text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS MOORE, Defendant-Appellant.
    First District (5th Division)
    No. 1—80—1615
    Opinion filed February 26, 1993.

      Dennis Doherty, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Sharon Heath, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant Carlos Moore (Moore) was tried jointly with codefendants Ulysses Edwards, Willie Oliver and Lorenzo Wiley for the murder and attempted armed robbery of William Kelly. The murder occurred in Kelly’s apartment on Chicago’s near north side in 1978, more than 14 years ago. A jury found Moore and the three other defendants guilty as charged after a July 1979 trial. Moore was then sentenced to concurrent terms of 80 years for murder and 15 years for attempted armed robbery.

The convictions of codefendants Edwards, Wiley and Oliver were affirmed by this court in an order dated May 21, 1982, issued pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23), meaning that the decision was unreported and of no precedential value. (See consolidated case Nos. 1 — 79—2469, 1 — 80—1404.) Moore, too, filed a timely appeal from his convictions and sentence; however, his appeal was dismissed for want of prosecution in 1980 after his retained counsel failed to file a docketing statement.

In 1983 the Attorney Registration and Disciplinary Commission (ARDC) suspended defendant’s attorney for 18 months, due in part to his neglect of defendant’s appeal. Thereafter, Moore moved to have his appeal reinstated and, in 1990, the Illinois Supreme Court ordered Moore’s direct appeal to this court reinstated. (See People v. Moore (1990), 133 Ill. 2d 331, 549 N.E.2d 1257.) Moore’s appellate brief was then filed in this court on April 23, 1991, the State's response was filed November 22, 1991, and Moore’s reply was filed January 28,

1992.

The case languished in this court until December 1992, at which time the case became the responsibility of newly seated appellate judge Justice Cousins, who had presided over the trial in 1978. Consequently, Justice Cousins recused himself from the case. In January 1993, nearly 15 years after Kelly’s death, oral argument was held on Moore’s appeal for the first time. For reasons that follow, we now affirm Moore’s convictions and sentence.

On appeal Moore does not deny his involvement in Kelly’s murder and attempted robbery. Instead he seeks a new trial, based upon certain alleged procedural errors, or a reduction of his sentence. The issues raised are: (1) whether Moore should be entitled to a new trial because a nontestifying codefendant’s confession was admitted into evidence at the joint trial, even though Moore’s own confession was also admitted; (2) whether the State failed to prove that Moore’s confession was voluntary; (3) whether Moore’s trial counsel labored under an actual conflict of interest due to his joint representation of Moore and codefendant Wiley; (4) whether Moore was denied due process of law because the trial court barred the testimony of two witnesses tendered by the defense; and (5) whether Moore’s extended-term sentence was improper and excessive.

The first issue is whether defendant was denied a fair trial because a nontestifying codefendant’s statement was admitted into evidence, not as evidence against Moore but as evidence against that co-defendant. The record shows that prior to trial all of the defendants moved for severance, which was denied, and that they were then tried jointly. Moore and Wiley were jointly represented by a single attorney, while Edwards and Oliver were jointly represented by another attorney. Each of the codefendants made both oral and written inculpatory statements subsequent to arrest, which were. admitted as evidence against them at trial. Moore, Wiley and Edwards each testified in their own defense at trial, each claiming that their statements were not true and that the police had coerced them into making the statements. Oliver did not testify at trial. However, his defense counsel adopted the same position, i.e., that Oliver’s statement had been coerced.

Relying on Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, Moore contends that his right of confrontation, guaranteed to him through the sixth and fourteenth amendments of the United States Constitution, was violated and that he was denied a fair trial because Oliver’s statement was admitted into evidence at the joint trial although Oliver did not testify and, therefore, was not subject to cross-examination. In addition, Moore claims that he was further denied a fair trial due to the admission of Edwards’ and Wiley’s statements because, although they testified at trial, Moore’s trial counsel did not cross-examine them. Furthermore, Moore contends that the admission of the codefendants’ statements violated Illinois evidentiary law.

Although defendant declares that the above-cited errors occurred, he does not demonstrate the error in the context of his case. Moore cites to relevant case law concerning these claims, but does not relate the case law to the facts of this case. When doing so it is clear that Moore’s claims are without merit.

As a general proposition, defendants who are indicted jointly should be tried jointly, especially where the crime involves a common scheme or plan. (People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026.) However, under certain circumstances, substantial fairness may require a different result. In 1968 the United States Supreme Court determined one such circumstance. (See Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) In the Bruton case two defendants were tried jointly for armed robbery. One of the defendants confessed and inculpated the other, the other defendant made no admission of guilt. The Bruton Court held that under these circumstances it was unfairly prejudicial to defendant, notwithstanding any cautionary or limiting instructions that might be given to the jury, to admit codefendant’s incriminating statement during the joint trial if codefendant also failed to testify at trial. The Court reasoned that this evidence violated defendant’s sixth amendment right of confrontation because there was too great a risk that this evidence, though not admitted against defendant directly, would be considered by the jury when assessing his guilt or innocence. Furthermore, this evidence, though devastating to defendant’s case, was inherently unreliable. There was a high probability that codefendant would want to shift or spread blame, yet his motives could not be tested through cross-examination.

Some years later, an exception to the Bruton rule was set forth by a divided Supreme Court in the plurality decision authored by Justice Rehnquist, Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132. According to the decision in Parker, the Bruton rule was not violated and reversal of a defendant’s conviction was not mandated if the defendant also made a confession and his confession “interlocked” with the nontestifying codefendant’s confession which implicated him.

Parker was the law at the time of Moore’s trial. Consequently, when ruling on defendants’ motions for severance the trial court considered the fact that the confessions of all four codefendants in this case were substantially identical or “interlocking” and concluded that severance was not necessary because, whether or not any of the defendants testified, the admission of their confessions would not be error under the Parker exception to the Bruton rule.

Thereafter, the four codefendants were jointly tried and the oral and written confessions of each of the defendants were introduced at trial. Moore, Wiley and Edwards chose to testify at trial, denying the truth of the confessions and contending that the police had coerced them into making the statements. The jury was instructed to consider each confession only against the person who made it.

Had Moore’s appeal proceeded normally, the introduction of the contents of each codefendants’ out-of-court statements, most likely, would not have been an issue based on the Parker opinion. However, during the interim between defendant’s conviction and this appeal, the United States Supreme Court decided the Cruz case, wherein the Court decided to adopt Justice Blackmun’s approach to the admission of nontestifying codefendants’ interlocking confessions, as set forth in Parker. (See Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714.) Thus, according to Cruz, the admission of a nontestifying codefendant’s extrajudicial statement violates a defendant’s sixth amendment right of confrontation and constitutes reversible error, unless the statement bears sufficient indicia of reliability for it to be independently admitted against defendant or its admission is deemed harmless beyond a reasonable doubt. See also Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056.

Moore seeks to take advantage of the change in the law brought about by the decision in Cruz, and the State does not argue that Cruz is inapplicable to this appeal. (See Graham v. Hoke (2d Cir. 1991), 946 F.2d 982 (the Cruz rule is to be applied retroactively); People v. Kubik (1991), 214 Ill. App. 3d 649, 573 N.E.2d 1337.) Nonetheless, the State argues that, under the attendant circumstances of this case, it was not error to have admitted Oliver’s statement at trial. Citing to Lee v. Illinois, the State contends that there were sufficient indicia of reliability for Oliver’s confession to have been admitted against Moore as substantive evidence. Alternatively, the State argues that any error that may have resulted from the admission of Oliver’s statements at trial was harmless beyond a reasonable doubt. In addition, because the admission of Oliver’s statement did not constitute prejudicial error, the State argues that Illinois constitutional and evidentiary law was not abrogated.

