn.” (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 90.) It is important to note that there can be more than one proximate cause of a plaintiff’s injuries. (Countryman v. County of Winnebago (1985), 135 Ill. App. 3d 384, 392.) When there is more than one proximate cause of an injury, one guilty of negligence cannot avoid responsibility merely because another person is also guilty of negligence contributing to the same injury, even, though the injury would not have occurred but for the negligence of the other person. Sears v. Kois Brothers Equipment, Inc. (1982), 110 Ill. App. 3d 884, 889.

Proximate cause consists of two distinct elements: actual cause and legal cause. Actual cause, or cause in fact, is determined by simply analyzing the facts. A defendant’s conduct may be deemed the actual cause of a plaintiff’s injury if, “but for” the defendant’s conduct, the injury would not have occurred. Actual cause can also be established where the defendant’s conduct is a material element and substantial factor in bringing about the plaintiff’s injuries. (See Kerns v. Engelke (1977), 54 Ill. App. 3d 323, 333, aff’d in part & rev’d in part on other grounds (1979), 76 Ill. 2d 154.) Once it is established that the defendant’s conduct was an actual cause of the plaintiff’s injury, the next question is whether the defendant should be held legally responsible for it; in other words, the question is whether the defendant’s conduct was the legal cause of the plaintiff’s injury. Scott & Fetzer Co. v. Montgomery Ward & Co. (1984), 129 Ill. App. 3d 1011, 1020, aff’d (1986), 112 Ill. 2d 378.

Here, a reasonable jury could find that, but for the defendant’s failure to drive at a speed which would have allowed him to stop in time, the collision would not have occurred; in other words the “but for” test of actual causation could be satisfied. Though such conduct would certainly not be the sole cause of the collision, reasonable jurors could find that the speed of the defendant’s truck constituted a “substantial factor” in causing the accident, thus meeting the second test for actual cause. Therefore, it appears from the pleadings and depositions that reasonable minds might differ as to whether the defendant’s conduct was an actual cause of the collision.

There remains then, the question of whether the defendant’s conduct, even if it might have been an actual cause of the collision, is also its legal cause. Legal cause, as we have noted, is a more narrow concept requiring the jury to determine whether a defendant will be held legally responsible for the actual consequences of his conduct. The foreseeability of the plaintiff’s injuries is a factor in determining proximate cause. (Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 907.) Another party’s acts do not break the causal connection between a defendant’s negligence and the plaintiff’s injuries if the third party’s act was probable and foreseeable. In order to escape liability, the defendant must demonstrate that the other party’s act was unforeseeable as a matter of law. See Romano v. Bittner (1987), 157 Ill. App. 3d 15, 28-29.

The defendant argues that several Illinois cases require us, as a matter of law, to uphold the trial court’s determination that the defendant’s conduct was not the proximate cause of the plaintiff’s injury. We do not agree that the cases cited by the defendant compel such a result. The defendants in Walling v. Lingelbach (1976), 65 Ill. 2d 244, Young v. Texas Eastern Transmission Corp. (1985), 137 Ill. App. 3d 35, and Rutter v. Gemmer (1987), 153 Ill. App. 3d 586, were all involved in automobile accidents in which another vehicle crossed into their lane of traffic. In Walling, the supreme court held that the facts presented did not sufficiently present a question for the jury. (Walling, 65 Ill. 2d at 248.) In Young and Rutter, the appellate court upheld the trial court’s granting of summary judgment in favor of the defendant in each case. (Young, 137 Ill. App. 3d at 39; Rutter, 153 Ill. App. 3d at 594.) In all three cases, the defendant’s conduct was clearly not the sole cause of the accident, and each reviewing court stated that the defendant’s alleged negligence was not the proximate cause of the plaintiff’s injuries. (Walling, 65 Ill. 2d at 248; Young, 137 Ill. App. 3d at 40; Rutter, 153 Ill. App. 3d at 593.) We do not believe, however, that these cases can be read to imply that, as a matter of law, the driver of a vehicle which collides with an oncoming vehicle proceeding in the wrong lane of traffic cannot be held to have proximately caused the collision even where he is driving too fast for conditions. Instead, we believe the holdings in these three cases resulted from the plaintiffs’ failure to present sufficient evidence from which it could be inferred that the defendant’s conduct was a proximate cause of the accident.

In Walling, for example, the defendant was driving in fog but was still able to react to the presence of an oncoming automobile in her lane. The defendant veered onto the shoulder on her side of the road but could not avoid colliding with the oncoming vehicle. (Walling, 65 Ill. 2d at 248.) The supreme court held in that case that “the evidence was insufficient to present a jury question” as to whether the defendant’s alleged speeding could have proximately caused the accident. (Walling, 65 Ill. 2d at 248.) Here, on the other hand, the defendant’s own deposition could support an inference that he was driving at such a speed that he could not even attempt to avoid a collision with a car stopped in his lane once it came into view. Unlike in Walling, the evidence of this defendant’s actions undertaken before the other car entered his lane (i.e., driving too fast for conditions) could support an inference that his negligence was a proximate cause of the accident. Even if Eisele’s Mustang crossed completely into the defendant’s lane of traffic, “the jury could also have found one or both of the parties negligent in driving too fast for the conditions of the road.” (Balfour v. Citgo Petroleum Corp. (1983), 116 Ill. App. 3d 140, 145.) The jury here should have been allowed to make this determination.

Similarly, both Young and Rutter were resolved based upon the plaintiff’s failure to present sufficient evidence to show how the defendant’s alleged negligence proximately caused the collision. (Young, 137 Ill. App. 3d at 39; Rutter, 153 Ill. App. 3d at 594.) Here, as we have said, the defendant’s own deposition provides ample ground to support such an inference, and so the jury should have been allowed to decide the issue. (See Santschi v. Gorter (1978), 63 Ill. App. 3d 394, 396-97.) Moreover, the evidence presented does not show, as a matter of law, that the defendant could not foresee that an oncoming car might errantly enter his lane of traffic. This is true even if the negligence of a third party, Eisele, caused the entry of the car into the defendant’s lane. See Romano v. Bittner (1987), 157 Ill. App. 3d 15, 28-29.

Finally, we wish to dispel any misinterpretation of our decision in Rutter regarding the correct application of the “but for” test in instances where there could be more than one proximate cause of a plaintiff’s injury. Here, for example, a jury might conclude that, but for the defendant’s excessive speed, he would have been able to stop before colliding with the Mustang stopped in his lane; it might also conclude that, but for Eisele’s negligence in failing to control the Mustang, the accident would never have occurred. While both inferences are supportable, they merely show that more than one proximate cause can exist. Even if the defendant would not have collided with the Mustang “but for” the fact that it improperly entered his lane of traffic, application of the “but for” test cannot relieve the defendant of the consequences of his own conduct if it also was a proximate cause of the collision. See Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 393-94.

In conclusion, we believe that the trial court erred by granting the defendant’s motion for summary judgment. The pleadings and depositions presented facts upon which reasonable minds could differ regarding: (a) whether the defendant breached his duty of care to avoid a collision with a driver proceeding on the wrong side of the road by driving too fast for conditions; and (b) if such a breach occurred, whether it proximately caused the plaintiff’s injuries. We therefore reverse the trial court’s order granting the defendant’s motion for summary judgment and remand the cause for further proceedings.

Reversed and remanded.

INGLIS, J., concurs.

JUSTICE DUNN

dissenting:

I respectfully dissent. A good legal analysis is presented by the majority, but they reach the wrong conclusion. Although proximate cause is ordinarily a factual determination for the jury, where it is apparent from the undisputed facts that only one conclusion can be drawn, the question then becomes one for the court to resolve as a matter of law. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 90.) Only one conclusion can be legitimately reached here. The trial court in my judgment correctly concluded from the undisputed facts that the conduct of the defendant was, as a matter of law, not the proximate cause of the injuries to the plaintiff. I would affirm.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHIL MARSHALL, Defendant-Appellant.
    Second District
    No. 2—87—1076
    Opinion filed January 18,1990.
    Rehearing denied February 21,1990.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Phil Marshall, was found guilty of five counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12— 14(b)(1)) and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(d)) following a bench trial in the circuit court of Du Page County. He was sentenced to five 15-year terms of imprisonment for the aggravated criminal sexual assaults and a five-year term of imprisonment for the aggravated criminal sexual abuse, all of which were ordered to be served concurrently. Defendant appeals from these convictions.

