author: JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN WIELGOS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3688
    Opinion filed October 9, 1991.

      Genson, Steinback & Gillespie, of Chicago (Edward M. Genson and Marc W. Martin, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant, Stephen Wielgos, was convicted of delivering more than 30 grams of a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)) and was sentenced to six years in prison.

This cause now comes before us on remand from the supreme court (People v. Wielgos (1991), 142 Ill. 2d 133, 568 N.E.2d 861) to consider issues presented by defendant which this court did not reach in our previous decision on this matter (People v. Wielgos (1989), 190 Ill. App. 3d 63, 545 N.E.2d 1031). Defendant contends that a new trial is required on the grounds that: (1) the State violated the discovery rules by failing to tender certain oral statements made by defendant during his arrest; and (2) numerous alleged instances of prosecutorial misconduct constitute reversible error.

For the reasons which follow, we affirm the judgment of the circuit court.

The facts need not be fully repeated here since they are detailed in both the decision of the supreme court (Wielgos, 142 Ill. 2d 133, 568 N.E.2d 861) and the prior opinion of this court (Wielgos, 190 Ill. App. 3d 63, 545 N.E.2d 1031). In short, defendant admitted that he delivered four ounces of cocaine to an undercover police officer but asserted the defense of entrapment. Over a span of several weeks, Edward Ruschinski, a codefendant, negotiated to sell cocaine to Eric Bjankini, an undercover police agent who used the alias identity of “Steve Hilton.” Ruschinski then turned to defendant to locate a source for the drugs. After repeated refusals to become involved in a drug transaction, defendant finally agreed to obtain the cocaine from his friend Tony Creagh.

Thereafter, while under surveillance by police officers, defendant procured the cocaine through Creagh and delivery took place in defendant’s home with Bjankini, Ruschinski, and defendant present. After Officer Bjankini left defendant’s house, the police officers converged upon his home and arrested Ruschinski and defendant.

The trial court instructed the jury on the defense of entrapment but omitted language in the instruction which would recognize the defense of "vicarious entrapment, i.e., entrapment by an agent of a pub-lie officer. The jury found defendant guilty and thereby implicitly rejected his entrapment defense.

On appeal, this court found that the statute codifying the defense of entrapment (Ill. Rev. Stat. 1983, ch. 38, par. 7—12) allows the defense of vicarious entrapment. Accordingly, we concluded that the omission of the vicarious entrapment language from the jury instruction was reversible error. Wielgos, 190 Ill. App. 3d 63, 545 N.E.2d 1031.

The Illinois Supreme Court reversed and held that defendant was not entitled to a jury instruction on entrapment by an agent of a government officer because the evidence did not show that Ruschinski, the alleged agent of a government officer (i.e., Bjankini), acted for the purpose of obtaining evidence to lead to the prosecution of defendant. (Wielgos, 142 Ill. 2d 133, 568 N.E.2d 861.) Thus, the supreme court held that the trial court had properly refused to instruct the jury on entrapment by an agent. The supreme court then remanded the cause for consideration of the issues which were raised but not reached in defendant’s appeal to this court.

We initially address defendant’s contention that the State violated discovery rules by failing to tender, in discovery, statements that were made by defendant following his arrest and that were admitted into evidence during the testimony of a State witness, Officer Rafael Tovar. We find no reversible error with respect to the discovery rule regarding disclosure of oral statements.

Defendant is entitled to receive a summary of the oral statements which he made. Supreme Court Rule 412 provides that “the State shall *** disclose to defense counsel *** any written or recorded statements and the substance of any oral statements made by the accused.” (134 Ill. 2d R. 412(a)(ii).) This rule does not require that the prosecution reduce the substance of an oral statement to any kind of memoranda or form prior to presenting a witness to the statement. People v. Marek (1980), 92 Ill. App. 3d 746, 763, 415 N.E.2d 1230.

Officer Tovar was one of the agents involved in the arrest of defendant. The record reveals, and defendant does not dispute, that a copy of Tovar’s police report was tendered to defense counsel. Moreover, defense counsel interviewed Tovar before he testified.

Defendant now challenges the testimony of Tovar which relates to their conversation concerning how to care for defendant’s two-year-old daughter, who was present at the time of the arrest. Defendant was separated from his wife, had custody of their daughter and was living in his mother’s house. After asking defendant if there was someone in the area who could care for the child so she would not have to go to the police station, Tovar testified to the following conversation:

“He [defendant] said that there was no one at the house. His mother wouldn’t be home until later. I asked him if any of the neighbors could care for the child, because as he was aware, he was going to have to go with us. He said no. That he didn’t get along with any of the neighbors. So, I asked him about his — the child’s mother. He stated he’d rather not call her. *** He finally agreed to give me his wife’s phone number.”

Defendant objected to this testimony because Tovar’s police report did not include information that defendant did not get along with his neighbors or that he did not want his estranged wife to take their daughter.

Our review of Tovar’s police report and testimony leads us to conclude that the trial court properly denied defendant’s motion for a mistrial because Tovar’s report included substantially the same kind of information as his testimony. The report states in part that after defendant was placed under arrest, “Wielgos’s two (2) year old daughter was found outside the house, unattended and was then handed over to Wielgos[’] estranged wife as there was no one else at the house.” The discovery rule does not mandate a verbatim transcription of each oral statement uttered by defendant, but rather provides for disclosure of the substance of the oral statements.

The report clearly deals with the custodial disposition of defendant’s child. The statement that defendant was unenthusiastic about calling the child’s mother is reasonable on the part of defendant and not in any way prejudicial.

While the reference to defendant’s inability to get along with his neighbors might adversely reflect on him as a good neighbor, its failure to be included in the police report is also not prejudicial to defendant in light of the overwhelming evidence supporting the jury’s verdict. Moreover, defense counsel interviewed Officer Tovar before he testified at trial and there is no allegation that he gave testimony inconsistent with the information gleaned from that interview.

Next, defendant alleges 13 instances of prosecutorial misconduct which he asserts either improperly attacked defendant, his credibility, or the defense or misstated the law. We find that the challenged remarks do not warrant a reversal.

Defendant first complains that during the redirect examination of Officer Tovar, the State elicited testimony that defendant’s neighbors applauded when he was arrested.

The record reveals that the trial court sustained defense counsel’s objection and admonished the jury to disregard this comment. When a trial court promptly sustains an objection and instructs the jury to disregard an improper argument, any prejudicial effect caused by the improper statement is generally viewed as cured. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Spann (1981), 97 Ill. App. 3d 670, 422 N.E.2d 1051.) We find that any prejudice resulting from this comment was cured by the trial court’s prompt action.

Second, during the direct examination of defendant, the State, in its objection to one of defendant’s answers, said “is he [defendant] changing his answer now.”

Although this objection by the State followed an answer given by defendant which contradicted his prior response to the same question, the State ought not editorialize while stating an objection. However, it is well established that improper remarks do not constitute reversible error unless they result in substantial prejudice to the accused and each case must be decided on its own facts. (Baptist, 76 Ill. 2d at 29.) Given the facts in this case, defendant did not suffer substantial prejudice from the prosecutor’s objection.

Third, during cross-examination of defendant, the State said “so, a minute ago you were covering up what you knew.”