After considering all of the arguments presented by both parties we find that, despite the applicability of the Cruz rule to the present case, Moore is not entitled to a new trial. First of all, defendant provides no support for the theory that his rights protected under State and Federal constitutional law were violated by the admission of the confessions of Wiley and Edwards, both of whom testified at trial. In fact, the only case cited by defendant, People v. Jones (1988), 121 Ill. 2d 21, 520 N.E .2d 325, holds that when codefendants take the stand and repudiate their earlier statements which inculpate a defendant there is no need for cross-examination since the repudiation is more favorable than any cross-examination could possibly be. Moore seeks to distinguish this case from Jones, claiming that there was a conflict of interest (Moore’s third issue on appeal); however, for reasons that we will discuss later on in this opinion, we do not agree that a conflict existed. Therefore, we find the Jones case directly applicable to the case at bar and conclude that the admission of Edwards’ and Wiley’s statements did not offend either State or Federal law. See People v. Collins (1989), 184 Ill. App. 3d 321, 539 N.E.2d 736 (only nontestifying codefendant’s statements constitute inadmissible hearsay under Illinois law and reversible error results only if admission of the statement is found to be prejudicial error).

Secondly, the Cruz court makes it clear that when the inculpatory statements of a nontestifying codefendant are admitted at a joint trial, reversal of the conviction is not mandated. If there are sufficient indications that a statement is reliable, it may be directly admissible against the defendant. (See Lee v. Illinois, 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531.) Alternatively, the circumstances of the case may be analyzed under the harmless error rule.

When considering the facts of this case we find that, under Federal evidentiary standards, Oliver’s statement could have been admitted as substantive evidence against Moore since there was ample evidence that Oliver’s statements were reliable. Furthermore, any error that may have derived from the admission of Oliver’s statements and any prejudice that might have inured to Moore as a result were harmless beyond a reasonable doubt. The evidence adduced at trial, independent of Oliver’s statement, overwhelmingly supported Moore’s conviction. Thus, the admission of Oliver’s statements did not deny him a fair trial. Furthermore, although there is some doubt whether a separate analysis under Illinois constitutional and evidentiary law is even necessary (see People v. Duncan (1988), 124 Ill. 2d 400, 530 N.E.2d 423), we find no prejudicial error under State law.

Trial testimony established that the victim, William Kelly, was shot in his own home in the early morning hours of February 20, 1978. On the day in question, Kelly was 61 years old and he lived in the first-floor apartment at 1506 North Hudson in Chicago. Kelly’s daughter, Oralee White, and his granddaughter, Rhonda White, were staying with Kelly in the apartment. Another daughter, Elizabeth Boone, and her boyfriend, Milton Davis, lived in the apartment above Kelly’s.

Kelly was well known in the area as “Poppa Kelly” or “the candyman” because he sold candy and soft drinks out of his kitchen to the neighborhood children. Because Kelly had a pacemaker and didn’t sleep well lying down, he often slept sitting in a chair in the dining room, just off the kitchen. Consequently, he was known to answer his back door almost anytime of the day or night to sell potato chips, candy, soft drinks or other similar refreshments.

At about 3 a.m. on February 20, 1978, the four defendants knocked at Kelly’s back door and, under the guise of wanting to buy some candy and refreshments, entered the apartment. Shortly thereafter Rhonda White, who was sleeping on a couch in the living room, was awakened by the sound of gunshots. Rhonda testified that after the gunshots she heard the back door slam and then heard the sound of people running down the alleyway along the side of the house. Immediately thereafter her grandfather walked into the living room. She could see that he was bleeding, and he told her that he had been shot. Mr. Kelly, who was also carrying a gun, indicated to Rhonda that he believed that “he got [shot] one of them.” Rhonda awakened her mother, Oralee, who had also been sleeping on a couch in the living room. Rhonda then knocked at the door of the upstairs apartment and summoned help.

Milton Davis, who lived upstairs with Kelly’s daughter, Elizabeth Boone, also testified. He, too, was awakened by the sound of gunshots in the early morning hours of February 20, 1978. After the gunshots he heard someone ring his doorbell. When he answered the door he saw Rhonda, who told him that Kelly had been shot. Elizabeth Boone called the police while Milton Davis went downstairs.

When Davis arrived downstairs he found Kelly lying on the floor of the hallway. He helped Kelly to sit up and at this time Kelly told him that three or four black men had attempted to rob him and that he (Kelly) had been able to shoot one or two of them while resisting their efforts.

The police arrived within a few minutes and found Kelly still alive and conscious but unable to speak. An ambulance was called and Kelly was taken to Henrotin Hospital. He died shortly thereafter.

Dr. Malak, assistant chief medical examiner for Cook County, testified at trial that the autopsy he performed on Kelly revealed that Kelly suffered three gunshot wounds. Kelly died as a result of two of them, one to his chest and the other to his arm. A bullet and a bullet fragment were recovered from Kelly’s body. The bullet was .38 caliber and the bullet fragment, although too mutilated to identify precisely, was consistent with a .38-caliber bullet. Based upon the caliber of the bullet and Moore’s statements, it was shown that the bullet that entered Kelly’s chest came from the gun that Moore had carried.

Chicago police investigator Lawrence Flood testified that on the morning of February 22, 1978, he spoke with a person by the name of Raymond Hampton. As a result of this conversation he and his partner, Investigator Schuler, left Area 6 station and attempted to locate four persons, Edwards, Oliver, Moore and Wiley, in conjunction with the Kelly murder.

At about 4 p.m. they found Moore at 1410 N. Cleveland and he accompanied them to Area 6. Investigator Flood also testified that he took into possession a blue coat which he found hanging on the back of Moore’s bedroom door. The coat had dark spots on it, which later testimony proved to be blood. Testing conducted on these blood spots revealed that the blood did not match Moore’s blood type or the blood type of any of the three codefendants. The blood did, however, match Kelly’s blood type and subtype.

Oliver was taken into custody soon after Moore, and they were both transported to the station together. Upon their arrival at Area 6 station, the police first interviewed Oliver. Within a short period of time Oliver gave an oral statement to the police in the presence of Assistant State’s Attorney Hyman, admitting involvement in the Kelly murder. He then repeated his statement for a court reporter and signed the transcribed statement.

At about 10:30 p.m. on February 22, 1978, after Oliver’s statement was transcribed, Oliver’s statement was taken into the interview room where Moore was being held. After being advised of his rights, Moore was shown Oliver’s statement. Moore then gave his own statement to police, in the presence of Assistant State’s Attorney Hyman.

According to Moore’s statement, on the evening of February 19, 1978, Moore, Curtis Royal and the three codefendants (Edwards, Oliver and Wiley) decided to rob Kelly. Carrying two guns, they proceeded to Kelly’s home. At Kelly’s, Wiley and Oliver knocked at the back door and told Kelly that they wanted to purchase something. Once Wiley and Oliver were admitted into the home, Edwards entered the home carrying one of the guns and announced a stick-up. Kelly produced his own gun and began firing at them. Edwards struggled with Kelly and fired his revolver at Kelly two or three times. Moore, who was in possession of the other gun, a .32-caliber revolver, then entered the apartment. He pushed Oliver out of the way and, he claimed, fired his gun into the air. After the incident the four men ran out of Kelly’s apartment and back to the apartment Moore shared with his sister, Zenita Underwood.

Moore, with the assistance of Oliver, provided police with a hand-drawn diagram depicting Kelly’s kitchen, showing each defendant’s position during the incident. Both Moore and Oliver signed the diagram and the paper was then time-stamped at about 1 a.m. on February 23, 1978. Immediately thereafter, at about 1:30 a.m. on February 23, 1978, Moore repeated his statement before a court reporter. During this statement he referred to the diagram that he had drawn.