Defendant raises one issue, contending that “where the defendant was arrested in a hotel room in front of two operational video cameras, the decision of the police to stop the recording at the commencement of the arrest, together with the prosecutor’s failure to offer testimony from all of the police officers present inside the room at the arrest and the defendant’s later assertions of physical and mental abuse, rendered the lower court’s finding of compliance with the ‘material witness’ rule against the manifest weight of the evidence.” We find insufficient merit in his argument to warrant reversal and a remand.

It is unnecessary, in view of the issue raised, to discuss at length the evidence adduced at trial. The offenses of which defendant was convicted involved a 12-year-old male complainant. Two of the offenses, on October 8 and 29, 1986, were acts of fellatio involving defendant and the complainant during which defendant threatened the complainant with a gun. The remaining four offenses, on October 11, 17, 21, and 23, 1986, were acts of fellatio involving defendant and the complainant during which no weapon was used. The evidence of these offenses came primarily from the testimony of the complainant and statements made by defendant to police officers, with some supplementation by corroborative testimony from other witnesses.

The evidence surrounding defendant’s arrest and interrogation, which was adduced at a pretrial suppression hearing, is of more importance with respect to the issue raised. There is little dispute regarding the events preceding defendant’s arrest, which the police videotaped.

Defendant was directed to a room, which was part of a suite, in the Oak Brook Marriott Hotel the evening of November 19, 1986, on the pretense that he and the complainant, who accompanied him, were to make a pornographic film. Undercover officer James Turner introduced defendant to Officer Robert Thomas, who played the part of the producer of the film. Special agent Arthur Sebek acted as the cameraman for the film. To make their story more believable, the police had set up a video camera and a video recorder loaded with tape, which were ready to record but were never turned on. Unknown to defendant, in an adjoining room of the suite, there was another loaded video recorder and a video camera trained on defendant and

Thomas through a one-way mirror.

After defendant and the complainant arrived, Thomas spoke to defendant, and the hidden camera recorded the conversation. Defendant described sexual acts he and the complainant had performed and the sexual acts they planned to perform for the film. Turner took the complainant into the hallway. Defendant stripped to his underpants and lay facedown on a bed out of range of the hidden camera preparatory to the start of filming. After defendant was so positioned, at least six officers including at least one with a drawn gun rushed him and placed defendant under arrest. Right after the police rushed defendant, the hidden camera was turned off, and with respect to what occurred after the camera was turned off, the testimony of the witnesses was divergent.

At the suppression hearing, defendant testified in his own behalf; and in addition to Thomas, Turner and Sebek, Lieutenant Daniel Mc-Devitt, Supervisor John Meduga, Officer Ralph Billingslea, and acting Elmhurst police chief John Milner testified for the State. Defendant testified that, when he was lying facedown on the bed dressed only in his undershorts, someone suddenly put hands on his shoulder, pulled him over, and stuck a gun in his face. McDevitt then came over and stuck a gun in defendant’s face and said, “If you move, [obscenity], I’ll blow your head off.” None of the State’s witnesses recalled any officer making this statement, although they did testify that defendant was told not to move and that McDevitt told defendant to put his “[obscenity] hands” on his head.

Defendant testified that there were several police officers pointing guns at him when he was turned over. The State’s witnesses testified only to McDevitt’s gun being drawn, and that gun was reholstered after defendant was handcuffed. Moreover, according to the State’s witnesses, McDevitt had announced his office before turning defendant over, while defendant did not recall hearing anyone identify them as police.

Defendant testified he was handcuffed in the back so tightly he had scars that took six months to heal and he was so frightened that he did not complain at the time, but he later received some ointment for them from a nurse at the jail. The State’s witnesses denied that defendant was handcuffed any more tightly than usual.

According to defendant, he was pulled up to a standing position by his arms, which were handcuffed behind him. The police took pictures of him, laughed at him, and made insulting statements, calling him a “geek,” “faggot,” and “eutie pie.” Someone said to shoot him if he moved. There were 15 to 20 people in the room, including a woman defendant recognized as a Bensenville police officer. The State’s witnesses denied the police taking pictures of defendant, or verbally abusing him. They also testified that many fewer people, around six, were in the room, and none recalled a woman police officer being present.

Defendant testified that the police eventually uncuffed him and allowed him to dress, after which he was recuffed in front and seated at a table. Thomas pulled out a form (which was a waiver of Miranda rights form) and told defendant they wanted him to sign it. Defendant refused. Thomas gave defendant a pen, pressed his finger into defendant’s collar bone, and told defendant they wanted him to sign the form. Defendant complied without reading it. Turner’s and Bellingslea’s signatures as witnesses were already on the form when defendant signed. According to the State’s witnesses, Miranda warnings were properly given, the police did not in way any compel defendant to sign the waiver, and Turner’s and Bellingslea’s signatures as witnesses were not placed on the form until after defendant signed it.

Defendant testified that Thomas asked him about dealers and manufacturers of pornography. Defendant denied involvement in pornography, and Thomas called him a liar and offered to “cut a deal.” According to the State’s witnesses, the police only asked defendant for personal background information at the hotel and did not substantively question him until later at the police station.

According to defendant, a black man found a wallet in defendant’s gym bag, saw a photograph of defendant’s son, and accused defendant of playing with little boys. They found defendant’s keys, had defendant select the one for his car, and the man ran out the door with the keys. Billingslea, testifying for the State, denied going through defendant’s wallet, taking defendant’s keys, or seeing anyone else do so.

Defendant testified that the police took about 10 Polaroid photographs of defendant against a wall in the hotel room. At one point, a man in a white shirt came up to him, struck him in the chest, and said, “If you’d have done this to my kid, I’d have killed you.” Defendant later learned his rib was injured. The State’s witnesses denied seeing any of the police take any Polaroid photographs of defendant in the hotel room. Thomas specifically testified that he was with defendant for the entire period in the hotel room after his arrest and never heard any officer tell defendant, “If you would have done this to my son, I’d have killed you.”

Defendant and the State’s witnesses also disagreed with respect to occurrences while defendant was being transported to the police station and during his interrogation at the police station.

At the station, after he was further questioned, defendant made the statements he later challenged as involuntary. Also, defendant testified, without contradiction, that he told a nurse at Du Page County jail that his wrists and chest hurt when he arrived at the jail at 1:22 a.m. A doctor at the jail examined his rib. He was later taken to Central Du Page Hospital, where his chest was examined. No X rays were taken, and the medical records from the jail which were admitted at the hearing did not mention any trauma to the ribs but did note a heart condition called mitral stenosis.

The basic thrust of defendant’s argument is that the trial court erred in denying his motion to suppress because the State failed to produce, or explain the absence of, all material witnesses to defendant’s confession. We disagree.

The law governing the burden of proof at a motion to suppress a confession on the ground that it was involuntary is well settled.

“In determining whether a statement is involuntary, it must be ascertained whether the defendant’s will was overcome at the time he confessed or whether the admission was made freely, without compulsion of any sort. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) The State has the burden of showing that a statement was made without compulsion of any sort. This does not mean that only statements induced by physical coercion or promises of leniency or immunity are involuntary. Consideration is to be given to the details of the interrogation and the characteristics of the accused.” (People v. Siekley (1983), 114 Ill. App. 3d 167, 171-72.)

Only by producing all material witnesses to a confession, or satisfactorily explaining their absence, can the State discharge its burden of proving the confession voluntary. (E.g., People v. Armstrong (1972), 51 Ill. 2d 471, 475-76; People v. Wright (1962), 24 Ill. 2d 88, 92-93.) If the State fails to produce all of the available material witnesses, the trial court must exclude the confession. People v. Sammons (1959), 17 Ill. 2d 316, 319.

As our supreme court stated in People v. Sims:

“[T]he persons who must be called as witnesses or whose absence must be explained are those persons whose testimony would be material on the issue of the voluntary nature of the confession.” People v. Sims (1961), 21 Ill. 2d 425, 432.

Defendant contends:

“[A] number of police witnesses were not called by the prosecution: two of the audio-video technicians, including the supervisor, as well as the other officers depicted on the videotape itself.”