The record shows that this remark by the prosecutor came after defendant had given two different answers to the State’s question as to whether defendant did or did not know that cocaine was in the bag he picked up and transported to the drug deal. We find that the trial court properly overruled defendant’s objection to this statement. The obvious impact of inconsistent statements is that a contradiction exists. Moreover, we cannot find that the absence of the prosecutor’s remark would have changed the jury’s decision where defendant admitted that he participated in the drug transaction.

Fourth, during cross-examination of defendant, he denied participation in any prior drug transactions and the prosecutor commented “of course not.”

We find that any prejudice caused by this remark was cured because the trial court sustained defense counsel’s objection to this remark, ordered the remark stricken from the record, and admonished the jury to disregard it. Moreover, in rebuttal closing argument, the State expressly acknowledged that “we [the State] don’t have any evidence that he [defendant] sold drugs before this. If we did, we’d have presented it to you.”

The remaining nine prosecutorial comments challenged by defendant occurred during closing and rebuttal closing arguments. A prosecutor is allowed wide latitude in closing arguments. (People v. Davis (1982), 104 Ill. App. 3d 512, 516, 432 N.E.2d 1134.) A reviewing court will not disturb the trial court’s determination absent a clear abuse of discretion based upon the record as a whole and the arguments in their entirety. (People v. Perez (1983), 113 Ill. App. 3d 143, 149, 446 N.E.2d 1229.) Parties have the right to comment on the evidence, to draw any legitimate inferences from the evidence, and to make inferences even if detrimental to defendant. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) The test employed to determine the existence of reversible error is whether the improper remarks of the prosecutor in closing arguments were such that, without their having been made, the jury might have reached a different result. People v. Lewis (1990), 198 Ill. App. 3d 976, 982, 556 N.E.2d 697.

Defendant assigns error to the fact that in closing argument, the State argued that defendant “delivered cocaine and didn’t care who used it” and “didn’t care what kinds of problems someone else may have had.” Also, in rebuttal argument, the State argued that the jury should decide “if there were times when wool was pulled over your eyes and little gimmicks and advocacy tricks like having his [defendant’s] mother and friends testify.”

We find that the challenged remarks did not exceed the permissible boundaries of closing argument. Furthermore, the trial court sustained all objections to these comments and thus any possible prejudice was cured.

' Next defendant complains that in rebuttal argument, the State argued that the jury can decide that a witness “is a liar” if the witness “contradicted himself.” Defense counsel characterized these arguments as the equivalent of “calling the defendant a liar.”

We find that the trial court properly overruled defendant’s objection to these remarks. Defendant’s characterization of the State’s closing arguments as the equivalent of “calling the defendant a liar” is not supported by the record. The prosecutor merely told the jury that where a witness provides contradictory answers, the witness could be lying. Even if the State had specifically called defendant a liar, no error would be found because a defendant can be called a liar in argument where evidence of lying exists or reasonable inferences of lying can be drawn from the evidence. People v. Strange (1984), 125 Ill. App. 3d 43, 465 N.E.2d 616; People v. Wilson (1984), 123 Ill. App. 3d 798, 463 N.E.2d 890.

Defendant next complains that in rebuttal argument, the State referred to defendant as “little Stevie.”

We believe that this prosecutorial remark was disrespectful and improper but was not sufficient to turn the jury away from their sworn duty. As this court has recently stated, “we do not condone the prosecution’s use of derogatory references.” (Lewis, 198 Ill. App. 3d at 983 (the characterization of the defendant as a bully and thug did not constitute reversible error).) Such comments reflect adversely on the prosecution and are to be avoided.

Defendant also asserts that it was reversible error when, in rebuttal argument, the State argued that certain areas explored by the defense during his cross-examination of State’s witnesses were “something to get you off track about what this case is all about.”

We find that the trial court properly overruled defendant’s objection to this remark because this comment was within the permissible scope of closing argument.

Next, defendant contends that it was error when, in rebuttal argument, the State said that “millions of people may have suffered and maybe died as a result of” cocaine.

The record reveals that the trial court sustained defense counsel’s objection and ordered these remarks stricken from the record. Thus we find that any prejudice resulting from these remarks was cured.

Defendant also claims that the State committed reversible error in rebuttal argument when the prosecutor attempted to define reasonable doubt through an analogy to the existence of China. The prosecutor stated as follows:

“Now, the burden in this case is reasonable doubt, beyond a reasonable doubt. Not an impossible burden. Not any doubt. It’s not any doubt that you might think exists. I have a doubt that China exists, ladies and gentlemen. I have never been there. I don’t speak Chinese. But it’s not a reasonable doubt because you all know there is a China on the other side of the world.”

This court has held that no attempt to explain the meaning of reasonable doubt should be made because there is no better definition of reasonable doubt than the words themselves. (People v. Garcia (1981), 103 Ill. App. 3d 779, 785, 431 N.E.2d 1234 (“[i]t is improper for an attorney to attempt to define this concept [reasonable doubt]”); People v. Jenkins (1980), 89 Ill. App. 3d 395, 411 N.E.2d 1047.) In Jenkins, this court reversed and remanded a defendant’s conviction for aggravated battery because the trial judge orally tried to define reasonable doubt through an analogy to the amount of water in a glass. Subsequently, the prosecutor in Jenkins used the trial judge’s analogy in his closing argument.

We find that the State’s attempt to define reasonable doubt in this case is improper but does not constitute reversible error because the trial court promptly sustained defense counsel’s objection to these remarks and an appropriate instruction on reasonable doubt was given to the jury.

Defendant also assigns error to the fact that in closing argument, the State made several references to the “absence of force” involved in persuading defendant to make the drug sale, and, in rebuttal argument, the State argued that defendant was “caught red handed” and that entrapment is “known as the defense of desperation.”

We find that the trial court properly rejected defendant’s objections to these comments because these comments did not misstate the evidence or the law. Statements based on the evidence are not improper. (Weatherspoon, 63 Ill. App. 3d 315, 379 N.E.2d 847.) The facts of this case reveal that defendant was caught while engaging in a drug transaction and defendant admitted his guilt while asserting the entrapment defense.

The jury was instructed on the entrapment defense. We need not speculate on the propriety of the entrapment instruction which was given since the Illinois Supreme Court definitively held that it was proper. (Wielgos, 142 Ill. 2d 133, 568 N.E.2d 861.) Furthermore, we cannot find that the absence of the prosecutor’s remarks would have changed the jury’s decision where defendant admitted that he participated in the drug transaction.

' In light of the established principles and an examination of the challenged remarks in the record, we find that the prosecutor’s statements, when viewed in context and when considered individually and cumulatively, do not rise to the level of reversible error.

Judgment affirmed.

CERDA, P.J., and TULLY, J., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE WILLIAMS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3721
    Opinion filed October 9, 1991.
    Randolph N. Stone, Public Defender, of Chicago (Linda J. Seeley, Assistant Public Defender, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Judy L. DeAngelis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendant Andre Williams was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1) and sentenced to a term of 36 years’ imprisonment. Defendant alleges that (1) he is entitled to a new trial because the jury instructions given for the charges of murder and voluntary manslaughter did not accurately reflect the elements and burden of proof in those offenses; (2) his conviction should be reversed because the State did not prove beyond a reasonable doubt that he had no belief that he was in imminent danger of death or great bodily harm; (3) he is entitled to a new trial because the State repeatedly misstated the law as to self-defense and voluntary manslaughter in its arguments; (4) the sentence should be vacated because oral and written victim impact statements were introduced at the sentencing hearing; and (5) the sentence of 36 years’ imprisonment was excessive given the circumstances of the case. We reverse and remand for a new trial.