In addition, Moore gave the police a note for his sister, Zenita Underwood, instructing her to turn over the guns to the police. Investigators Flood and Epplan took the note to Zenita Underwood. At Underwood’s request they transported her to the station, where she spoke to Moore. After her conversation with Moore, Underwood accompanied the police officers to a residence at 5739 Iowa. She entered the building alone and returned to the police car with two weapons, which she turned over to the police. The weapons were identified as a .38-caliber Smith and Wesson revolver and a .38 special Smith and Wesson revolver.

Edwards, having learned that the police were looking for him, came to Area 6 station with his mother in the early morning hours of February 23, 1978. At about 2 a.m. Carlos Moore was brought into the interview room where he was being held. Moore told Edwards what he had told the police and then was removed from the room. Edwards, after being advised of his rights, agreed to speak with the police. Edwards admitted that he and the other defendants went to Kelly’s home to rob him. He further indicated that, after Wiley and Oliver gained entry into the Kelly home, he entered and announced a stick-up. Kelly pulled a gun, a struggle ensued and shots were exchanged. Moore then entered the room and fired a shot. After the incident they all ran back to Moore’s apartment.

At about 2:50 a.m. Edwards repeated his statement before a court reporter. In this statement Edwards identified the guns that had now been recovered through Zenita Underwood as the guns that were used in the incident.

At about 3:10 a.m. on February 23, 1978, Investigators Flood and Epplan brought Wiley into Area 6. Moore was allowed to speak with Wiley briefly and then Wiley was advised of his rights. Thereafter Wiley gave an oral statement to the police which was later repeated before a court reporter. Wiley’s statements were substantially identical to the others, except that in his court-reported statement Wiley indicated that he ran out of Kelly’s apartment after Kelly pulled a gun and fired a shot. Consequently, Wiley stated that he did not know what happened after that.

Finally, at about 4:15 a.m. on February 23, 1978, Moore gave another court-reported statement. In this statement Moore identified the guns recovered by Zenita Underwood as the guns used during the attempted robbery at Kelly’s apartment. Moore also stated that he had instructed Zenita to turn the guns over to police.

Although there were enough statements in this case for an entry in the Guinness Book of Records, it is clear from the evidence, as set forth above, that there was more than sufficient evidence to prove Moore’s guilt, even without considering any of the codefendants’ statements. Moore alone generated an oral statement, two statements transcribed by a court reporter, a hand-written note to his sister and a hand-drawn diagram of Kelly’s kitchen. In addition, Moore’s coat was spotted with blood that matched Kelly’s type and subtype and the guns, which Moore caused to be recovered, were consistent with the bullets found in Kelly’s body.

Edwards and Wiley each made two statements, the admission of which did not, as noted above, violate Moore’s sixth amendment right of confrontation. Additionally, it is significant to note that their statements, as well as Oliver’s statement, meshed with Moore’s confession in every material detail. This was not a situation where the codefendants attempted to shift blame, exculpate themselves or inculpate Moore to any greater extent than he did by his own confession. In fact, in most instances the other defendants’ statements inculpated Moore far less than his own statements did. Furthermore, the statements conformed with and corroborated the physical evidence.

It is also significant that the circumstances under which these statements were made do not indicate any heavy-handedness on the part of the police. The confessions were the result of questioning which occurred shortly after each defendant’s arrest. Defendants were not held for lengthy periods of time while the police attempted to gather evidence against them. For all these reasons, Oliver’s statements may be considered highly reliable.

However, even if we did not find Oliver’s statements admissible under the Lee standard, we would find that Oliver’s statements were a mere redundancy of the abundant evidence properly presented at trial. Consequently, there is no question in this court’s mind that the admission of Oliver’s statements did not prevent Moore from obtaining a fair trial.

The next question presented for this court’s consideration is whether the State failed to prove that Moore’s statements were voluntary. The record shows that prior to trial Moore filed a motion to suppress his admissions and a hearing was held on the motion. After considering the evidence presented at the hearing, the trial court concluded that Moore’s statements were voluntary.

A trial court’s determination that a defendant’s statement was given voluntarily may not be reversed unless, based upon the totality of the circumstances, we can say that the trial court’s ruling was against the manifest weight of the evidence. (People v. Terrell (1989), 132 Ill. 2d 178, 198, 547 N.E.2d 145.) After reviewing the evidence, we find no basis for reversing the trial court’s conclusion.

The standard by which a reviewing court must measure any claim of involuntariness does not depend on any singular factor, but upon the totality of circumstances. (People v. Ramey (1992), 152 Ill. 2d 41, 57-58, 604 N.E.2d 275; People v. Redd (1990), 135 Ill. 2d 252, 292, 553 N.E.2d 316.) Ultimately, the test is whether the conditions under which the statements were made indicate that defendant’s will was overcome. (People v. Ramey, 152 Ill. 2d at 57; People v. Terrell, 132 Ill. 2d at 198.) After the State presents a prima facie case that the confession was voluntary, the burden shifts to the defendant to show that the waiver of his rights and his decision to confess were not knowing, intelligent and voluntary acts. People v. Smith (1990), 199 Ill. App. 3d 839, 557 N.E.2d 596.

Moore’s claim on appeal is that his confessions were not voluntary due to an incapacity stemming from epilepsy. That Moore was afflicted with epilepsy seems uncontradicted. But there is nothing in the record to suggest that his condition affected the voluntariness of his statements. Nor does Moore even attempt to enlighten this court on the manner in which his epilepsy might have disabled him.

At the hearing on Moore’s motion to suppress his statements, Moore and his father both testified that Moore had suffered from epilepsy for some years. However, it was never contended in either the written motion or the oral clarification of the motion that Moore’s counsel provided to the court that Moore’s epilepsy incapacitated him to the extent that his admissions were involuntary. Nor was this argued during the motion or at trial. The main thrust of Moore’s argument at the suppression hearing was that he was beaten by the police, deprived of basic amenities and refused access to his attorney. These were the primary bases upon which Moore relied to support his allegation of physical and mental coercion.

At trial Moore again indicated that he was physically and mentally coerced by the police, claiming that he was beaten and deprived of food and medication. However, he never stated or even implied that the lack of medication rendered him incapable of understanding the implications of the statements he was making.

Now on appeal Moore abandons all the other previously alleged bases for finding his statements involuntary and relies solely upon his epileptic condition. Without reference to supporting case law, Moore contends that because he was an epileptic and did not receive medication for this condition during the time that he was in police custody, we must find that his statements were involuntary. We disagree.

In this case the State made a strong showing, supported by the testimony of three police officers, a court reporter and an assistant State’s Attorney, that Moore knowingly waived his rights after being properly admonished. The testimony that the State presented indicated that Moore was conscious, coherent and fully cognizant of his own actions. Even defendant’s own testimony supports this finding. Relevant to his epilepsy, defendant merely stated that without his medication he felt that he might have a seizure and felt “nervous” and shaky. He never indicated that he couldn’t understand the meaning of his actions. Consequently, we find that the mere fact that Moore suffered from epilepsy, without more, does nothing to overcome the State’s prima facie showing that Moore voluntarily confessed to his participation in Kelly’s murder. Considering the standard of review and the evidence, we must find that Moore’s confessions were voluntarily made.

This court’s own research revealed an extremely limited number of cases involving epilepsy. In People v. Romaine (1979), 79 Ill. App. 3d 1089, 399 N.E.2d 319, the defendant’s affirmative defense to charges of armed robbery and armed violence was that he was insane due to the fact that he suffered from limbic epilepsy. A psychiatrist testified that limbic epilepsy, also known as episodic discontrol syndrome, differed from the more common convulsive types of epilepsy (i.e., the chronic disease which manifests itself through seizures which cause unconsciousness, shaking and falling down). The psychiatrist testified that a person suffering from limbic epilepsy could manifest a state of extreme rage. Such a person might be physically abusive and, though he could understand what was happening, would not have control over his behavior. Despite this testimony, the jury rejected the defense and the reviewing court affirmed, finding that the evidence did not necessarily require a finding that defendant did not have the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

Ironically, in United States v. Rose (W.D. Ky. 1981), 657 E2d 270, defendant claimed that an admission he made was not voluntary because, among other reasons, it was taken while he was under the influence of the medication he took for his epilepsy. The reviewing court summarily rejected the claim.