The State does not dispute their absence or claim that their absence was adequately explained; rather, the State contends that these persons were not material witnesses.

Defendant claimed that, beginning immediately after his arrest, several guns were pointed at him; he was threatened with death on multiple occasions, including once at gunpoint at the time he was arrested; he was verbally and physically abused; and he was photographed on several occasions, all while in the hotel room. Anybody who witnessed any of these occurrences, or was in a position to witness them if they in fact occurred, is a material witness with respect to the voluntariness of the later confession.

With regard to the video technicians., the State argues:

“The video technicians were in a hotel room adjoining that in which the defendant was arrested. *** As stated in defendant’s brief, the video equipment was turned off at the moment of arrest. Since the video equipment was turned off when the alleged violations of defendant’s rights occurred, there is nothing to indicate that these video technicians were witnesses to anything. The fact that the video technicians may have been in and out of the room when removing the video equipment does not make them material witnesses. *** The video technicians in this case had no occasion to witness anything which might have been material on the voluntary nature of the defendant’s confession.”

The State also argues that these police officers were not material witnesses because “there is absolutely no indication that any statements were made in the presence of these officers.”

The State argues:

“As far as defendant’s contentions that guns were thrust in his face, that death threats were made, and that his handcuffs were tight, there is nothing to indicate that the officers allegedly present during this time would have testified differently from officer McDermitt [sic], who was present during these alleged occurrences. Both Officer McDermitt [sic] and the defendant presented evidence as to what occurred at the time of defendant’s arrest. Thus, the absence of these other officers’ testimony did not impede the trial court’s determination of voluntariness.”

We reject the defendant’s contentions since all of the material witnesses on the issue of whether the statements made to the police after his arrest were the result of physical and mental intimidation were present and testified on the motion to suppress these statements. In the case at hand, the State did produce all of those police officers who were present during the alleged misconduct related to the voluntariness of the statement he signed. The only witnesses the State must call are those whose testimony would be material on the issue of the voluntary nature of the confession. People v. Armstrong (1972), 51 Ill. 2d 471, 475.

The recent case of People v. Gaytan (1989), 186 Ill. App. 3d 919, 928, provides that, where a defendant fails to claim that his confession was the product of coercion or was involuntary, it is unnecessary for the State to produce all of the witnesses to the confession. This court in Gaytan points out that, where the defendant claims that the police used excessive force in arresting him but failed to establish, either in his motion to suppress or in his testimony at the suppression hearing, any relationship between the alleged use of force and his subsequent confession such that the use of force resulted in a coerced or involuntary confession, the State need not produce all the witnesses present during the alleged misconduct.

In his motion to suppress, the defendant alleged he was arrested at gunpoint; two policemen pointed guns at his face and a third uttered an obscenity at him. He was pulled out of bed and handcuffed in such a manner that it cut off circulation to his hands. He was ordered to stand, was photographed in his underwear and told that if he moved, he would be shot. He was allowed to dress, after which, he alleges, an officer said to him, “If you’d have done this to my son, I’d have killed you.” He alleges the officer struck him in the chest area.

Thereafter, his motion indicates, he was transported to the police station. On the way there, he alleges, the police parked by the side of the road, causing a 10-minute delay which put him in fear for his safety.

When at the police station, he alleges he was not allowed to see an attorney, the officers insisted he give a statement, and they ridiculed and directed vulgar epithets at him.

In reviewing the defendant’s testimony at the motion to suppress, we are unable to discern any testimony by him which would show that the alleged use of force resulted in his being coerced into an involuntary confession. We note the defendant’s brief does not direct our attention to any record reference in this regard.

Therefore, it was not error for the State to have failed to present the testimony of the other officers present at the Marriott Hotel at the time of the defendant’s arrest.

For these reasons, the judgment and sentence of the circuit court of Du Page County are affirmed.

Affirmed.

INGLIS and REINHARD, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FERMIN FLORES, Defendant-Appellant.
    Second District
    No. 2—88—0156
    Opinion filed January 22, 1990.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Fermín Flores, was indicted for murder and was convicted by a jury in the circuit court of Boone County of involuntary manslaughter in connection with the death of his girlfriend, Sandra Loveless. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a).) He was sentenced to imprisonment in the Department of Corrections for 4V2 years.

Defendant asserts that the court erred in denying his motion to discharge the jury panel. At issue is whether he presented a prima facie case of a violation of the fair-cross-section requirement. Defendant’s contention is that Boone County’s petit jury selection system, which draws potential jurors from the voter registration list, resulted in an underrepresentation of Hispanics, which thereby deprived him of his right to a jury drawn from a fair cross-section of the community and his right to equal protection under the law.

The defendant filed a timely motion to discharge the jury panel pursuant to section 114 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 3). This motion alleged that the defendant was denied his right to a fair and impartial jury because the venires called in Boone County did not reflect a representative cross-section of the community. In addition to asserting that there were no Hispanic individuals in the instant venire, the defendant alleged the 1980 census showed that 4.3% of Boone County’s population was of Hispanic descent. Accordingly, he concluded that on an 80-per-son jury panel, 3.44 should be of Hispanic descent, and the probability of one Hispanic being selected to a 12-person jury is approximately 31%, and the probability of two Hispanics being selected is 8%. The defendant’s motion further alleged that for the period July 1980 to March 1987, 17 “Venire for Jurors” were issued summoning 1,260 people. (Testimony at the hearing and defendant’s argument here use the figure 1,360.) Of the surnames shown thereon, only five were Spanish. This computes to .004%, which demonstrates a substantial underrepresentation on jury venires of Boone County’s Hispanic population.

When the motion was presented, defense counsel acknowledged that the venire is derived by random selection from the voter registration list in Boone County. Counsel further acknowledged that it was not the defendant’s contention that the county had purposefully excluded Hispanics, but that it may be that Hispanics do not register to vote and so would not be on the list. Counsel suggested more appropriate alternatives were available and named the driver’s license holder list as an example.

At the hearing held on the defendant’s motion, it was stipulated based on defendant’s exhibit No. 1 that the Hispanic population of Boone County according to the 1980 census was 4.3%. It was also stipulated that defendant’s group exhibit No. 2 reflected the names of persons that were actually selected to serve on jury panels in Boone County for the eight-year period 1980 to 1987. It was further stipulated that People’s exhibit No. 1 was a January 1985 list of the names of 1,394 individuals which represented every tenth name on the voter registration list picked by the circuit court clerk to be summoned for jury service. The most recent jury panel selected in September 1987 was randomly selected from amongst those names.

Dr. Burley Bechdolt, an associate professor of economics at Northern Illinois University, was called to testify concerning the statistical probability of Hispanic participation on petit juries in Boone County. Dr. Bechdolt described what the binomial probability distribution theory meant, and, based on the figures obtained from the census report and other pertinent materials, he related that with an Hispanic population of 4.3%, the odds of having one Hispanic on a 12-person jury was 31.8% and the odds of having two Hispanics on a 12-person jury was 8.5%. Dr. Bechdolt testified further it was his understanding that an examination of the 1,360 surnames on the “Venire for Jurors” lists revealed only five Hispanic surnames. Based on that number of Hispanic surnames, Dr. Bechdolt calculated there was a 95.3% probability of having no Hispanics on any given jury. In sum, Dr. Bechdolt found that there was a high probability that “[Yjou’re not going to get any Hispanics on a jury of 12 people.”

Dr. Bechdolt testified further based on that number that the probability of having one Hispanic on a petit jury was 4.6%; the probability of having two Hispanics on a jury was .127%. Dr. Bechdolt opined it would be virtually impossible to have two persons of Hispanic descent on a petit jury in Boone County. Dr. Bechdolt calculated the degree of underrepresentation for Hispanics in Boone County based on the 1980 U.S. census was 90.7%. In calculating this underrepresentation figure, Dr. Bechdolt assumed the 1980 census was correct, that the information about Spanish surnames on the list was correct, and that selection of the jury venire from the voter registration list was a random process.

On cross-examination, Dr. Bechdolt stated that he could not positively identify a number of certain surnames as belonging to Hispanic individuals and that he had been told that only five Hispanics had served on petit juries since 1980. He also testified he did not know what percentage of Hispanics in Boone County were 18 years old or how old they were in 1980 when the census was taken. He further testified he did not know what percentage of Hispanics in Boone County could understand the English language or had anglicized their names. He stated he had no background in genealogy, and he did not know how many Hispanic people had moved in or out of Boone County since 1980.