Robert “Andy” Leonard and Lawanda “Skeekie” Warren went to the comer of Douglas and Lawndale Avenues in Chicago, Illinois, to sell marijuana “laced with PCP” at approximately 4:30 p.m. on November 25, 1986. Warren testified that defendant’s nephew, Freddie “Smiley” Williams, approached her and stated that she could not sell marijuana to all of the potential customers on that corner because he also wanted to sell his marijuana. Warren told “Smiley” that she would sell her marijuana to anyone who wanted to purchase it.

Warren called over Leonard, who had been standing in an alley nearby talking to some people. Leonard approached “Smiley” and “Smiley” told him that he and Warren should take turns selling marijuana to customers. Leonard told “Smiley” that Warren was going to sell marijuana to anyone who asked for it. As the argument ensued, Leonard took off his jacket, hung it on the fence, and challenged “Smiley” to a fight.

Defendant came out of a nearby building and told Leonard to “Get off my nephew [‘Smiley’].” Leonard said something to defendant, who slapped him in the face "with an open hand. Leonard fell to the ground. As Leonard was getting up, defendant shot him. Leonard got up and staggered, and defendant shot him two or three more times. Defendant then turned and aimed the gun at Warren. Defendant pulled the trigger, but the gun did not fire. Defendant then walked away. When police arrived at the scene, they found Leonard lying facedown. He was not wearing a jacket, and neither a gun nor drugs were found at the scene. Defendant was arrested three days later in Harvey, Illinois.

Defendant testified that after he slapped Leonard, Leonard reached behind his hip as he stood up. Thinking that Leonard was reaching for a gun, defendant drew his gun and shot him. Defendant testified that he did not actually see a gun in Leonard’s hand or waistband, only that he thought Leonard was reaching for a gun.

The jury was given a self-defense instruction and Illinois Pattern Jury Instructions, Criminal, Nos. 7.02 and 7.06 (2d ed. 1981) (hereinafter IPI Criminal 2d), as to murder and voluntary manslaughter. The jury found defendant guilty of murder.

Defendant first contends that his conviction for murder should be reversed and the case remanded for a new trial because the jury was improperly instructed as to both murder and voluntary manslaughter. We agree. In People v. Reddick (1988), 123 Ill. 2d 184, 197, 526 N.E.2d 141, 146, the court held that IPI Criminal 2d Nos. 7.02 and 7.06, which set forth the burden of proof and elements of murder and voluntary manslaughter, were improper because they did not place upon the State the burden to disprove the existence of unreasonable belief in justification for use of deadly force in self-defense.

Recently in People v. Shields (1991), 143 Ill. 2d 435, 446-47, 575 N.E.2d 538, 543, the court held that jury instruction errors such as those found in Reddick do not mandate automatic reversal and may constitute harmless error if it can be shown that the error was harmless beyond a reasonable doubt. Given the facts of this case, however, we cannot say beyond a reasonable doubt that if the jury had been properly instructed as to the State’s burden of proof it would not have concluded that defendant unreasonably believed that the use of deadly force was necessary to prevent death or serious harm to himself. The jury instruction errors were therefore not harmless.

In addition, we conclude that the State introduced sufficient evidence to prove beyond a reasonable doubt that defendant had no belief that he was in imminent danger of death or great bodily harm and that the defendant was guilty beyond a reasonable doubt. Thus, these remain jury questions, to be submitted to a properly instructed jury. (See Reddick, 123 Ill. 2d at 201, 256 N.E.2d at 148; People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.) Under the circumstances, we do not address the other issues raised by defendant.

Accordingly, the judgment of conviction is reversed and the case is remanded for a new trial.

Reversed and remanded.

CERDA, P.J., and GREIMAN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEOFFREY FREEMAN, Defendant-Appellant.
    First District (3rd Division)
    Nos. 1—89—2414, 1—89—2500 cons.
    Opinion filed October 9, 1991.

      Jenner & Block, of Chicago (Joel T. Pelz, Glenn E. Heilizer, and Caesar A. Tabet, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Bonnie Meyer Sloan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Defendant, Geoffrey Freeman, was convicted of the murder and armed robbery of 71-year-old Madeline Mullenix and was sentenced to natural life imprisonment. This court upheld the jury conviction (People v. Freeman (1987), 162 Ill. App. 3d 1080, 516 N.E.2d 440 (hereinafter Freeman I)), but found prima facie discrimination by the prosecution’s exercise of peremptory challenges during jury selection and remanded the matter to the circuit court of Cook County for a Batson hearing. Batson v. Kentucky (1986), 476 U.S. 79, 93, 90 L. Ed. 2d 69, 85, 106 S. Ct. 1712, 1722.

The judge who presided over the trial died shortly thereafter and the Batson hearing was assigned to another judge (hereinafter the hearing judge).

At the Batson hearing, the hearing judge found the State provided racially neutral explanations for the exclusion of the 13 jurors in question and affirmed the conviction.

For the reasons set forth below, this matter is remanded to the trial court for a new Batson hearing.

In Freeman I when we remanded the case for a Batson hearing, we gave the State an opportunity to come forward with neutral explanations for the exclusion of certain black prospective jurors, and we said:

“If the trial court decides that the State has come forward with a neutral explanation for the exercise of its peremptory challenges excluding the black prospective jurors, and the neutral explanation is sufficient to rebut defendant’s prima facie case of purposeful racial discrimination, then defendant’s conviction will stand.” Freeman, 162 Ill. App. 3d at 1094.

At the commencement of the Batson hearing, the hearing judge ruled that all witnesses at the Batson hearing, including the trial prosecutors, would be placed under oath and subject to cross-examination and determined that a mere statement by the trial prosecutors would not overcome the prima facie discrimination determined by us in Freeman I.

Immediately thereafter, July 16, 1988, the State filed a motion for a supervisory order in the Illinois Supreme Court requesting that the hearing judge’s requirements of testimony under oath by the prosecutor be vacated. People v. Freeman (May 26, 1989), No. 67180, unpublished supervisory order.

The unpublished supervisory order of May 26, 1989, obviated the requirement of the prosecutors being sworn and subject to cross-examination regarding their use of peremptory challenges. The Illinois Supreme Court first decided this issue in People v. Young on February 22, 1989; the rehearing of that case being denied on May 26, 1989, the day the unpublished supervisory order in this case was issued. Given the narrow time frame, it is understandable that the hearing judge may not have been completely familiar with the case. The supervisory order might be considered the precursor of later supreme court cases which make it clear that prosecutors would not be under oath and subject to cross-examination. People v. Hope (1990), 137 Ill. 2d 430, 560 N.E.2d 849; People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107; People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.

The Illinois Supreme Court in Young observed that the United States Supreme Court in Batson refrained from making prosecutors witnesses in a trial within a trial. Batson left the specific procedures for conducting a hearing to State courts.