These cases lend support for this court’s finding that the voluntariness of defendant’s admissions was unaffected by the fact that he was an epileptic. Moore presented no evidence to show the severity of his condition or the effect that a deprivation of medication might have on his behavior.

The next issue is whether Moore was denied a fair trial due to his trial counsel’s conflict of interest stemming from the joint representation of Moore and codefendant Wiley. The State argues that this issue is waived because Moore failed to object at trial to his privately retained counsel’s joint representation of him and Wiley and because trial counsel did not indicate in the post-trial motion that his ability to represent Moore was impaired by the joint representation of Wiley.

Our supreme court has repeatedly held that, absent plain error, waiver will apply and appellate review will be denied where the alleged errors were neither objected to at trial nor raised in a post-trial motion. (.People v. Pasch (1992), 152 Ill. 2d 133, 604 N.E.2d 294.) Furthermore, courts have held that unless the potential for a conflict of interest based upon multiple representation is brought to the attention of the trial court, the trial court may assume that the multiple representation of defendants entails no conflict and that defendants have knowingly waived any risk of conflict. (Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708.) Absent an objection to the joint representation, defendant must demonstrate an actual conflict which adversely affected his counsel’s performance. Cuyler v. Sullivan, 446 U.S. at 348, 64 L. Ed. 2d at 346-47, 100 S. Ct. at 1718.

Moore apparently concedes that no objection was made at trial since he claims on appeal that the matter is reviewable because the record evidences an actual conflict of interest. However, Moore does not demonstrate an actual conflict of interest. Moore merely contends that trial counsel was hindered from “effectively utilizing” a minor discrepancy in Wiley’s oral statement to Moore’s advantage. However, trial counsel did bring the discrepancy in the statements to the attention of the jury and, furthermore, as stated earlier, Wiley testified at trial and denied making the statements altogether. Wiley’s and Moore’s defenses were not conflicting. Rather, Wiley’s testimony was consistent with Moore’s defense that their statements were the fabrication of the police. In addition, Moore presents no plausible alternative defense strategy that might have been employed by separate counsel. Thus, we conclude that any conflict of interest is, at best, hypothetical and speculative and reversal of Moore’s conviction is not required. See People v. Jones (1988), 121 Ill. 2d 21, 520 N.E.2d 325; People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.

The fourth issue is whether Moore was denied due process because the trial court refused to allow two proffered defense witnesses (the Hamptons) to testify concerning the alleged abusive treatment they received at the hands of unidentified police officers while they were held in custody and interrogated in conjunction with the Kelly investigation. In an offer of proof, defendants informed the court that the Hamptons were prepared to testify that they were beaten and coerced into making statements by the police. As Moore acknowledges, this issue was raised by Edwards, Wiley and Oliver in their consolidated appeals and this court rejected the assertion of error in a Rule 23 order, finding that the proffered testimony of these witnesses was immaterial and irrelevant. We stand by our earlier ruling as set forth in that Rule 23 order.

A trial court may exclude evidence it finds to be immaterial and irrelevant. Absent a clear showing of an abuse of discretion, the trial court’s ruling on the admission of testimony will not be overturned. (People v. Williams (1990), 196 Ill. App. 3d 851, 554 N.E.2d 1040.) We find no direct correlation between the coercive tactics allegedly experienced by the Hamptons and Moore’s case. Therefore, we find no abuse of discretion in the exclusion of these witnesses. As an aside we note that despite the Hamptons’ alleged beatings and coercion, the Hamptons did not confess to the crime. Therefore, Moore’s contention that the Hamptons’ testimony of coercion would tend to show that he was beaten and coerced into confessing is inherently faulty.

Finally, Moore contends that the extended-term sentence he received was improper and excessive. Initially, we note that defendant was found to be eligible for the death penalty, but that the court found sufficient mitigating factors to preclude its imposition. Defendant was then sentenced to the maximum extended term of 80 years’ imprisonment, based upon the trial court’s finding that the murder had been accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty and that defendant must be kept from society for its protection.

Although this court agrees that we live in an era of increased crime rates and correspondingly increased sentences, we have found that the increased sentences do nothing to deter crime or make a better society. Nor do they alleviate the serious problem of overcrowding in our jails. The only thing that a lengthy jail sentence accomplishes is a false sense of security for the rich and feeling of despair and insecurity for the poor.

Nevertheless, it is not this court’s function to impose its own sense of crime and punishment. Rather, the imposition of a sentence is a decision peculiarly within the province of the trial judge, who had the opportunity to hear the evidence as well as the factors in mitigation and aggravation. (People v. Barfield (1989), 187 Ill. App. 3d 190, 543 N.E.2d 812.) We find no abuse of the broad discretion given to trial courts when imposing sentences.

In this case four young men planned to rob an elderly man with a pacemaker who was known to run a concession business out of his home for the convenience of the neighborhood children. The four young men went to the man’s house, induced him to open his door under the guise of wanting to purchase a snack and repaid his kindness by aiming guns at him and announcing a holdup. When the elderly man attempted to defend himself the four young men did not run away. Instead, one of them wrestled -with the man to get his gun away from him and, while the man was so engaged, Moore entered the home and fired shots at the man. Under these circumstances, the trial court acted within its power when it imposed an extended-term sentence on Moore based upon the cold and brutal disregard Moore exhibited for Kelly’s life.

For all the reasons stated above, we affirm Moore’s convictions and sentence.

Affirmed.

GORDON, P.J., and McNULTY, J., concur.

      Moore contends on appeal that he was restricted from cross-examining codefendants Wiley and Edwards. However, this statement is somewhat misleading. The trial court did restrict Moore’s counsel from cross-examining codefendant Edwards’ mother. The court’s dialogue concerning this matter reveals that the court limited cross-examination by Moore’s counsel because it would be duplicative of cocounsel’s direct examination. There is no indication that Moore’s counsel ever attempted to cross-examine Edwards.
      Finally, it is important to remember here that Moore’s counsel also represented Wiley. Therefore, Moore’s counsel did not cross-examine him, but instead, directed the examination of this witness.

      A plurality of four justices found no sixth amendment violation. The remaining four justices who considered the case subscribed to Justice Blackmun’s view, that the introduction of a nontestifying codefendant’s confession was a violation of the sixth amendment and error under the Bruton case, but that the error could be rendered harmless by the introduction of defendant’s own interlocking confession. In Parker, Justice Blackmun did, in fact, find the error to be harmless, thereby producing a majority for affirmance.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD REED, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—3938
    Opinion filed March 12, 1993.
    Rehearing denied March 26, 1993.

      Michael J. Pelletier and Todd Avery Shanker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and Elizabeth A. Scholz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

On December 16, 1990, defendant Gerald Reed (Reed) was arrested and charged under indictment No. 91 — OR—2439 with possession of a controlled substance (.51 grams of heroin) with intent to deliver. (Ill. Rev. Stat. 1989, ch. 56^2, par. 1401(d).) While Reed was released on bond pending trial on the case, he was arrested on April 30, 1991, and charged under indictment No. 91 — CR—13210 with a separate instance of possession of a controlled substance with intent to deliver. A jury trial was held on the first indictment on September 25, 1991, and Reed was found guilty. Prior to sentencing on this conviction, Reed pled guilty to the charge in the second indictment and was then sentenced on both convictions to six years’ imprisonment, sentences to run consecutively.