In response to a query by the court, Dr. Bechdolt stated his determination of the percentage of underrepresentativeness of Hispanics in Boone County would remain the same even if he began his calculations with the “larger population” rather than the jury of 12 (i.e., the voter registration list from which 10% are randomly selected and then randomly pared down to a field of 80 persons from which the 12 jurors are drawn).

Following Dr. Bechdolt’s testimony, argument ensued as to whether the defendant had presented a prima facie case of violation of the fair-cross-section requirement. Defense counsel argued that defendant’s group exhibit No. 2 indicated that of the many persons shown on the list as having been selected to serve on jury panels from 1980 to 1987, only five had Hispanic surnames. Counsel stated the five surnames were identified by himself and the deputy circuit court clerk by going through the list. Counsel argued the prosecution’s own exhibit No. 1, the every-tenth-name list drawn by the circuit court clerk from the voter registration list, reflected “a very few Hispanic surnames.” Inter alia, defense counsel posited that a more equitable cross-section of Boone County could be obtained through the use of the driver’s license holder list instead of the voter registration list.

In his argument in response, the prosecutor noted defense counsel is not a genealogist and has no background in determining the ethnic origin of names. By his own count on People’s exhibit No. 1, the prosecutor identified 14 possibly Hispanic surnames. He pointed out the defendant’s evidence did not take into account how many Hispanic persons were under the age of 18 or may have moved or whether some of the non-Hispanic names on the list were, in fact, Hispanics who had married. The prosecutor further argued Dr. Bechdolt’s testimony was based only on the surname information which was given to him by defense counsel.

The trial court denied the motion to discharge the jury panel. Among other issues raised in his post-trial motion, the defendant alleged the lack of Hispanics on the panel of prospective jurors deprived him of a jury selected from a fair cross-section of the community and constituted a systematic exclusion or underrepresentation of Hispanics. The trial court denied this motion and the defendant appealed.

FAIR-CROSS-SECTION REQUIREMENT

The defendant contends he presented a prima facie case of violation of the fair-cross-section requirement in that the Boone County jury selection system results in a substantial underrepresentation of Hispanics on jury venires and, inasmuch as the State failed to present a significant State interest which would justify such underrepresentation, he requests his conviction be reversed and the cause remanded for a new trial before a jury selected from sources that adequately represent Hispanics.

The defendant’s right to a petit jury drawn from a fair cross-section of the community is embodied in the sixth amendment of the United States Constitution. (U.S. Const., amend. VI; Taylor v. Louisiana (1975), 419 U.S. 522, 528, 42 L. Ed. 2d 690, 697, 95 S. Ct. 692, 697.) In order to show a prima facie violation of this fair-cross-section requirement, the defendant must show (1) that the group allegedly excluded is a distinctive group in the community; (2) that the underrepresentation of that group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the underrepresentation is due to the systematic exclusion of that distinctive group in the jury-selection process. (Duren v. Missouri (1979), 439 U.S. 357, 364, 58 L. Ed. 2d 579, 587, 99 S. Ct. 664, 668; People v. Sledge (1989), 183 Ill. App. 3d 1035, 1043-44.) The defendant need not be a member of the group alleged to be excluded in order to raise a fair-cross-section challenge to the venire (Taylor, 419 U.S. at 526, 42 L. Ed. 2d at 695, 95 S. Ct. at 696-97), and no evidence of intent to discriminate is required (People v. Harris (1984), 36 Cal. 3d 36, 56-57, 679 P.2d 433, 445, 201 Cal. Rptr. 782, 794). When the defendant has presented a prima facie case, the burden shifts to the State to demonstrate that a significant State interest — not merely rational grounds or administrative convenience — justifies the selection process which results in the underrepresentation. Duren, 439 U.S. at 367-68, 58 L. Ed. 2d at 589, 99 S. Ct. at 670; People v. Broadnax (1988), 177 Ill. App. 3d 818, 827-28.

The State concedes the defendant has met the first element of his prima facie case: Hispanics have been recognized to be a distinctive group in the community. (Lockhart v. McCree (1986), 476 U.S. 162, 175, 90 L. Ed. 2d 137, 149, 106 S. Ct. 1758, 1766; Broadnax, 177 Ill. App. 3d at 828.) It argues the defendant has failed to establish the second and third elements of his prima facie case, however.

Defendant posits he established the second element — that the representation of Hispanics in jury venires in Boone County is not fair and reasonable in relation to the number of Hispanics in Boone County — with evidence from the 1980 census that the Hispanic population of Boone County was 4.3%, and that out of 1,360 names on Boone County venire lists, only five surnames were Spanish. Defendant contends his reliance on Spanish surnames as evidence of ethnicity was proper, citing in support Hernandez v. Texas (1954), 347 U.S. 475, 98 L. Ed. 866, 74 S. Ct. 667, and Castaneda v. Partida (1977), 430 U.S. 482, 51 L. Ed. 2d 498, 97 S. Ct. 1272.

Although the identifiablity of Spanish surnames was acknowledged in both of those cases, the State in Castaneda raised no challenge to the reliability of the statistics offered by the defendant, and persons of Spanish surnames included in the census count were determined by reference to a list of 8,000 Spanish surnames compiled by the Immigration and Naturalization Service. (Castaneda, 430 U.S. at 486 n.5, 51 L. Ed. 2d at 505 n.5, 97 S. Ct. at 1276 n.5.) The State here challenged the reliability of the defendant’s seven-year-old census figures, which had not been supplemented with any later studies of population changes as was done in People v. Harris (1984), 36 Cal. 3d 36, 47, 679 P.2d 433, 438, 201 Cal. Rptr. 782, 787. The State also challenged the reliability of the defendant’s identification of Spanish surnames on the venire lists which, as defense counsel admitted, was accomplished by him going over the lists with the circuit court clerk. Expert testimony could have been offered on this point as was done in Broadnax (177 Ill. App. 3d at 823) or reference made to a list such as the one noted in Castaneda or a simple survey of veniremen conducted, as in Harris, which included a question as to the venireman’s ethnicity. The only portion of the defendant’s group exhibit No. 2 included in the supplemental record (which was stipulated to reflect the jurors that were actually selected to serve on jury panels in Boone County from 1980 to 1987) consists of five “Venire for Jurors” lists dated from July 30, 1985, to July 22, 1987, showing 400 names. Consequently, any possibility of an independent analysis of the 1,360-name venire lists by this court for the presence of Spanish surnames has been foreclosed.

Inasmuch as Dr. Bechdolt’s testimony was premised on the seven-year-old census figures and defense counsel’s unsubstantiated representation that only five Spanish-surnamed persons appeared on the venire lists, the reliability of Bechdolt’s statistical probability calculations is questionable. Moreover, as the State points out, the statistical probability of having either one or two Hispanics seated on a jury of 12 in Boone County is flawed since such statistical probability presupposes randomness whereas there are any number of proper reasons why some veniremen will not be chosen as petit jurors considering dismissals for cause and peremptory challenges.

We agree with the State that the defendant’s evidence of underrepresentation was unreliable and insufficient to establish the second element of his prima facie case. Recent decisions of this court support the conclusion that the defendant’s evidence here was insufficient. In Broadnax, we upheld the circuit court’s finding that the defendant’s evidence was inadequate and insufficient to establish a prima facie case of a fair-cross-section violation, and the defendant there offered far more evidence than the defendant here. The defendant’s evidence in Broadnax included census information, legislative debates concerning amendments to the jury selection statutes (Ill. Rev. Stat. 1985, ch. 78, pars. 1, 25), expert testimony regarding Hispanic surnames, testimony regarding current venire selection practices, visual observation of veniremen over a four-month period by three different persons, and affidavits from three attorneys whose collective experience encompassed 195 jury trials in Kane County over a 26-year period (Broadnax, 177 Ill. App. 3d at 823-25.) In our other recent decision finding the defendant failed to present a prima facie case, People v. Sledge, the defendant offered only the testimony of an acting jury commissioner for Du Page County which established that approximately 320 jurors were randomly selected from a voter registration list and summoned to the courthouse each week. Of those, the jury commissioner “opined” that four to eight were black persons and that this number of blacks was about equal from week to week. This court found the defendant failed to establish the second and third elements of his prima facie case inasmuch as he failed to present any evidence establishing the population of black persons in Du Page County and that the systematic exclusion of blacks could not be due to the voter registration list selection process inasmuch as there is no way to determine a person’s race from that selection process. Sledge, 183 Ill. App. 3d at 1044-45.