Since that time, Illinois has provided an even more restrictive setting for Batson hearings. (Hope, 137 Ill. 2d 430, 560 N.E.2d 849.) Criminal evidentiary procedures such as those set out in Supreme Court Rule 412 (134 Ill. 2d R. 412) are not applied mandatorily to post-conviction Batson hearings. Hope, 137 Ill. 2d at 484.

At the Batson hearing, the prosecutor gave explanations for the exclusion of each of the 13 African-Americans excluded from the Freeman I jury. The prosecutor provided various explanations, some of which were duplicative with respect to these members of the venire.

After examination of the transcript of the hearing and the trial, the hearing judge concluded: “the record does not contain a reasonable explanation for the use of at least four of the [State’s] peremptory challenges” and that “normally, the assessment of a witness’s credibility, is essential to the fact-finding process. In this case the prosecutor was not a witness but an officer of the court and an advocate for his own cause.”

The hearing judge went on to state “the court does not find [the prosecutor’s] explanations to be truthful since he refused to take an oath and to be subject to cross-examination *** the [supervisory [o]rder requires me to evaluate the unsworn statements of the prosecutor. But, in America trial judges are not commanded to believe anyone.”

The trial court also believed that the supervisory order prohibited cross-examination of the trial prosecutors and the offering of rebuttal testimony and that he was required to accept the State’s facially neutral explanations.

Thereafter, the trial court denied the defendant’s motion for a new trial.

The hearing judge was required to sail on somewhat uncharted waters. The trial court had only the Young case as a guideline since Hope and People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357, had yet to be decided. These cases would have been instructive for the hearing judge in determining the nature of the hearing over which he was about to preside.

At best it is difficult for a reviewing court to completely understand the nature of the hearing judge’s ruling. On the one hand, he finds the State’s explanations were not credible and that the State apparently did not bring forth sufficient evidence to establish appropriate explanations for the peremptory challenges. On the other hand, the hearing judge ultimately concluded that he was required to accept the State’s facially neutral Batson explanations as conclusive and declined to weigh the credibility of the State’s witnesses in providing explanations.

The hearing judge observed that the prosecutor’s Batson statement was “substantially supported” by the record but determined “that in view of the restrictions imposed by the supervisory order” he could not say whether he believed the prosecutor. From this, we can only conclude that the hearing judge provided an overly restrictive interpretation of the supervisory order of May 26,1989.

This court recently held in People v. Kindelan (1991), 213 Ill. App. 3d 548, that the State’s burden of proving neutrality is “grounded in [the] credibility” that the trial judge accords the prosecutor. The hearing judge in the case at bar found the statements were facially neutral as compared to the record, but did not find them “truthful” since the prosecutor declined to be sworn. It should be clear that Kindelan requires the hearing judge at a Batson hearing to weigh the credibility of the prosecutor. Requiring the prosecutor’s oath ought not to be the cutting edge for this task.

Once a defendant has established a prima facie case of discrimination, the State has the burden of providing a race-neutral explanation for each peremptory challenge to which defendant objects. (Batson, 476 U.S. at 93, 90 L. Ed. 2d at 85, 106 S. Ct. at 1722.) The State’s explanations must be clear, reasonably specific, legitimate and nonracial. (Hope, 137 Ill. 2d at 467.) They must be more than a mere assertion that the prosecution acted in good faith or without discriminatory motive. Harris, 129 Ill. 2d at 174.

The trial court must make a sincere and reasoned attempt to evaluate the State’s explanations (Hope, 137 Ill. 2d at 467) and must assess the genuineness of the State’s assertions to determine if they are legitimate and, in fact, race-neutral. People v. Baisten (1990), 203 Ill. App. 3d 64, 77, 560 N.E.2d 1060.

Based on this record, we are unable to determine whether the hearing judge appropriately weighed the evidence in determining whether there was a Batson violation. Accordingly, we believe that the hearing judge should be afforded another opportunity to examine the Batson allegations and we will therefore remand this matter to the trial court for a new Batson hearing.

Three additional matters remain for our consideration: (i) defendant’s right to propound interrogatories; (ii) defendant’s right to the discovery of certain documents; and (iii) defendant’s right to provide rebuttal testimony.

As to the first issue, we agree with the hearing judge’s determination that the supervisory order of May 26, 1989, precluded the use of interrogatories directed at the State. Although the order is silent with respect to interrogatories, the spirit of the court’s order seems clear, and defendant ought not to be allowed to circumvent the prohibition against cross-examination by interrogation through interrogatories.

Illinois decisions have made it clear that the Illinois Supreme Court expects the Batson hearings to more closely follow the format of a preliminary hearing rather than a full-blown criminal trial. In Mack, the court rejected the notion of expanded trial procedures or procedural safeguards when the Batson hearing was held before a judge different than the trial judge. Mack, 128 Ill. 2d at 252.

As to the second issue, nothing in the supervisory order precludes initiation of reasonable discovery by the defendant. As in all cases, the court has control of that discovery process and can determine the reasonableness of the request. If material contained in training manuals or policies of the State’s Attorney would add to the court’s finding of prima facie discrimination and increase the State’s burden, the trial court should be able to consider such matters. It will assist in leading to a just result in ensuring that defendant had a fair trial by a jury appropriately selected.

Although Mack establishes the kinds of limitations the court wishes to impose on Batson hearings, it does not expressly rule upon the propriety of a discovery request. The defendant ought to be able to determine whether the questions asked of veniremen and the exercise of peremptory challenges are part of a scheme or a plan to limit the minority members of a jury before which defendant will be tried.

Mack did address the issue of discovery of the prosecutor’s notes. Because a prosecutor’s notes are protected from disclosure under the work-product doctrine unless they contain material favorable to the defense under Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, the notes in Mack were inspected in camera by the hearing judge. The judge found that the notes did not contain material favorable to the defendant and denied the motion to compel production. (Mack, 128 Ill. 2d at 247.) Here, the hearing judge inspected the prosecutor’s notes in camera and determined that the notes supported the prosecutor’s explanations. The hearing judge concluded that there was no material favorable to defendant and that discovery of the notes should be denied. On that basis, we agree.

As to the third issue, defendant sought to introduce testimony of excluded jurors to rebut the State’s explanations for its exercise of peremptory challenges. The hearing judge excluded the rebuttal testimony of challenged jurors, stating:

“I think that [testimony] would go beyond the scope of the Bat-son decision. Particularly, since the Appellate Court has already found there is prima facie evidence of discrimination in the exclusion of these jurors. The Court will not permit excluded jurors to be called at this limited hearing.”

Generally, a defendant should be afforded the opportunity to rebut the prosecutor’s Batson explanations for the exercise of peremptory challenges. (Harris, 129 Ill. 2d at 177; Young, 128 Ill. 2d at 27.) It is the duty of the hearing judge to determine whether the State’s explanations are race-neutral, and it is the judge’s decision whether certain rebuttal testimony would be helpful to his determination.

In Young, the Illinois Supreme Court held that the trial court properly refused to admit rebuttal testimony of defendant and his trial counsel regarding a juror’s responses since the hearing judge had also presided over the voir dire and had observed the demeanor of the prospective jurors directly. Young, 128 Ill. 2d at 27-28.