Reed now appeals from the judgment and sentence entered on the jury conviction only. In his appeal Reed raises these three issues: (1) whether he was denied a fair trial because the trial court admitted into evidence a $20 bill despite certain defects in the chain of custody; (2) whether the prosecutor’s closing argument evidenced misconduct because he referred to Reed as a drug dealer and misstated the law; and (3) whether Reed was denied effective assistance of trial counsel. For reasons that follow, we affirm Reed’s conviction and sentence.

Two Chicago police officers, Ronald Baez and Scott Chambers, testified that on the afternoon of December 16, 1990, they were assigned to routine patrol duty. Around 4:30 p.m. they began surveillance of the southeast corner of Bowen and Vincennes, which is located within their beat and known to the officers to be a high crime area. While sitting in their marked patrol car about a block and a half away, they surveyed the corner using binoculars (or field glasses). Doing so, they observed four or five men standing on the corner in front of a liquor store. One man, who was later identified as Reed, was standing near two telephones located on the same corner. He was wearing a suit, had a trench coat draped over his shoulders and a fedora on his head.

Through the binoculars the officers witnessed what they believed to be drug transactions taking place between Reed and other persons. First Officer Chambers and then Officer Baez used the binoculars. Each officer, in turn, observed someone approach Reed and pass what appeared to be currency to Reed. Reed then reached into his right pants pocket and passed something back to the person. After each officer witnessed an exchange, they decided to make a street stop.

As Officer Chambers drove the marked patrol car to the corner, he and Baez could see that a third person had approached Reed. From their position now, the officers could see that this person was passing money to Reed. Baez jumped out of the patrol car as someone yelled “Police.” Immediately the person, having been made aware of the police officers’ presence, turned and walked hurriedly away. Reed, who had been in the process of withdrawing an item from his right pants pocket to pass to the person, crumpled the bill that he received and placed it into his left pants pocket and replaced the item he had in his right pocket. Reed, too, began to walk off and, as he did so, dropped a plastic bag.

Baez stopped Reed and placed him under arrest while Chambers retrieved the plastic bag, which now could be seen to contain four smaller knotted plastic bags, each containing a tan-colored powder. Reed was patted down and placed into the patrol car.

As the officers arrested Reed, two or three verbally belligerent men approached the officers and told the officers not to take Reed away. These men, who appeared to have been drinking, were told to disperse. When they refused, they were arrested and taken with Reed to second district police station.

At the police station Reed was searched. Baez testified that a crumpled $20 bill was found in Reed’s left pants pocket and another $1,300 was found in various locations on Reed’s person. The $1,300, which consisted of one $50 bill, 23 $20 bills, 48 $10 bills, 48 $5 bills and 70 $1 bills, was grouped into $100 bundles and distributed in three locations on Reed’s person, including Reed’s shoe.

Officer Baez further testified that he inventoried the $1,300 that had been recovered from Reed, filling out an inventory slip for it personally. He also testified that he had inventoried the $20 bill, which was given its own inventory number and kept separate from the other currency. The plastic bag containing the four individual bags of tan powder was also inventoried at this time.

Craig Washington, a chemist for the Chicago police department, testified that he tested the tan powder that was recovered at the time of defendant’s arrest. The powder contained in the four knotted baggies was determined to be a substance containing heroin with a total weight of .51 grams.

At the close of the State’s case, the State moved to have exhibits 1 through 3 admitted into evidence. The defense objected to the admission of exhibit No. 2, which was the $20 bill. The objection was overruled, and the defense called its first witness, Keyon Moore.

Moore indicated that he had known Reed for four years and then testified that around 5:30 p.m. on December 16, 1990, he was walking to the store located on the corner of Bowen and Vincennes. As he was approaching the store he saw two police officers in a marked car pull up to the comer. The officers got out of the car and ordered everyone to place their hands on the police car.

Moore testified that he and Reed, who had been using one of two telephones on the corner, were among the persons who complied with the officers’ demand. The officers then searched everyone twice and, in the second search, found some money in Reed’s shirt pocket. Based upon this discovery the officers handcuffed Reed, placed him in the patrol car, and told the rest of the people they could leave.

According to Moore, after arresting Reed the officers did not drive away. Instead, they began to search the area, including a vacant lot across the street. In this vacant lot one of the officers found a plastic bag among the weeds. The officers then told the five or six persons who had remained in the area to again place their hands on the patrol car. Moore testified that these persons were searched and, after this third search, four more persons were handcuffed and taken into custody. Moore was not among those persons who were arrested and he gave no explanation for the arrest of these other persons.

The next defense witness was Squire Armstrong. He testified that on December 16, 1990, he lived at 517 East Bowen. When he looked out his window in the evening on that date, he saw two police officers searching four or five people who were standing with their hands on a police car. Armstrong, who also knew Reed, claimed that Reed was on the telephone when the police interrupted him, searched him and then handcuffed him.

Armstrong further testified that he left his apartment and went to the liquor store. As he walked into the liquor store he noticed that the police officers were searching the vacant lot across the street. As he was leaving the liquor store, he saw that the police grabbed his nephew, who had been standing on the corner. Armstrong went to see what the trouble was and the police arrested him and his nephew, as well as a couple of other persons, for mob action.

After this evidence was presented, the defense rested. The jury was instructed and, after deliberation, Reed was found guilty of possession of a controlled substance with the intent to deliver.

In Reed’s first issue on appeal he contends that he was denied due process of law because the trial court admitted into evidence the $20 bill recovered from Reed although a proper chain of custody was not proven. He asserts that because an objection was made at trial to the admission of this evidence and because the admission of this evidence was “plain error,” the issue is preserved for review despite the fact that the matter was not raised in a post-trial motion.

The State, on the other hand, contends that Reed waived this issue by failing to bring it to the court’s attention in a post-trial motion. Alternatively, the State argues that the chain of custody was proper, but that even if the chain of custody was improper, any error was harmless beyond a reasonable doubt.

Before we resolve this issue, we first return to the testimony concerning the $20 bill. Officer Baez testified concerning the process he followed when inventorying the money recovered from Reed. Baez stated that he first counted the money in front of defendant, then had the desk sergeant recount the money. The $1,300 was then placed in a money envelope and inventoried in an inventory book, with a receipt being produced and signed by him. Baez identified the inventory slip in court.

In addition, Baez testified that he placed the $20 bill, which he inventoried separately, into a plastic bag, placed the $1,300 into another plastic bag and then placed both plastic bags into the same money bag. Baez also testified that money bags were generally placed in a bank for security purposes. However, at trial Baez was shown an envelope which contained a $20 bill. Although he identified the envelope, he indicated that the signature on the envelope was that of the “IRPS officer” and that he (Baez) had not been present when the money was placed into the envelope at the “IRPS.”

We agree that the testimony adduced at trial failed to establish a continuous chain of custody for this $20 bill. However, we note that no objection was made to the sufficiency of the chain of custody during Baez’s testimony. Consequently, Baez was not asked to clarify the chain of custody as to this bill. The only objection came at the close of the State’s case when the State moved for the admission of the physical evidence. Only then did defense counsel object to the admission of exhibit No. 2, which was the $20 bill, on the ground that the State had failed to prove that the $20 bill was the same bill taken from Reed.

It would seem that this rather untimely objection, coupled with the failure to raise the issue in a post-trial motion, should constitute waiver. (People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196.) However, even if waiver did not apply, we would not find that Reed was entitled to a new trial. We believe that a sufficient foundation was established to permit the admission of the $20 bill into evidence. (People v. Pittman (1963), 28 Ill. 2d 100, 103, 190 N.E.2d 802.) Furthermore, even if the foundation was not sufficient, the admission of the $20 bill into evidence was, at worst, harmless error.