Because the defendant failed to establish the second element of his prima facie case, it was not error for the court to deny his motion to discharge the jury panel.

EQUAL PROTECTION REQUIREMENT

The defendant has waived the equal protection requirement issue by failing to raise it below. Defendant’s motion to discharge the jury panel alleged only the violation of the fair-cross-section requirement, and there was no argument on the equal protection requirement issue during the hearing on the defendant’s motion. It is clear that issues not raised in the trial court are considered waived on appeal (People v. Holman (1984), 103 Ill. 2d 133), although we may, in our discretion, consider such issues where the evidence is closely balanced or where the error is of such magnitude that the accused was denied a fair trial (People v. Palmer (1989), 188 Ill. App. 3d 414). The evidence here is not closely balanced, and the defendant has failed to demonstrate an error in the selection of the jury which denied him a fair trial.

As we noted in Broadnax, the selection of both grand and petit jurors free from any taint of discriminatory purpose is a right guaranteed under the equal protection clause. (Broadnax, 177 Ill. App. 3d at 827, citing U.S. Const., amend. XIV; Strauder v. West Virginia (1880), 100 U.S. 303, 25 L. Ed. 664.) A defendant has presented a prima facie case of an equal protection violation in the selection of a petit jury venire if he establishes (1) that the group to which he belongs is one that is a recognizable class of persons capable of being singled out for discriminatory treatment; (2) substantial under-representation of that recognizable class of persons over, a significant period of time; and (3) a discriminatory purpose in such underrepresentation which may be shown either by the strength of the statistical showing (i. e., the “rule of exclusion”) or by showing a selection procedure that is susceptible of abuse or is not racially neutral to support the inference of discrimination raised by substantial underrepresentation. (Castaneda, 430 U.S. at 494-95, 51 L. Ed. 2d at 510-11, 97 S. Ct. at 1280; Broadnax, 177 Ill. App. 3d at 830; Sledge, 183 Ill. App. 3d at 1046; People v. Rosa (1982), 111 Ill. App. 3d 384, 388.) Once the defendant establishes a prima facie case of an equal-protection violation, the burden shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures were employed. Sledge, 183 Ill. App. 3d at 1046; Rosa, 111 Ill. App. 3d at 388.

The State concedes that the defendant, an Hispanic, clearly has standing to challenge the Boone County jury selection system with respect to Hispanic jurors and, thus, the first element of the defendant’s prima facie case has been established. The defendant argues he has met the “rule of exclusion” element of his prima facie case by showing unequivocally “that Hispanics are represented on petit juries substantially less than their proportion in the total population — 4.3% of the general population versus .004% of 1,360 jurors picked in a nearly two-year period.” As noted in Broadnax, “ ‘the idea behind the rule of exclusion is [that] *** [i]f a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident and, in the absence of evidence to the contrary, one must conclude that racial or other class-related factors entered into the selection process.’ Castaneda, 430 U.S. 482, 494 n.13, 51 L. Ed. 2d 498, 510 n.13, 97 S. Ct. 1272, 1280 n.13.” (Broadnax, 177 Ill. App. 3d at 830.) Defendant notes that State has never refuted the substantiality of the underrepresentation shown by his statistical evidence but, rather, has challenged “only *** the reliability of [his] figures.”

Without reliable figures, however, the defendant’s statistics purportedly demonstrating the substantial underrepresentation of Hispanics are equally unreliable and any discriminatory purpose that conceivably could be deduced from such underrepresentation is nothing more than idle speculation. The State also challenges the defendant’s showing of underrepresentation on the basis it was not shown to have occurred over a significant period of time. The statistical time period relied on here was the two-year period 1985 to 1987. As the State argues, the significance of this time period pales when compared with the 11-year period in Castaneda (430 U.S. at 494-96, 51 L. Ed. 2d at 510-11, 97 S. Ct. at 1280-81), and the defendant does not argue in reply that the two-year period should be considered to be a “significant” period.

We conclude that the defendant failed to provide reliable statistics establishing substantial underrepresentation of Hispanics over a significant period of time in Boone County and, thus, failed to establish his prima facie case. Defendant’s argument concerning the State’s failure to rebut his equal protection challenge to the jury selection is not well taken where it is clear the trial court determined the defendant failed to establish his prima facie case and, thus, the burden never shifted to the State.

The judgment of the circuit court of Boone County is affirmed.

Affirmed.

DUNN and INGLIS, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LILLIE ENGRAM, Defendant-Appellant.
    Second District
    No. 2—89—0011
    Opinion filed January 22, 1990.

      Donna R. Henderson, of Henderson & Henderson, of Waukegan, for appellant.

      Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Following a jury trial, defendant, Lillie Engram, was convicted of attempted first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9—1(a)(1)) and sentenced to six years’ imprisonment. On appeal, defendant contends that she did not receive a fair trial because (1) voir dire questions concerning the guilty but mentally ill (GBMI) verdict violated Supreme Court Rule 431 (107 Ill. 2d R. 431) and the State’s later withdrawal of the GBMI instructions and verdict form confused the jury; (2) the court failed to provide the GBMI verdict form and instructions; (3) she was denied the right to open and close final arguments; and (4) improper comments by the prosecution prejudiced her case. She also contends that the jury’s finding that she was not insane at the time of the offense is against the manifest weight of the evidence and the Illinois scheme for dealing with defendants with mental problems is unconstitutional.

At trial, defendant’s husband, Willie Engram, testified that just after midnight on October 26, 1987, his wife shot him. He was lying in bed when he heard the cylinder of a gun revolving. He turned his head and heard the gunshot. He was shot in the right forehead; the bullet exited his head and went into his pillow. After the gun went off, he jumped up, grabbed defendant’s hand and started yelling. The gun went off again; the second bullet struck the wall. Engram testified that his wife owned a .32-caliber gun and it was customarily kept in their house.

On cross-examination, Engram testified that on the day of the incident he had had no argument with his wife, she made no threats, and there was no indication of a problem. They conversed about their activities and planned a shopping trip for the next day. Engram observed that during the struggle for the gun defendant had a blank stare and looked across at the wall, not at Engram. After the second shot, defendant let go of the gun and walked out of the room without saying anything. Defendant went into the other bedroom and sat on the side of the bed with a blank stare. Engram testified that defendant had had psychiatric problems beginning in 1975. She had been hospitalized in 1979 and 1981 and three times during 1987. She had been released from the psychiatric ward of St. Therese’s Hospital two days before the incident. Prior to this hospitalization, defendant had never been violent toward anyone. Engram testified that defendant had talked of hearing voices since the mid-1970’s and that during 1987 she would often get into depressed states. Defendant had complained that people were trying to harm her and that she had been under voodoo spells. Dr. Barrionuevo had been defendant’s treating psychiatrist since 1976. Engram felt that at the time of the shooting defendant “didn’t know what she was doing or what had happened.”

On redirect, Engram testified that on the day of the incident defendant fed, washed and dressed herself and carried on and understood normal conversations. She lay down most of the day because she was not feeling well because of her medication; otherwise, she acted normally.

Fernando Shipley, a Waukegan police officer, testified that he interviewed defendant at approximately 8:30 a.m. on the morning of the incident. He gave her the Miranda warnings, and she indicated that she understood her rights and signed a rights waiver form. Shipley took a statement from defendant and asked her to write out a handwritten statement of her account of the shooting incident. The officer’s typed summary of the conversation and defendant’s handwritten statement were offered into evidence.

Technical evidence concerning the recovery of evidence and ballistics tests was offered, and the State rested.

Maisie Davis, defendant’s mother, testified that she was called to the Engram home after the shooting and that she got there before the police arrived. She saw Lillie standing in the bedroom doorway just staring. Defendant would not respond to Davis’ questions. Davis testified that at the time of trial defendant was living with her and taking three kinds of medication.