In Harris, the court clearly set out the format for a Batson hearing:

“[I]n Batson, the Court stated that once a defendant makes out a prima facie case of discrimination, the prosecutor need only ‘articulate a neutral explanation related to the particular case to be tried.’ [Citation.] The defendant may then attempt to rebut the prosecution’s explanation as being pretextual. [Citation.] At the conclusion of the hearing, the trial court has the duty to weigh the evidence and ‘determine if the defendant has established purposeful discrimination.’ ” (Emphasis added.) Harris, 129 Ill. 2d at 177.

The court specifically authorizes rebuttal evidence by the defense and commands the hearing judge to carefully weigh the evidence. Harris does not limit the kind of rebuttal evidence which can be offered. In the instant case, the defendant sought to offer testimony of excluded jurors, and under Young and Harris, a hearing judge may properly find their testimony helpful in determining whether the State’s race-neutral explanations are pretextual. Harris, 129 Ill. 2d at 177; Young, 128 Ill. 2d at 27.

Accordingly, at the new Batson hearing the defendant shall be permitted to offer testimony of excluded jurors for the purpose of demonstrating that the State’s race-neutral explanations are pretextual.

Finally, we reiterate the instruction given the trial court when we initially reviewed defendant’s case in Freeman I and again direct that the trial court enter sentence on defendant’s armed robbery conviction if the State prevails at a new Batson hearing. If the defendant prevails at the hearing, this defendant shall be afforded a new trial on armed robbery as well as murder. See People v. Scott (1977), 69 Ill. 2d 85, 87-88, 370 N.E.2d 540; People v. Lilly (1974), 56 Ill. 2d 493, 495-96, 309 N.E.2d 1 (which allow us to pass upon the armed robbery conviction for which no sentence has been entered).

This matter is remanded for a new Batson hearing and for entry of a sentence upon defendant’s conviction for armed robbery.

Remanded with directions.

RIZZI and WHITE, JJ., concur.

      The Illinois Supreme Court initially denied the State’s motion for a supervisory order on August 19, 1988, but vacated that order on August 25, 1988, on its own motion and continued the State’s motion.

       Justice White participated in this opinion prior to his retirement.


text:
    ABRON FENDERSON, Plaintiff-Appellant, v. ATHEY PRODUCTS CORPORATION, Kolman Division, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—0680
    Opinion filed October 9, 1991.

      James L. Farina and J. Dillon Hoey, both of Chicago, for appellant.
    Locke E. Bowman III, of Silets & Martin, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Abron Fenderson (Fenderson) brought this personal injury action against defendant Athey Products Corporation, Kolman Division (Athey), to recover damages incurred as a result of negligence in the design and manufacture of a conveyer manufactured by Kolman Manufacturing Company (Kolman). Athey filed a motion for summary judgment on the basis that it is not liable for Fender-son’s injuries because it did not design or manufacture the conveyer, and it did not assume any of Kolman’s liabilities not specifically listed on Kolman’s balance sheet when it had purchased substantially all of Kolman’s assets. Fenderson filed a motion for partial summary judgment on the basis that Athey’s purchase of Kolman’s assets constituted a de facto merger and that Athey assumed all of Kolman’s liabilities, including personal injury claims. The trial court granted summary judgment in favor of Athey. We reverse the summary judgment in favor of Athey, enter partial summary judgment in favor of Fenderson, and remand for further proceedings.

In October 1964, Athey entered into an asset purchase agreement with Kolman whereby Athey agreed to purchase substantially all of Kolman’s assets, including land, buildings, fixtures, machinery, inventory, cash and receivables for a purchase price which consisted of cash, a nine-year interest-bearing corporate note, and shares of Athey’s common stock. The agreement provided that only those liabilities listed on Kolman’s balance sheet as of September 30, 1964, would be assumed by Athey, with the exception of Federal income taxes.

On September 22, 1984, Fenderson’s right arm was severely injured when his clothes became caught in a conveyor manufactured by Kolman in 1961. On June 9, 1986, Fenderson filed a complaint in the circuit court naming solely Kolman as a defendant. The complaint and summons were served upon an agent of Athey. Athey filed an appearance, although Kolman had not been a legal entity for over 20 years. Subsequently, the complaint was amended to name Athey as the defendant, and the motions for summary judgment and partial summary judgment were filed.

The critical issue on appeal involves successor corporate liability. The general rule in Illinois is that when a company sells its assets to another company, the purchasing company is not liable for the debts and liabilities of the purchased company merely by reason of its succession. (Green v. Firestone Tire & Rubber Co. (1984), 122 Ill. App. 3d 204, 209, 460 N.E.2d 895, 898.) Several recognized exceptions exist, however, which will impute liability to the purchasing company, including:

(1) Where there has been an express or implied agreement of assumption;
(2) Where the transaction amounts to a consolidation or merger, including a de facto merger, of the purchaser and seller corporations;
(3) Where the purchaser is merely a continuation of the seller; or
(4) Where the transaction is for the fraudulent purpose of escaping liability for the seller’s obligations.

See Manh Hung Nguyen v. Johnson Machine & Press Corp. (1982), 104 Ill. App. 3d 1141, 1143, 433 N.E.2d 1104, 1106.

Here, Fenderson contends that the sale and purchase transaction between Kolman and Athey was a de facto merger. Almost every jurisdiction in the United States, including Illinois, has applied the same four factors to determine whether a de facto merger has occurred. (See Kramer v. Weedhopper of Utah, Inc. (1990), 204 Ill. App. 3d 469, 562 N.E.2d 271; McCarthy v. Litton Industries, Inc. (1991), 410 Mass. 15, 570 N.E.2d 1008; Howard v. APAC-Georgia, Inc. (1989), 192 Ga. App. 49, 383 S.E.2d 617; Commonwealth v. Lavelle (1989), 382 Pa. Super. 356, 555 A.2d 218; Grant-Howard Associates v. General Housewares Corp. (1982), 115 Misc. 2d 704, 454 N.Y.S.2d 521, rev’d on other grounds (1984), 63 N.Y.2d 291, 472 N.E.2d 1, 482 N.Y.S.2d 225; Powers v. Baker-Perkins, Inc. (1979), 92 Mich. App. 645, 285 N.W.2d 402; Western Resources Life Insurance Co. v. Gerhardt (Tex. Civ. App. 1977), 553 S.W.2d 783; McKee v. Harris-Seybold Co. (1970), 109 N.J. Super. 555, 264 A.2d 98.) A de facto merger occurs when the following criteria are present:

(1) The seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible;
(2) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller;
(3) There is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation; and
(4) There is a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operation.

See Kramer, 204 Ill. App. 3d at 475-76, 562 N.E.2d at 275.

In the present case, the first criterion to establish a de facto merger was plainly met. Kolman and Athey entered into the asset purchase agreement on October 1, 1964, and the transaction was consummated on November 13, 1964. On February 22, 1965, less than four months after the asset purchase transaction was completed, Kolman was officially dissolved. Thus, Kolman ceased its ordinary business operations and dissolved as soon as legally and practically possible.

The second criterion to establish a de facto merger was likewise met. The purchase agreement provided for Athey to acquire the assets of Kolman “subject to all the liabilities of Kolman, except for federal income taxes.” Athey does not dispute that it assumed Kolman’s liabilities and obligations existing on Kolman’s balance sheet as of September 30, 1964, or that Kolman’s operations continued uninterrupted after the asset purchase transaction. It is therefore clear that Athey assumed Kolman’s liabilities and obligations necessary for the uninterrupted continuation of the normal business operations of Kolman.