To establish a sufficient chain of custody the State need only establish that it took reasonable protective measures after the evidence was seized and that, in all probability, the evidence was not changed, tampered with or substituted. (People v. Tsombanidis (1992), 235 Ill. App. 3d 823, 833, 601 N.E.2d 1124.) Unless the defendant shows actual evidence of tampering or substitution, any deficiencies in the chain of custody go to weight, not admissibility, of the evidence. (Tsombanidis, 235 Ill. App. 3d at 833.) Based upon these standards, we must find that a sufficient chain of custody was established to support the trial court’s decision to admit the evidence at trial. The arresting officer’s testimony established that, after he recovered a $20 bill from Reed, he inventoried it and placed it into a plastic bag and then into a money bag along with the $1,300. The money was then deposited in a bank for security purposes. It is unclear from the testimony at trial whether the $20 bill was still in the plastic bag or whether the inventory number given to the bill by Officer Baez was still attached to the bill in some manner. However, as stated earlier, since defendant does not contend that the State tampered with the evidence in any way, these deficiencies go to the weight to be given the evidence, not to its admissibility.

Furthermore, even if the $20 bill had been improperly admitted, the error was harmless beyond a reasonable doubt. Reed was charged with and convicted of possession of a controlled substance with the intent to deliver. It was, therefore, incumbent upon the State to prove that Reed had in his possession a controlled substance. Thus, the State had to show that the substance recovered from Reed was, in fact, the substance that was later tested and proven to be a controlled substance.

To establish Reed’s culpability for the crime charged, it was not necessary to show that Reed had any money on his person. Nor was it necessary to show that Reed possessed a particular $20 bill. The $20 bill recovered from Reed was only significant because it tended to corroborate the officers’ testimony concerning the exchanges between Reed and other persons which the officers testified that they witnessed. The officers’ testimony is what established the “intent to deliver” portion of the offense with which Reed was charged, not the $20 bill. There was also little, if any, motivation for the police to alter or tamper with this physical evidence. Furthermore, the $1,300 found on Reed also tended to support the notion that Reed had been selling the drugs he had in his possession. For these reasons, the admission of the $20 bill, even if error, was harmless since the other competent evidence admitted at trial proved Reed guilty of the charged offense beyond a reasonable doubt.

Next Reed contends that he was denied a fair trial by certain allegedly improper comments made by the prosecutor during closing argument. First, Reed argues that he was unfairly prejudiced when the prosecutor described him as a “businessman” whose “business is selling drugs.” Reed contends that the case was a closely balanced one and that the State unfairly tipped the balance in its favor when it inflamed and influenced the jury with this insinuation, unsupported by the evidence, that Reed was a career drug dealer. Secondly, Reed argues that the prosecutor misstated the law and improperly shifted the burden of proof to him by making comments which implied that in order for the jury to acquit him, the jury would have to believe that the State’s witnesses were lying and involved in a conspiracy.

Initially, the State responds by asserting that Reed has waived review of these alleged errors by failing to make contemporaneous objections to the specified comments during the State’s argument and by failing to raise these matters in his post-trial motion. Defendant does not address the State’s claim of waiver, but repeatedly characterizes the case as a closely balanced “credibility contest.” Thus, Reed would apparently have this court review the matter as plain error. (See People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827 (in closely balanced criminal cases errors not properly preserved may be considered).) In this case, however, we do not find the evidence of defendant’s guilt to be closely balanced.

Our review of the evidence of Reed’s guilt shows it to be substantial. Two police officers testified that they each witnessed what they believed to be a drug exchange between Reed and an unidentified person on the street before deciding to make a street stop. While in the process of driving to Reed’s location, both officers witnessed a third exchange, wherein they actually saw the transfer of money to Reed. The officers also observed Reed drop a bag containing small packets of a substance that later proved to be heroin. Finally, a custodial search revealed that Reed was in possession of $1,300 grouped into $100 bundles. We believe that this evidence overwhelmingly supports defendant’s conviction.

However, even if the alleged errors cited by Reed were not waived, we would not find that reversal of his conviction was warranted. Prosecutors are afforded considerable latitude in closing argument, the scope of which is left largely up to the trial court. (People v. Hawkins (1993), 243 Ill. App. 3d 210.) A prosecutor’s remarks will constitute reversible error only when it can be said that, but for the remarks, the jury may have reached a different result. People v. Lawler (1990), 194 Ill. App. 3d 547, 551 N.E.2d 799.

In the first instance, even if we were to find that the prosecutor’s description of Reed as a businessman dealing in the sale of drugs exceeded the bounds of proper prosecutorial comment and that, as such, it was not a reasonable inference drawn from the evidence, as the State contends, we would have to find that the comment was harmless. In light of the overwhelming evidence presented against Reed, it is highly unlikely that the State’s remarks contributed to Reed’s conviction.

With regard to Reed’s other assertion of improper argument, we acknowledge that a prosecutor may not distort the burden of proof by erroneously instructing the jury on what it must find in order to convict a defendant. (People v. Wilson (1990), 199 Ill. App. 3d 792, 557 N.E.2d 571.) Also, it is clearly a misstatement of law for a prosecutor to incorrectly argue to the jury that it must find that the State’s witnesses were lying in order to acquit the defendant. (People v. Ridley (1990), 199 Ill. App. 3d 487, 557 N.E.2d 378; People v. Pegram (1987), 152 Ill. App. 3d 656, 504 N.E.2d 958.) However, under the circumstances of this case we find that no error occurred.

Defendant, both at trial and on review, continually characterizes the case as a classic credibility contest, recognizing that the State’s case and his defense were completely contradictory. Furthermore, all of the complained-of comments occurred during rebuttal after defense counsel, in his own closing argument, suggested to the jury that police officers are not beyond reproach, that they may be overzealous in their effort to ferret out crime and that they must make arrests in order to get promoted. In fact, defense counsel’s entire argument suggested that the two arresting officers were lying and that the only reason Reed was arrested was to justify an unreasonable stop and search. At one point defense counsel stated: “If you believe the story that police gave you to justify their conduct, then you find my client guilty.”

It was in response to this defense argument that the prosecutor stated in rebuttal that “defendant is telling you that this is a police frame.” The prosecutor then went on to explore the reasonableness of this defense proposition, during the course of which the prosecutor stated:

“If you are going to believe that that’s a police frame, you are going to have to believe that Officer Baez and Officer Chambers work in a district where they have to make up crime and let real drug dealers go free so that they can make arrests and that is absolutely unreasonable.”

Read in context of all the closing statements, both State and defense, we must conclude that the prosecutor’s remark was not error. The prosecutor is entitled to respond to defendant’s argument which attacks his case and witnesses. (People v. Lash (1993), 252 Ill. App. 3d 239.) In this case defense counsel’s entire closing argument attempted to show how and why the State’s witnesses were lying. By doing so, the defense invited the prosecutor to respond in kind. Reed cannot now claim that he was unfairly prejudiced by the comments he so invited.

In his final issue, Reed raises the argument of last resort relied upon by so many defendants when all else fails, i.e., ineffectiveness of trial counsel. Ever since the sixth amendment was applied to the States by the United States Supreme Court, incompetency of counsel has replaced the hacksaw as the favored tool for escape from the prison cell.

In this case, citing to the seminal case of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, defendant contends that his counsel was “grossly and prejudicially incompetent in his representation” thereby denying him of “his constitutional right to the effective assistance of counsel.” Specifically, Reed contends that his trial counsel failed to impeach the two police officers with certain “inconsistencies” in their police report, namely, that they failed to mention in the written police report that they used binoculars, that they failed to note that Reed placed the crumpled $20 bill in his left pocket, that they failed to note that Reed simultaneously put the baggie in his right pocket and that they failed to note that Reed turned away before dropping the bag to the ground.