Dr. Leo Goldman, a psychiatrist, testified in defendant’s behalf. Dr. Goldman testified that he examined defendant on January 13 and 18, 1988. Each session was approximately one hour long. On one of these occasions he also spoke with defendant’s mother. He also reviewed defendant’s hospital records from 1977 through 1988, the police reports, and defendant’s voluntary statement to the police. Dr. Goldman testified that defendant’s medical records indicated that her mental illness probably started several years before her first hospitalization. She had experienced various delusions; the original delusion was that a neighbor had cast a voodoo spell on her and was trying to take her husband. Defendant heard voices that belittled her and called her names. She had become distraught and called the police on some occasions. The police told defendant’s husband to try to control her because she was irrational. She was hospitalized in confused and agitated states. She also had a delusion that some people had put a knife to her throat at a theater and made her drink poison; when she went to the emergency room to have her stomach pumped, the people that had attacked her would not let her in and chased her away. Defendant has had periods of remission. There have been many times when she was “noncompliant with medication,” which might explain a recurrence of psychotic thinking. However, even during times when defendant had been taking medication, there had been recurrences of delusions and hallucinations. The hallucinations have changed over time to where she believed that family members had beaten her and were calling her names and conspiring to kill her. She believed that her husband was under a voodoo spell that made him mean. Her husband would not give her money to get the voodoo spell removed. She had consulted a witch doctor to have the voodoo spell removed.

Dr. Goldman diagnosed defendant as having schizophrenia, paranoid type. He defined this condition as a mental disorder or disease with disorganization of thinking, delusions, hallucinations and “flattening” of emotional response. He based this diagnosis on the defendant’s age at the onset of her problems, the length of time of her disorganized thinking and emotional blunting, and the history of treatment with neuroleptics (antipsychotic drugs) to control delusions and hallucinations. It was his opinion that defendant was insane at the time of the shooting. He based that opinion on the fact that the act “seemed quite irrational” and that over the years there had been severe disorganizations of her thought and an “inability to conduct her behavior in a way that would be appropriate.” Her inappropriate behavior was based on hallucinations, delusions and inability to “recognize cause and effect,” use “appropriate judgment” and understand the consequences of her behavior. Also, there was a marked separation of the act from the emotions and from logical thinking. He did believe, however, that defendant knew she was shooting her husband.

On cross-examination, he admitted that nothing in the record indicated that defendant was hallucinating on the day of the incident. Defendant denied motivation for the shooting. Dr. Goldman said it was a sudden impulsive behavior. He admitted that defendant intended to kill her husband and also intended to kill herself. He further admitted that his diagnosis was not based on the events surrounding the shooting.

Dr. Werner Tuteur, a psychiatrist, testified for the State. He examined defendant in March 1988. He had a l^-hour session with defendant and a 20-minute talk with defendant’s mother. During the interview, he felt that defendant was in full contact, that is, she knew where she was and who Dr. Tuteur was, and she answered questions willingly. Defendant denied hearing voices for the last two years. She did not display paranoid ideas. Defendant told Dr. Tuteur that she was jealous of her husband. She thought he was going with other women, and “she did not want that.” She denied that voodoo had anything to do with the shooting incident. She said that she had planned to kill her husband and to commit suicide. Dr. Tuteur felt that defendant was not insane at the time of the offense because she had “no mental disease which would have substantially incapacitated her to recognize the criminality of her act and to live up to the requirements of law.” Defendant was not acting under a delusion; she had intent and knowledge of what she had done.

On cross-examination, Dr. Tuteur testified that before he examined defendant he had reviewed Dr. Goldman’s report, the police report, and defendant’s voluntary statement. He did not review defendant’s hospital records until the day of trial. Defendant told Dr. Tuteur that she had been hospitalized many times, but she did not know the number of her hospitalizations, and she did not know what medication she was taking. She said that she had been hospitalized for “voices” that called her “bad names.” Dr. Tuteur testified that defendant was not able to describe symptoms in general, and, “for practical purposes,” this meant to him that there were no symptoms in the past. He said it was possible, however, that this inability to provide information was a sign of mental disease. He also felt the defendant’s size, 260 pounds, impedes her mental functions in general. Defendant was not spontaneous in conversation but did answer questions.

Dr. Tuteur said he chose to believe defendant when she denied a connection between the voodoo spells and the shooting. He felt that defendant was not preoccupied with voodooism. In his opinion defendant never had delusions about being under a voodoo spell. A delusion is a fixed false idea. When asked whether hospital records showing that voodoo delusions dated back to 1977 would change his mind, he said no. He said a schizophrenic with delusions about voodoo and paranoia, even while in remission, would not deny preoccupation with the voodooism. He stated that when he reviewed defendant’s hospital record he focused on the diagnoses, with which he disagreed. He did not review the history of symptoms upon which these diagnoses were based. He testified that even if the record showed defendant had complained of voodoo spells and voices going back to 1977, that would not change his mind concerning whether defendant was schizophrenic. He testified that someone with a long history of schizophrenia would be much worse in spite of treatment; however, defendant had improved. Dr. Tuteur admitted that there are discrepancies between what defendant wrote in her voluntary statement to police and what she told him during the interview. He testified that defendant had decided to act on the day of the incident because her feelings of jealousy had reached a climax and she wanted to do something about it. She was unhappy; she wanted to die. Defendant told Dr. Tuteur she had been thinking about the shooting for several days before she did it.

On redirect, Dr. Tuteur testified that the last diagnosis in the hospital records is paranoid disorder and that diagnosis was made just two days before the shooting incident. Paranoid disorder is a much more harmless disorder than schizophrenia.

Officer Shipley testified again in rebuttal. Officer Shipley testified that when he interviewed defendant on the morning of the incident, she was very calm and seemed to be very well aware of where she was. She appeared normal in all senses. She did not appear to have any problem understanding her rights or in writing out her voluntary statement. Her replies to his questions were responsive. On cross-examination, he testified that during their interview defendant did mention voodoo spells and that she had been under the care of Dr. Barrionuevo.

Following the trial, defendant was convicted of attempted first degree murder and was sentenced to six years’ imprisonment. She filed this timely appeal.

Defendant first contends that certain questions posed by the court during voir dire violated Supreme Court Rule 431 (107 Ill. 2d R. 431). Rule 431 provides that in criminal cases voir dire examination of jurors shall be conducted in accordance with Supreme Court Rule 234. Rule 234 provides:

“The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions. The court may acquaint prospective jurors with the general duties and responsibilities of jurors.” 107 Ill. 2d R. 234.

The questions defendant complains of concern the insanity defense and the GBMI verdict. During voir dire, the trial court informed jurors that there might be evidence that defendant was insane at the time of the offense, and it asked them whether they would be able to follow instructions concerning entry of a verdict of not guilty by reason of insanity. The court also asked jurors whether they could follow instructions concerning entry of a verdict of GBMI or whether they had “any quarrel with that proposition.”

The voir dire questions defendant challenges were not improper as concerning “matters of law or instruction.” The purpose of a voir dire is to select a fair and impartial jury. (People v. Teague (1982), 108 Ill. App. 3d 891, 894.) The insanity defense is a subject of intense controversy (People v. Stack (1986), 112 Ill. 2d 301, 313); parties have a right to have jurors specifically examined concerning the insanity defense when it is involved in a case (People v. Jurczak (1986), 147 Ill. App. 3d 206, 216). The same holds true for the GBMI verdict. The judge’s questions were directed at ascertaining the jurors’ attitudes toward and possible bias against the insanity defense and the GBMI verdict and determining whether they could follow the court’s instructions on the law concerning these specific matters. As such the questions were proper. See Stack, 112 Ill. 2d at 311-13.

We note that, during voir dire, the trial court did inform the jurors that the State did not have to prove defendant was sane but, rather, that it was defendant’s burden to prove by a preponderance of the evidence that she was insane at the time of the offense. Although these questions did preeducate the jury concerning the burden of proof on the insanity defense and, therefore, may technically violate Rule 234, defendant offered no objection at trial to these questions and has not made particular note of them in her brief. Furthermore, the questions do properly state the law, and we do not believe these questions affected the impartiality of the jury in any way by improperly indoctrinating the jury to either party’s position; nor were they used as a means of impaneling a jury with a particular predisposition. (See People v. Bowel (1986), 111 Ill. 2d 58, 64.) In light of the fact that the jury had been informed during voir dire that the State had the burden of proving the elements of the crime beyond a reasonable doubt, we do not consider it prejudicial to defendant to inform the jurors that defendant had the burden of proving insanity by a preponderance of the evidence.