The third criterion involves continuity of ownership. Continuity of ownership has been held by other jurisdictions to be the most important factor in determining whether successor corporate liability will be imposed upon a purchasing corporation. (See Wessinger v. Vetter Corp. (D. Kan. 1987), 685 F. Supp. 769, 773 (applying Illinois law); Western Resources Life Insurance Co. v. Gerhardt (Tex. Civ. App. 1977), 553 S.W.2d 783, 786-87.) Moreover, generally courts will construe an asset purchase transaction to be a de facto merger if the acquiring corporation issues shares of stock to the acquired company in exchange for the acquired company’s assets. (See Western Resources Life Insurance Co., 553 S.W.2d at 787; but cf. Powers v. Baker-Perkins, Inc. (1979), 92 Mich. App. 645, 285 N.W.2d 402 (de facto merger established even though no exchange of stock).) In the present case, however, Athey argues that the asset purchase transaction with Kolman was primarily a cash purchase of assets, and that the shares of stock of Athey consisted of only a “secondary and relatively small portion of the consideration received by Kolman for its assets.” We disagree.

A dissection of the transaction reveals that the purchase was primarily an exchange of Kolman’s assets for defendant’s stock and a long-term note directly tied to defendant’s financial future. The transaction required defendant to pay Kolman $444,000 in cash at closing on November 13, 1964, an additional $200,000 in cash on February 1, 1965, 40,000 shares of defendant’s stock valued at between $10.50 to $12.50 per share, and a nine-year interest-bearing note for $850,000 in exchange for all of Kolman’s assets existing on Kolman’s balance sheet as of September 30, 1964.

Kolman’s balance sheet reveals that Kolman’s cash on hand of $465,380 and guaranteed receivables of $320,976 were being transferred from Kolman to Athey as part of the asset purchase transaction. In the event that a portion of the receivables became uncollectible, that amount would be immediately decreased from the amount owed to Kolman. Under the circumstances, Athey paid $644,000 cash to Kolman, and in return Kolman exchanged bank accounts and guaranteed receivables to Athey in the amount of $786,356. After eliminating the cash “swap” between the parties, the reality of the transaction is that Kolman is selling its inventory, land, buildings, machinery and goodwill, and other miscellaneous assets to Athey in exchange for Athey’s assumption of Kolman’s liabilities then existing on the balance sheet, a long-term note valued at $850,000 and stock valued between $420,000 to $500,000. Athey’s stock traded at prices between $11.125 and $12.50 per share during the executory period prior to the closing of the transaction. Athey’s 1964 annual report includes a statement by an independent accountant that the market value of Athey’s stock subsequent to the issue of the additional 40,000 shares to Kolman was $10.50 per share as of December 31, 1964. Thus, the value of the acquired shares varies depending upon whether the $10.50, $11.125 or $12.50 value per share is used.

Upon a consideration of all the circumstances, we first reject Athey’s conclusion that cash rather than stock was the primary consideration for the purchased assets. Instead, we conclude that the transaction was primarily an exchange of Kolman’s assets for shares of Athey’s stock and a long-term note directly tied to the financial well-being of Athey. Secondly, we also reject Athey’s contention that the stock of the acquiring company must be the primary consideration of the transaction to satisfy the third criterion of a de facto merger. Athey cites McKee v. Harris-Seybold Co. (1970), 109 N.J. Super. 555, 264 A.2d 98, where the court held that there was no continuity of ownership because the 5,500 shares of the purchasing company’s stock paid to the seller company constituted only token consideration when the purchase price for the seller company’s assets included $2 million in cash. While it is true that stock cannot be added to the transaction as token consideration in order to satisfy the continuity of ownership criterion, this does not mean that all or even most of the purchase price of a transaction must be paid in shares of stock of the purchasing company in order to have a de facto merger. Here, based on the transfer of over $400,000 of defendant’s stock and an $850,000 long-term corporate note, we conclude that there is sufficient continuity of ownership between Kolman and Athey after the asset purchase transaction to satisfy the third criterion for a defacto merger.

The fourth criterion to establish a de facto merger is that there must be a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations. In the present case, it is undisputed that Kolman’s assets and its business operations remained at their previous location following the asset purchase. Also, after the asset purchase, the same products continued to be manufactured under the Kolman name at the same location with substantially the same work force. Athey argues, however, that because none of the officers of Kolman other than its president, John L. Healy, became associated with Athey, and because Athey’s board of directors remained under the same control as it had been prior to the acquisition of Kolman, there is not sufficient continuity of management as required to fulfill the continuity of enterprise criterion. We disagree.

The failure of Kolman’s officers, with the exception of its president, to become associated with Athey after the asset purchase agreement is not an unexpected result of any business acquisition. When two separate corporate entities join together as one, there is likely to be a consolidation of management in order to prevent duplication of the same managerial, operational and supervisory functions. Thus, the transaction here must be analyzed and evaluated in its entirety with this business reality in mind. Moreover, de facto merger is a judicially created equity principle for the purpose of avoiding injustices. The application of the de facto merger principle must therefore be liberally construed in favor of allowing a remedy for a wrongfully caused injury. See In re Acushnet River & New Bedford Harbor Proceedings (D. Mass. 1989), 712 F. Supp. 1010; Bud Antle, Inc. v. Eastern Foods, Inc. (11th Cir. 1985), 758 F.2d 1451; Lumbard v. Maglia, Inc. (S.D.N.Y. 1985), 621 F. Supp. 1529; Menacho v. Adamson United Co. (D.N.J. 1976), 420 F. Supp. 128.

In the present case, Kolman’s president, John L. Healy, became a member of Athey’s board of directors and Kolman’s business operations remained substantially unchanged for a long period after the asset purchase transaction. Under these facts and all the salient circumstances that we have mentioned, we conclude that the continuity of enterprise criterion for a defacto merger was met.

In addition, in determining whether a de facto merger exists in particular cases, courts must widen the scope of their focus from specifics to the broad spectrum of circumstances that are involved, so that parties are not allowed to use sheer transaction machinations to avoid liability for wrongfully caused injuries. Here, looking at the broad spectrum of the circumstances, it is clear that Athey’s acquisition of Kolman’s assets constitutes a de facto merger notwithstanding any specifics that may indicate otherwise.

Accordingly, we hold that there was a de facto merger between Kolman and Athey, and that Athey may be liable for negligence in the design and manufacture of the conveyor manufactured by Kolman. The summary judgment in favor of Athey is therefore reversed and partial summary judgment is entered in favor of Fenderson and against Athey on the issue of the existence of a de facto merger between Kolman and Athey. The case is remanded for further proceedings.

Reversed and remanded.

CERDA, P.J., and GREIMAN, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN BURKE, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—2530
    Opinion filed October 10, 1991.

      Ramsell & Associates, of Schaumburg (Donald J. Ramsell, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Shauna Boliker, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant Martin Burke appeals from an order of the trial court denying his petition to rescind a statutory suspension of his driving privileges. On appeal he contends that (1) the trial court failed to hold the statutory summary suspension hearing within 30 days of the request; (2) the trial court erred in continuing the summary suspension where the sworn report failed to establish that defendant was warned of his implied-consent rights; (3) the trial court erred in relying upon the testimony of the arresting officer in finding reasonable grounds to establish that defendant was driving under the influence of alcohol or drugs; and (4) the trial court erred by not rescinding the summary suspension where it was not based on a proper uniform traffic ticket as required by section 11—501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1).