Reed also contends that he was “ambushed” by the prosecutor’s improper closing remarks which were unobjected to by counsel and that counsel failed to preserve the “most compelling issue in this case: whether the court improperly allowed the admission of a piece of physical evidence [the $20 bill] pursuant to a hopelessly broken chain of custody.” Reed argues that, given the “closeness of this case,” these errors and omissions, individually or cumulatively, “undermined the reliability of the outcome of this case.” Finally, Reed argues that his counsel failed to argue his post-trial motion for new trial.

It is well settled that to advance a claim of ineffectiveness of counsel a defendant must show more than that his counsel committed certain errors. Defendant must show that his attorney’s performance fell below an objective standard of reasonableness, and that, but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) There is a strong presumption that counsel’s conduct fell within the wide range of reasonable conduct. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) Based upon these well-settled principles we must reject defendant’s claim.

Initially we note that defendant’s appellate counsel continually characterizes this case as a closely balanced one, citing the fact that the jury deliberated for nearly four hours before finding Reed guilty as support for this contention. We, however, do not agree that this case was a close call. As explained above, the evidence of defendant’s guilt was considerable.

Secondly, we do not agree that trial counsel’s conduct was faulty because he did not cross-examine the police officers about their failure to include various details of Reed’s arrest in their written report. The “omissions” in the police report alleged by defendant do not amount to “inconsistencies” which needed to be pointed out to the jury by trial counsel. A police report is meant to be a summary, not a blow-by-blow chronology of what occurred.

In addition, as discussed earlier, the $20 bill was not nearly the key piece of evidence that appellate counsel would have this court believe, so that trial counsel’s failure to object to the admission of this evidence in the post-trial motion did not prejudice the outcome of Reed’s case in any way. Finally, the record shows that on October 29, 1991, defendant’s counsel did bring the post-trial motion to the court’s attention, albeit without argument from either side, and the motion was denied.

For all the reasons stated above, we find that Gerald Reed was not denied a fair trial. We affirm Reed’s jury conviction and sentence on the charge of possession of a controlled substance with the intent to deliver.

Affirmed.

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

      ‘Baez’s testimony does not reveal who or what an “IRPS” officer is. However, it is this court’s belief that reference is being made to the “inventory (or evidence) and recovered property section” of the police department.


author: JUSTICE GIANNIS

text:
    DANIEL R. ZINCORIS, Plaintiff-Appellant, v. HOBART BROTHERS COMPANY et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—92—0482
    Opinion filed March 12, 1993.
    Rehearing denied April 14, 1993.

      Laird M. Ozmon, Ltd., of Joliet (Laird M. Ozmon and James P. Stevenson, of counsel), for appellant.
    Heineke, Burke, Healy & Bodach, of Chicago (Steven M. Mahoney, of counsel), for appellee Hobart Brothers Company (of Ohio).
    Paulsen & Kane, of Chicago (Michael B. Kane and Harvey A. Paulsen, of counsel), for appellee Hobart North Welding Supply, Inc.
   JUSTICE GIANNIS

delivered the opinion of the court:

Plaintiff sought recovery from defendants Hobart Brothers Company (hereinafter Hobart Ohio), Hobart Corporation (hereinafter Hobart Illinois), and Hobart North Welding Supply, Inc. (hereinafter Hobart North), for personal injuries sustained while he used a welding device during the course of his employment. The court dismissed with prejudice plaintiff’s claims against defendant Hobart North because they were not brought within the applicable limitations period. The court also dismissed with prejudice plaintiff’s claims against defendant Hobart Ohio for lack of diligence in effecting service of process. Plaintiff has appealed the dismissal of his claims against both of these defendants.

The record reflects that plaintiff was injured on August 2, 1988, while he used a welding device during the course of his employment with Western Architectural Iron Co. Plaintiff initially brought suit on November 10, 1988, against Hobart Ohio, the manufacturer of the welding device, and against Hobart Illinois, the distributor of the device. The complaint asserted that both of these defendants were strictly liable for plaintiff’s injuries based upon defects in the design and the manufacture of the welding device.

When the complaint was filed, plaintiff caused a summons to be issued which reflected names and addresses for both of these defendants. According to this summons, Hobart Illinois was to be served at 5439 W. Diversey in Chicago, Illinois. Hobart Ohio was to be served through its agent, Richard Berry, at 600 W. Main Street in Troy, Ohio. The record includes one return of service which indicates that on November 28, 1988, the deputy sheriff served Hobart Illinois at 5439 W Diversey in Chicago, Illinois, by leaving a copy of the summons and complaint with an “authorized person.” The record contains no evidence that the original summons and complaint were ever served on Hobart Ohio or that plaintiff even attempted service on this defendant.

On November 14, 1988, plaintiff brought a motion to compel discovery which requested that his expert be permitted to inspect the welding device and all relevant records and documents. On December 1, 1988, the trial court granted plaintiff’s motion and entered an order requiring plaintiff’s employer, Western Architectural Iron Co., and Hobart Illinois to produce the welding device for inspection by plaintiff’s expert. The court ordered further that all documentation of rental or sale and all records of use and maintenance be produced.

Thereafter, counsel for Hobart North sent a letter dated December 30, 1988, to plaintiff’s attorney which stated in relevant part:

“I have been retained to represent Hobart-North Welding Supply, Inc. My client has been served with summons and complaint in the [instant cause]. However, my client is not a named defendant in the lawsuit nor is it the agent of any of the named defendants for service of summons and complaint.

* * *

I can not at this time enter an appearance in the [instant action] inasmuch as my client is not a named defendant.”

On October 24, 1990, plaintiff was granted leave to file an amended complaint which named as an additional defendant Hobart North. Plaintiff’s complaint, as finally amended, included allegations of strict liability in tort against Hobart Ohio and Hobart Illinois, the manufacturer and the distributor of the welding device. The complaint also asserted negligence and strict liability in tort against Hobart North, the entity which rented the welding device to the plaintiff’s employer. The amended complaint also alleged a claim against Hobart North for breach of implied warranty under the Uniform Commercial Code.

On November 20, 1990, a summons was issued against Hobart North. The summons indicated that Hobart North was to be served through John A. Mors at 5439 W. Diversey in Chicago, Illinois. The record includes a return of service which indicates that on November 27, 1990, the deputy sheriff served Hobart North at 5439 W. Diversey by leaving a copy of the summons and amended complaint with an “agent.”

On December 18, 1990, Hobart North filed a section 2 — 619 motion to dismiss the amended complaint, contending that plaintiff’s claims against it were barred because they were not brought within the applicable limitations period. Plaintiff’s response to the motion to dismiss asserted that his claims against Hobart North were not barred. Plaintiff premised his argument on section 2 — 616 of the Code of Civil Procedure, which provides that a cause of action against a person not originally named is not barred by lapse of time if certain terms and conditions are met. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 616(d).) Plaintiff asserted that all of the conditions mandated by the statute had been satisfied, and he should be permitted to proceed with his claims against Hobart North.

Attached to plaintiff’s response to the motion to dismiss was a copy of the December 30, 1988, letter from Hobart North’s attorney. Hobart North’s motion to dismiss was taken under advisement and ultimately granted by the trial court. In granting this motion, the court found that the plaintiff’s failure to join Hobart North within the limitations period could not be deemed inadvertent.

On March 22, 1991, plaintiff caused an alias summons to be issued against Hobart Ohio. This alias summons indicated that Hobart Ohio was to be served through its registered agent, Richard Berry, at 600 W. Main Street in Troy, Ohio. Thus, the alias summons was directed to the same registered agent and at the same address as the original summons, which was issued November 11, 1988. The alias summons was served on Hobart Ohio on April 10,1991.