Defendant’s major complaint concerning the voir dire questioning, however, centers on the fact that although the jurors were asked about the GBMI verdict during voir dire, the State later withdrew that verdict form and its attendant instructions. Defendant contends that the unexplained withdrawal of the GBMI verdict confused the jury and, thus, denied defendant a fair trial. Apparently, defendant believes that the voir dire questioning concerning GBMI preeducated the jury to the possibility that defendant might be mentally ill (but not insane), yet jurors were never given a legal definition of mental illness which they could apply to the case.

Although jurors were questioned about the GBMI verdict during voir dire, we cannot assume from this that they were confused when no GBMI verdict form and instructions were provided. Nor has defendant suggested how this alleged confusion manifested itself. Following the evidence, the jury was given verdict forms for not guilty, not guilty by reason of insanity, and guilty and fully instructed on the law and the burdens of proof applicable to those verdicts. Defendant does not allege that the instructions the jury actually received were improper in any way. The jury apparently believed that the State had met its burden as to the elements and that defendant had not met her burden of proving insanity. There is simply no basis for defendant’s contention that the jury was confused.

Defendant also contends that the trial court should have provided the jury with the GBMI instructions and verdict form even though the State had chosen to withdraw the verdict. Section 115— 4(j) of the Code of Criminal Procedure of 1963 provides, in part:

“When the affirmative defense of insanity has been presented during the trial, the court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill, as to each offense charged and shall separately instruct the jury that a special verdict of guilty but mentally ill may be returned instead of a general verdict, but that such special verdict requires a unanimous finding by the jury beyond a reasonable doubt that the defendant committed the acts charged and that the defendant was not legally insane at the time of the commission of those acts but that he was mentally ill at such time.” Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j).

Submission of the GBMI instruction is discretional with the trial court. (People v. McDarrah (1988), 175 Ill. App. 3d 284, 297.) In this case, there was evidence that defendant had been hospitalized for mental problems several times over a 12-year period, and defendant’s expert testified that defendant was insane at the time of the offense. However, neither party requested the GBMI verdict. The State apparently tendered the verdict and attendant instructions to the court but later withdrew them. Although the evidence may have warranted giving the GBMI verdict in this case, defendant has not alleged or demonstrated that failure to give this verdict prejudiced her case. She makes no representation that she would have been better off if the GBMI verdict were given here. Furthermore, contrary to defendant’s contentions, the State did not conduct its case on the GBMI theory. During its case in chief, the State offered no evidence concerning mental illness. Therefore, defendant’s contention that the entire case was “tried on not guilty by reason of insanity versus [GBMI] basis” is not persuasive. We conclude that the trial court’s failure to provide the GBMI verdict was not an abuse of discretion.

Defendant also contends that improper comments by the prosecution during final argument denied her a fair trial. The first error defendant points to is the assistant State’s Attorney’s comment in closing argument concerning defendant’s failure to call her treating psychiatrist, Dr. Barrionuevo, as a witness. The assistant State’s Attorney said:

“We don’t have to prove that she was sane. They have to prove by a preponderance of the evidence that she was insane. I submit to you that probably the best way to have proved that, to have sustained their burden, would have been to call Dr. Barrionuevo in here — .”

The defendant objected to the comment, and the trial court instructed the jury to disregard the comment and advised the jury that the witness was equally available to both sides.

Although it is improper to comment on defendant’s failure to call a nonalibi witness (People v. Adams (1985), 109 Ill. 2d 102, 120), defendant objected immediately, and the court instructed the j jury to disregard the comment. Generally, such actions are considered sufficient to cure any prejudice from improper remarks. (Webb v. Angell (1987), 155 Ill. App. 3d 848, 853.) Defendant contends, however, that the prejudice was not cured as evidenced by the jury’s request, during its deliberation, for defendant’s hospital records. We fail to see a connection between this comment and the jury’s request for the records. Before the comment was made, the jury knew that Dr. Barrionuevo was defendant’s treating psychiatrist and that defendant had been hospitalized numerous times. If the jurors’ request was prompted by attorney comment, we consider it more likely that it was prompted by defense counsel’s own final argument statement concerning medical records. Defendant’s attorney stated:

“Now, Dr. Goldman testified in a great deal of detail actually to what is in all of the St. Therese Hospital records and what’s in the discharge summaries prepared by Dr. Barrionuevo and about Dr. Barrionuevo’s diagnosis and what treatment he was rendering. Dr. Barrionuevo’s views are in the record. You’ll have them.”

This comment may have suggested to the jury that the hospital record would be available to them during deliberation. We consider that any prejudice created by the prosecution’s comment was cured by defendant’s timely objection and the trial court’s instruction to disregard the comment.

Defendant also points out that during rebuttal, the assistant State’s Attorney misquoted defense counsel and stated a new definition of defendant’s burden of proof on insanity. The challenged statement is as follows:

“First of all, he says to you that you only have to find by a preponderance of evidence that it was probably more that she was insane than sane, and I think to hear somebody say you only have to find by a preponderance really is not accurate. You have to find by a preponderance. There is no only about it. It’s for you to determine what a preponderance is.”

Defendant points out that defense counsel had never said “only” a preponderance and that the comment misstates the law in that it leaves to the jury the defining of preponderance. Defendant never objected to this comment at trial, however, and the issue is waived for appeal. (People v. Teague (1982), 108 Ill. App. 3d 891, 904.) Even if the issue were not waived, the comment did not prejudice defendant. During jury instructions, the court properly instructed the jury concerning the burden of proof and the definition of a preponderance of the evidence. These proper instructions cured any prejudice created by the prosecutor’s comment.

Defendant also contends that she should have been allowed to open and close final arguments at trial because sanity was the only issue and defendant had the burden of proof on that issue. We disagree. The general rule is that the right to open and close is coexistent with the burden of proof, and where plaintiff has anything to prove in order to secure a verdict, the right to open and close belongs to him. (McDarrah, 175 Ill. App. 3d at 296.) In criminal cases, the prosecution has the burden of proving beyond a reasonable doubt all of the material and essential elements of the crime. (People v. Fields (1988), 170 Ill. App. 3d 1, 17.) “Even though defendant did not contest performance of the charged acts or the intent that accompanied them (thus refraining from putting them in issue), he need not have contested them or offered any evidence at all, yet the State was still required to prove them.” (Fields, 170 Ill. App. 3d at 17.) Notwithstanding defendant’s insanity defense and statutory obligation to prove that defense by a preponderance of the evidence, the State was not relieved of first proving defendant guilty beyond a reasonable doubt; therefore, because the State bore the primary burden of proof here, the trial court properly allowed the State to open and close final arguments. See McDarrah, 175 Ill. App. 3d at 296.

Defendant also contends that she met her burden of proving insanity by a preponderance of the evidence and the jury’s verdict of guilty is against the manifest weight of the evidence. The question of sanity is a question of fact, and the decision of the trier of fact will not be reversed unless it is contrary to the manifest weight of the evidence. (People v. Martin (1988), 166 Ill. App. 3d 428, 433.) Defendant contends that the State’s psychiatric expert was inconsistent and not credible. She states that Dr. Tuteur based his opinion that defendant was sane at the time of the offense on a lVa-hour interview; that he never saw the hospital records before the day of trial; and that when he saw the hospital records he did not review the history of symptoms or complaints but only the diagnoses. Although Dr. Tuteur did not read defendant’s hospital records before he formed his opinion on sanity, he did read Dr. Goldman’s detailed summary of defendant’s previous psychiatric hospitalizations and treatments. His opinion was based on this, as well as on the interview, the police report and defendant’s statements.

Defendant also points out that when he was asked whether schizophrenia can sometimes be controlled by medication, Dr. Tuteur said it can be controlled and it can improve; yet, later, he said “a schizophrenic who allegedly had those symptoms years later would be much worse even in spite of treatment with medication and there is no worsening in [defendant’s] condition.” Apparently, defendant considers these statements contradictory. We disagree. The first statement admits that medication can help; the second says that over a prolonged period of time, however, there will be a worsening of the condition. We see no contradiction there.