On December 27, 1987, defendant was arrested and charged with driving “under the influence of alcohol and/or drugs.” The sworn law enforcement report indicated that his driver’s license was surrendered and his driver’s privileges would be suspended effective February 11, 1988, due to his failure to submit to a chemical test.

On January 20, 1988, all parties appeared before the court, and the State requested a continuance because the arresting officer, Illinois State Trooper Kim Brooks, who had been subpoened to testify, was unable to attend due to an injury sustained on duty that day. The court continued the matter to January 29, 1988. At that time, the State told the court that the officer was still injured and requested a continuance. The court denied the State’s motion, and the State agreed to proceed based upon the sworn report of the officer while the defendant relied upon his own testimony. The court then con-eluded that (1) the summary suspension would be sustained; (2) defendant’s request for rescission based upon the arresting officer’s failure to appear would be denied; and (3) the summary suspension would be stayed pending appeal.

On February 16, 1988, defendant filed a motion to reconsider denial of the summary suspension or for a new hearing. On February 24, 1988, the court continued the post-hearing motions to April 14, 1988. At that time, the court granted defendant’s motion to reconsider and set a new hearing on the petition to rescind the statutory summary suspension.

On May 4, 1988, the case was reassigned to a different judge at defendant’s request and the hearing proceeded. The defense presented two witnesses: defendant and Jeff Hockensmith, the passenger in defendant’s car at the time of the stop in this case.

Hockensmith was a long-time friend of defendant, and he stated that between 9:30 p.m. and about 1:15 a.m. defendant was at his house in Park Ridge, where they ate pizza but did not consume alcoholic beverages. About 1:15 a.m., they left and drove to the Beaumont Tavern, located at Armitage and Halsted in Chicago, where they met two other friends and drank about two or three glasses of beer until about 2:30 to 2:45 a.m. About 3 a.m. they left the tavern, and defendant began to drive him home on 1-90. When he told defendant to exit at Cumberland Avenue, defendant quickly moved from the center lane to the right lane toward the exit. After defendant exited the expressway, the officer stopped defendant, requested defendant’s driver’s license and asked him to exit the car. Defendant asked her if she was arresting him, and she answered that she was for drunken driving. He opined that defendant was not under the influence of drugs or alcohol that night.

Defendant testified that between 1:15 a.m. and 2:45 a.m., he consumed about two or three eight-ounce glasses of beer. He denied consuming any drugs. He stated that when his friend told him to exit the expressway at Cumberland, he moved from the center lane to the right lane for about 50 feet before exiting onto Higgins Road. At that time, he noticed flashing lights behind him so he pulled over to the curb. When the officer approached his car, she requested his driver’s license. He reached into the compartment between the two seats and handed it to her from his wallet. She then asked him to step out of his car, and he responded that on his attorney’s advice he would not get out of the car unless he was under arrest. She again asked him the same question, and he asked her if he was under arrest. She then answered that he was under arrest for drunken driving. Defendant denied that he was told why she wanted him to exit the vehicle before he was arrested. Defendant denied that he was ever requested or ever refused to take a breathalyzer test.

Officer Brooks testified that when she first saw defendant’s car in the left lane on the expressway near the Lawrence Avenue exit in front of her, the vehicle was not staying in its left lane. She stated that it moved on and off the roadway and almost struck the median barrier. She then saw the car move into the middle lane, over to the right lane and back to the middle lane without signaling. Near the Harlem Avenue exit defendant’s vehicle passed another car almost hitting it as it did so. When the car exited at Cumberland, she activated her emergency lights and siren. After her backup unit arrived 30 seconds later, she approached defendant’s car to request defendant’s driver’s license.

When defendant opened his window, Officer Brooks was about V-k feet away. She smelled a very strong odor of alcohol on his breath and observed that his eyes were very glassy. His speech was very slurred and she was not able to understand him easily. When she asked him to get out of the car so she could administer a field sobriety test, he refused. He asked her if he was going to be placed under arrest because his lawyer advised him not to step out of the car unless he was under arrest. She then explained to him that she was going to do a field sobriety test to determine if he was going to be arrested. When he refused, she told him he was going to be placed under arrest for drunken driving and to step out of the car. As defendant started to walk toward the police car, he used her car to balance himself. The officer told him to come back to the rear of his car, where she again told him that he was under arrest. She handcuffed him, searched him and placed him inside. She read him the statutory warnings to motorists and asked him if he would submit to a breathalyzer test. He refused all of the tests so she took him to the police station.

In issuing its ruling, the trial court observed that the obvious mistake as to the date that the test was refused in the law enforcement sworn report was a formal defect which was cured by the testimony of the officer. The ticket indicates that the test was refused at 4:22 a.m. on November 27, 1987, when the arrest was made on December 27, 1987. The court further concluded that although the ticket charged defendant with “driving while under the influence of alcohol and/or drugs,” that does not in any way alleviate that the warning must be given to someone driving under the influence of alcohol. Again, the court concluded that the dual charge was a formal defect which was cured by the testimony, which related solely to the consumption of alcohol. The court concluded that at the time the officer ordered defendant out of the car she had reasonable grounds to believe that he had been driving under the influence of alcohol.

Initially, defendant contends that the hearing on the petition to rescind the summary suspension was not held within 30 days of the date of filing the petition. The pertinent statutory provision is section 2—118.1(b) of the Hlinois Vehicle Code, and it provides:

“Upon the notice of statutory summary suspension served under Section 11—501.1, the person may make a written request for a judicial hearing in the circuit court of venue. *** Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11—501, or a similar provision of a local ordinance, the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension.” Ill. Rev. Stat. 1987, ch. 95½, par. 2-118.1(b).

The officer arrested defendant on December 27, 1987, for driving under the influence of alcohol and/or drugs. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(2).) The arresting officer immediately notified defendant that his court date was January 20, 1988, and his driving privileges would be suspended for a minimum of six months. The Hlinois Secretary of State sent a confirmation of the suspension and specified that it would become effective on February 11, 1988, the forty-sixth day following his arrest. On December 30, 1987, defendant filed a petition requesting a hearing to rescind the statutory summary suspension of his driving privileges. (Ill. Rev. Stat. 1987, ch. 95½, par. 2—118.1.) On January 20, 1988, both parties appeared in court, and the State requested a continuance because the arresting officer was injured and unable to be present. The court continued the matter to January 29, 1988. At that time, the State again requested a continuance due to the officer’s inability to be present due to the same injury. The State’s request was denied, and the State agreed to proceed based upon the sworn law enforcement report.

Clearly, the trial court held the hearing within the time frame set forth in section 11—501.1. The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday, then it shall also be excluded. (Ill. Rev. Stat. 1987, ch. 1, par. 1012.) In computing the time from December 30, 1987, to January 29, 1988, we have determined that the hearing was timely held as it took place on the thirtieth day from receipt of the written request as defense counsel conceded. Furthermore, the hearing was also timely conducted after the first appearance date on the uniform traffic ticket, which was January 20,1988.