Defendant also points out that defendant was taking neuroleptics to control delusions and hallucinations, apparently as evidence that Dr. Tuteur’s conclusions about defendant’s lack of delusions is not believeable. However, although the experts disagreed about whether defendant was schizophrenic and whether she was insane at the time of the offense, Dr. Goldman did agree with Dr. Tuteur that on the day of the incident defendant was not acting under the influence of delusions or hallucinations.

Additionally Dr. Tuteur’s opinion that defendant was sane is supported by other evidence. There was lay testimony that defendant acted normally on the day before the incident and she appeared normal during the police interview following the incident. Further, there was evidence that defendant planned the shooting. She told Dr. Tuteur that she had been thinking about it for a few days. She intended to kill her husband and then herself. She told Officer Shipley that she meant to kill her husband so she waited for him to go to bed. The existence of a plan for a crime is a relevant factor in determining a defendant’s sanity. People v. Bouchard (1989), 180 Ill. App. 3d 26, 34.

Under these circumstances, we find no basis for disturbing the jury’s finding that defendant failed to establish her insanity by a preponderance of the evidence.

Finally, defendant contends that the Illinois scheme for dealing with defendants with mental problems is unconstitutional as a system. Although defendant refers to the interrelationship between the insanity defense and the GBMI verdict, we note that the GBMI verdict form was not used in this case; therefore, its constitutionality is not properly before us. Furthermore, the constitutionality of sections 3 — 2(b) and 6 — 2(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 2(b), 6 — 2(e)), which give defendant the burden of proving insanity by a preponderance of the evidence, has been addressed by our courts before. The statutes have been found to be constitutional. Defendant has presented no new arguments in favor of her claim that the insanity defense statutes are unconstitutional. We consider that the court’s prior decisions on the issue are dispositive, and we decline to reconsider it. See People v. Clemons (1989), 179 Ill. App. 3d 667; People v. McDarrah (1988), 175 Ill. App. 3d 284; People v. Hightower (1988), 172 Ill. App. 3d 678; People v. Martin (1988), 166 Ill. App. 3d 428.

For the above mentioned reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

INGLIS and DUNN, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM THOMAS, Defendant-Appellant.
    Second District
    No. 2—88—0116
    Opinion filed January 22, 1990.
    G. Joseph Weller and Francine Harrison, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, William Thomas, was charged by information with the offenses of armed robbery, reckless conduct, aggravated assault, unlawful use of a weapon, theft of a firearm, and battery. On January 7, 1987, pursuant to negotiation with the State, defendant entered a plea of guilty to a reduced charge of robbery and was sentenced to a period of 36 months’ probation. A condition of his probation was that he not violate any criminal statute of any jurisdiction.

On August 31, 1987, the State filed a petition for revocation of the defendant’s probation. This petition contained two counts, each of which alleged that the defendant had violated his probation by unlawfully possessing less than 15 grams of the controlled substance diazepam (count I) and alprazolam (count II) in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56V2, par. 1402(b)).

The cause proceeded to a hearing on September 1, 1987, at which time defendant was represented by an assistant public defender. After hearing the evidence presented by both parties, the court found by a preponderance of the evidence that defendant had violated his probation, whereupon the court revoked defendant’s probation and ordered a presentence investigation and report.

At the sentencing hearing held on September 18, 1987, defendant was represented by private counsel. After hearing argument from both counsel, the court sentenced defendant to a term of five years’ imprisonment for the original offense of robbery.

On October 17, 1988, defendant mailed his motion to reduce sentence to Judge Hoogasian’s clerk. This motion was filed by the clerk of the circuit court on October 20, 1988.

Pursuant to section 5 — 8—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(c)), defendant filed a motion to reduce his sentence. At the November 19, 1987, hearing on said motion, defendant appeared pro se. He was not offered appointed counsel, nor was he asked if he wished to waive representation by counsel. Thereat, the State objected to the motion on the basis that it had not been filed within 30 days of the judgment. The State failed to note, however, that the mailing date of the motion was, in fact, within the 30-day period. The court found that, since defendant had been brought to court from prison pursuant to a writ of habeas corpus ad prosequendum, defendant should be allowed to argue his motion.

Defendant argued that, prior to the hearing on the State’s petition to revoke his probation, he was made an offer for a plea agreement. He said that this offer was conveyed to him by his then-appointed counsel and that he at first declined the offer but later accepted it. Defendant alleged further that his private attorney at sentencing refused to call any witnesses who could prove that the plea offer was made. Valerie Ceckowski, the assistant public defender who represented defendant at the probation revocation hearing, testified that defendant apparently misunderstood the substance of her negotiations with the State and that the plea offer that defendant referred to was never actually made. The prosecutor also denied having made such a plea offer. The court then denied defendant’s motion to reduce sentence.

On February 3, 1988, the defendant filed a pro se motion for credit for time served on probation with the clerk of the circuit court. On the same date, the court denied said motion.

On appeal, defendant raises two issues, namely, that he was denied his constitutionally guaranteed right to counsel at the hearing on his motion to reduce his sentence and that the trial court had no authority to deny him credit for time served on probation.

Both sides agree that the sixth amendment’s guarantee of the assistance of counsel applies to all “critical stages” of criminal proceedings. (United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.) The parties also agree that sentencing is a critical stage of criminal proceedings. (People v. Smith (1985), 133 Ill. App. 3d 574.) However, defendant contends that a hearing on a motion to reduce a sentence is a critical stage, and the State argues that such a hearing does not rise to being a critical stage.

Initially, we note that defendant does not cite any authority for his contention but merely asserts that a hearing to reduce or modify any sentence is as crucial as the sentencing hearing itself.

In response, the State cites Mempa v. Rhay (1967), 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254, wherein the Supreme Court noted that counsel is required at every stage where substantial rights of a criminal accused might be affected. Mempa also observed that an important consideration is whether legal rights could be lost if not exercised at the relevant stage of criminal proceedings. The State contends that neither of these considerations is at issue in a hearing to reduce the sentence, and, therefore, a trial court is not required to appoint counsel to an indigent defendant at such a hearing. We agree.

As the State asserts, the motion to reduce a sentence, unlike a post-trial motion, is not required as part of a trial, and a defendant’s failure to raise an issue in said motion will not result in its waiver of the issue on appeal. Moreover, there is no case law which bars appellate review of a sentence for failure to make a motion to reduce the sentence.

In People v. Parr (1976), 35 Ill. App. 3d 539, defendant contended that his sentence should be reduced. The State argued that this motion had been waived because defendant failed to file a motion for sentence reduction pursuant to section 5 — 8—1(d) of the Unified Code of Corrections. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(c).) The Parr court observed that the cited statute enlarged the trial court’s power to modify the sentence it had imposed. The Parr court went on to say that it was “unaware of any authority for the State’s proposition that the failure to file such a motion constitutes a waiver of any review of the severity of the sentence imposed.” (Parr, 35 Ill. App. 3d at 543.) The court then expressly refused to interpret the statute in the manner suggested by the State. We find the Parr holding to control here. A defendant’s failure to move the trial court to reduce his sentence does not result in the waiver of the issue of the sentence’s severity on appeal.

Thus, under both considerations put forward in Mempa, a hearing on a motion to reduce sentence is not a critical criminal proceeding. Consequently, the court below was not required to appoint counsel to represent defendant at the hearing on the motion to reduce sentence.

Defendant also contends that the trial court had no authority to deny him credit for time served on probation. Defendant argues that the pronouncement of his sentence preceded the amendment of section 5 — 6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4(h)). The former version of section 5 — 6— 4(h) was in effect. It read in pertinent part:

“Time served on probation, conditional discharge or supervision shall be credited by the court against a sentence of imprisonment *** unless the court orders otherwise.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-4(h).)

This section was subsequently amended, effective January 1, 1988, and it now provides that such credit will not be given unless the court so orders.

As defendant argues, and the State concedes, because the trial court did not order denial of .credit for time served on probation, defendant is entitled to such credit. People v. Hills (1980), 78 Ill. 2d 500.

This cause is remanded for correction of the mittimus so that it reflects the credit to defendant’s sentence for the time he served on probation.

Affirmed in part; remanded in part.

DUNN and McLAREN, JJ., concur.