Next, defendant contends that the court should have rescinded the summary suspension based upon the arresting officer’s failure to respond to a subpoena. In a summary suspension hearing, the burden is on the motorist to prove a prima facie case for rescission. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) By filing his petition to rescind, defendant assumed the burden of gaining rescission of his statutory suspension. Defendant never subpoened the arresting officer in this case; however, defendant argues that he was denied his statutory rights. Consistent with his petition, defendant sought a hearing on his summary suspension but he did nothing further to assume the burden of proceeding in the case. If the arresting officer failed to appear in answer to his subpoena, defendant could have sought a continuance or sought to have the officer held in contempt for failure to appear (People v. Moony (1990), 206 Ill. App. 3d 422, 564 N.E.2d 192), which did not occur in the present case.

Section 2—118.1(b) of the Illinois Vehicle Code makes clear that the State is permitted to use the arresting officer’s sworn report to support the summary suspension of a defendant’s driver’s license provided that the arresting officer is not under subpoena of defendant to appear. (People v. Clayton (1990), 201 Ill. App. 3d 163, 559 N.E.2d 300.) Clearly, here, defendant did not subpoena the arresting officer, and the State was properly permitted to proceed on the officer’s sworn report.

Next, defendant contends that the trial court erred in continuing the summary suspension when the sworn report failed to establish that he was properly admonished of his implied-consent rights. Defendant contends that due to the fact that the sworn report indicated he had been given these rights on November 27 when the date of arrest was December 27, he was not requested to submit to chemical testing subsequent to his arrest as required by law.

In People v. Badoud (1988), 122 Ill. 2d 50, 521 N.E.2d 884, the officer’s report was not verified as required by section 11—501.1(d) of the Illinois Vehicle Code. The court held that the State should be given an opportunity to verify the report by the arresting officer before holding a new hearing to which defendant is entitled. In People v. Fint (1989), 183 Ill. App. 3d 284, 538 N.E.2d 1348, the court followed the reasoning that the State should be given an opportunity to make a verified amendment if it can do so. In the case at bar, although the State did not formally request to make a verified amendment, the State did present the officer to testify under oath. She stated that she requested defendant to exit the vehicle so that she could administer a field sobriety test. He refused, claiming that he would not step out of the car unless he was under arrest. She explained to him that she needed to do a field sobriety test to determine if he was going to be arrested. When he refused, she told him he was under arrest for driving under the influence. Clearly, the error as to the date as to when he was given his implied-consent rights was on December 27, 1987, the date he was arrested. Nothing at all in the testimony indicates that the November date was anything other than a scrivener’s error.

Next, defendant contends that the evidence was insufficient to establish that the arresting officer had reasonable grounds to believe he was driving under the influence of alcohol. Defendant does not cite a single case in his brief to support his contention. Defendant merely argues that his own testimony and that of his witness demonstrate that defendant was not under the influence of alcohol, that his driving was not impaired by alcohol and that he was not weaving as he traveled upon the public highway. Additionally, he argues that the testimony of the arresting officer lacked credibility.

The summary suspension hearing is civil in nature and the party requesting relief bears the burden of proof. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) The findings of the trier of fact with regard to whether this burden has been met will only be overturned where such findings are palpably against the manifest weight of the evidence. (People v. Torres (1987), 160 Ill. App. 3d 643, 513 N.E.2d 1142.) In the instant case, the arresting officer testified that defendant weaved in and out of lanes on the expressway, he failed to use his turn signals to change lanes, he smelled of a strong odor of alcohol, his eyes were glassy and his speech was slurred and difficult to understand. Conversely, defendant and his friend testified that between 1:15 a.m. and 2:45 a.m., he only consumed two to three eight-ounce glasses of beer at a tavern. It is within the province of the trier of fact to resolve disputed questions of fact and determine the credibility of the witnesses and the weight to be given their testimony. (People v. Griffith (1987), 153 Ill. App. 3d 856, 506 N.E.2d 430.) The trial court chose to disbelieve defendant’s witnesses and believe the testimony of the arresting officer. We see no reason to disturb the finding of the trial court that defendant did not satisfy his burden of proving by a preponderance of the evidence that the arresting officer had reasonable grounds to believe that defendant was driving under the influence of alcohol.

Finally, defendant contends that the summary suspension should be rescinded because it was not based upon a proper uniform traffic ticket as required by section 11—501.1 of the Illinois Vehicle Code. Specifically, defendant contends that the State failed to amend the charge of “driving under the influence of alcohol and/or drugs.”

Initially, we note that section 111—3(a) of the Code of Criminal Procedure of 1963 requires that a criminal charge be in writing, state the name of the offense, cite the statutory provision alleged to be violated, and set forth the nature and elements of the offense charged, the date and counts of the offense, and the name of the accused. (Ill. Rev. Stat. 1987, ch. 38, par. 111— 3(a).) In the case at bar, defendant was named in a verified traffic complaint charging an offense which occurred about 3:27 a.m. on December 27, 1987, on 1-90 between Lawrence and Cumberland in Cook County. This offense was designated as a violation of section 11—501(a) and was described as “driving while under the influence of alcohol and/or drugs.”

Charges brought in a formal complaint, indictment or information have been distinguished from those made in a uniform traffic citation. As stated in People v. Tammen (1968), 40 Ill. 2d 76, 78-79, 237 N.E.2d 517:

“Inasmuch as the Uniform Traffic Ticket is only used for misdemeanors, is written by an arresting officer rather than a State’s Attorney and is generally written at the time the offense is committed, we believe that naming the offense and citing it is sufficient and will generally be understood by the person charged. Under section 111 — 6 [citation] the accused may request a bill of particulars which will enable him ‘to prepare his defense.’ We hold that a conviction based on a Uniform Traffic Ticket naming an offense and citing the statutory provision, where there is no objection to the sufficiency of the ticket or request for a bill of particulars, will not be set aside for failure to comply with section 111 — 3(3).”

Furthermore, when the instrument did not offer any insight as to the specific charge made in a traffic citation, the court in People v. Cummings (1988), 176 Ill. App. 3d 293, 298, 530 N.E.2d 672, decided:

“Additionally, we find unpersuasive the defendant’s contention that the charging instrument was confusing because it did not indicate whether he was being charged with driving a vehicle while intoxicated or with being in actual physical control of a vehicle while intoxicated. Traffic offenses need not be charged with the specificity of indictments; naming the offense and citing the statute are generally sufficient. [Citation.] The complaint here was sufficient to charge the offense for which the defendant was convicted. For the above reasons, we conclude that the defendant was properly convicted of driving while under the influence of alcohol.”

In the case at bar, defendant was apprised of the charge against him such that he would be able to prepare his defense. When read in conjunction with the statutory provision cited, the ticket was clear that defendant was being charged with driving under the influence of alcohol, not drugs. If defendant was unsure of the charge, he could have filed a bill of particulars or requested a continuance to determine the charge against him. Thus, while the ticket was not a work of art or precision, we find it was clear on this record that the defendant knew of the charge against him and was able to prepare a defense for it, and the trial court was correct in not rescinding the statutory summary suspension.

Accordingly, the judgment of the circuit court of Cook County is affirmed. Since this is not an appeal from a conviction, the State’s request for costs is denied. People v. Brown (1983), 98 Ill. 2d 374, 457 N.E.2d 6.

Affirmed.

JOHNSON and McMORROW, JJ., concur.