On June 5, 1991, Hobart Ohio filed a motion to dismiss pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), contending that plaintiff had failed to exercise reasonable diligence in effecting service of process upon this defendant. The trial court rejected the arguments raised by plaintiff in opposition to this motion and found that plaintiff had failed to exercise reasonable diligence in serving Hobart Ohio. Accordingly, the court dismissed with prejudice plaintiff’s claim against Hobart Ohio.

Plaintiff has appealed the trial court’s dismissal with prejudice of his claims against Hobart North and Hobart Ohio.

We initially address plaintiff’s contention that the trial court erred in granting the section 2 — 619(a)(5) motion to dismiss filed by defendant Hobart North.

In its motion to dismiss, Hobart North argued that because plaintiff failed to assert his claims against this defendant until October 24, 1990, well after the two-year limitations period had expired, he was barred from doing so. The trial court agreed and dismissed plaintiff’s claims against Hobart North with prejudice.

In support of plaintiff’s contention that the trial court erred in dismissing his claims against Hobart North, he asserts that although these claims were not brought until after the limitations period had expired, he should have been permitted to proceed with his amended complaint under section 2 — 616(d) of the Code of Civil Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616(d).

Section 2 — 616(d) provides that even though the limitations period has expired, an amendment adding a new defendant may relate back to the date of the filing of the original pleading where certain terms and conditions have been satisfied. Those terms and conditions include (1) the statute of limitations had not expired when the original action was commenced; (2) the failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another; (4) the person, within the limitations period, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616(d).

In the instant case, the first, third, fourth, and fifth requirements have been satisfied. The original complaint was filed on November 10, 1988, just over three months after plaintiff’s injury and well within the two-year limitations period. Hobart North was served, albeit incorrectly, as agent of Hobart Illinois and was aware of the original action, as evidenced by the letter of December 30, 1988, from counsel for Hobart North. Moreover, the plaintiff’s claims against all of the defendants were predicated upon the injuries he sustained while using the welding device rented to his employer. Thus, we must determine whether plaintiff has satisfied the second requirement set forth in section 2 — 616(d).

Under this statutory requirement, the plaintiff must establish that the failure to join Hobart North as a defendant was inadvertent. “Inadvertence” has been defined as excusable ignorance, not excusable failure to act after the facts are discovered, and it does not include the failure to act appropriately where the defendant’s true identity is known by the plaintiff. (Newey v. Newey (1991), 215 Ill. App. 3d 993, 998, 576 N.E.2d 137; Yedor v. Centre Properties, Inc. (1988), 173 Ill. App. 3d 132, 139, 527 N.E.2d 414.) Ignorance, as contemplated by section 2 — 616(d), encompasses a lack of knowledge of the identity or existence of a defendant. (Newey, 215 Ill. App. 3d at 998; Greig v. Griff el (1977), 49 Ill. App. 3d 829, 833, 364 N.E.2d 660.) Where a plaintiff has been made aware of the identity of a defendant before the period of limitations has run, but does not amend his complaint to add that defendant until after the statute has run, the failure to join that defendant will not be considered inadvertent. Newey, 215 Ill. App. 3d at 998; Behr v. Club Med, Inc. (1989), 190 Ill. App. 3d 396, 546 N.E.2d 751; Morse v. Michaelson, Rabig & Ramp (1968), 101 Ill. App. 2d 366, 243 N.E.2d 271.

Plaintiff contends that his failure to join Hobart North was inadvertent. This contention is not, however, supported by the record.

In his letter dated December 30, 1988, counsel for Hobart North informed plaintiff’s attorney that Hobart North had not been joined as a party. This letter very clearly put plaintiff’s counsel on notice that Hobart North would have to be joined as a defendant if plaintiff desired to assert any claims against it. Plaintiff made no effort to join Hobart North after this letter was received.

Sometime thereafter, plaintiff retained new counsel, who filed a motion for leave to substitute attorneys on July 10, 1989. This motion, apparently abandoned by plaintiff’s new attorney, was never ruled upon by the court. More than 11 months later, plaintiff’s new counsel again filed a motion for leave to substitute attorneys. This motion was granted, and plaintiff’s new counsel filed his appearance on August 27, 1990. The record reflects, however, that plaintiff’s second attorney filed an amended complaint on August 2, 1990. This amended complaint was filed without leave of court and 25 days before the new counsel had been granted leave to substitute as attorney for plaintiff. On October 24, 1990, plaintiff was granted leave to amend his complaint, and Hobart North was joined as a defendant on that date. We find that the record indicates that plaintiff was aware of the existence and identity of Hobart North as early as December 1988, but this defendant was not joined until October 1990, more than two months after the statute of limitations had expired. This conduct cannot be characterized as inadvertent.

Moreover, the fact that businesses or individuals choose to set up different entities to conduct their affairs will not necessarily lead to a finding of inadvertence. (Newey, 215 Ill. App. 3d at 999; Behr, 190 Ill. App. 3d at 406.) Accordingly, contrary to plaintiff’s argument, the failure to join Hobart North will not be deemed inadvertent merely because the other two defendants had similar names. The letter of December 30, 1988, very clearly informed plaintiff’s counsel that Hobart North was a separate and distinct entity which had not been made a party to the litigation. Thus, any possible confusion as to the corporate entities involved was eliminated as of December 30, 1988, and plaintiff had at least 18 months in which to name and serve Hobart North.

Based upon this record, we hold that the trial court correctly concluded that the failure to join Hobart North was not inadvertent and that the court did not abuse its discretion in granting Hobart North’s section 2 — 619(a)(5) motion to dismiss.

We next consider whether the trial court abused its discretion in dismissing plaintiff’s claim against Hobart Ohio pursuant to Supreme Court Rule 103(b) for lack of diligence in service of process.

Supreme Court Rule 103(b) provides as follows:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” 134 Ill. 2d R. 103(b).

The purpose of this rule is to promote the expeditious handling of suits by giving trial courts wide discretion to dismiss when service is not effected with reasonable diligence. (Segal v. Sacco (1990), 136 Ill. 2d 282, 285-86, 555 N.E.2d 719.) This rule protects defendants from unnecessary delays in the service of process and prevents the circumvention of statutes of limitation. (Segal, 136 Ill. 2d at 286; Hanna v. Kelly (1980), 91 Ill. App. 3d 896, 901, 414 N.E.2d 1262.) Yet, this rule is not based upon the subjective test of plaintiffs intent but rather upon the objective test of reasonable diligence in effecting service. (Jones v. Shallow (1990), 201 Ill. App. 3d 594, 596, 559 N.E.2d 128; Paglis v. Black (1989), 178 Ill. App. 3d 1062, 1064, 534 N.E.2d 206; Phifer v. Hayes (1974), 20 Ill. App. 3d 635, 639, 314 N.E.2d 473.) The burden is on the plaintiff to show that he has exercised reasonable diligence to obtain service (Segal, 136 Ill. 2d at 286; Alsobrook v. Cote (1971), 133 Ill. App. 2d 261, 264, 273 N.E.2d 270), and the defendant need not establish that he has been prejudiced by the delay (Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 291, 492 N.E.2d 1; Greenwood v. Blondell (1980), 85 Ill. App. 3d 186, 188, 406 N.E.2d 204). The plaintiffs diligence must be established factually, by affidavit in conformity with the rules of evidence. Mayoral v. Williams (1991), 219 Ill. App. 3d 365, 370, 579 N.E.2d 1196.

Although each case must be decided on its own particular facts and circumstances, the factors a court may consider in entering a dismissal under Rule 103(b) include (1) the amount of time taken to obtain service; (2) the efforts of the plaintiff; (3) plaintiff’s knowledge of the defendant’s location; (4) the ease with which defendant’s location could have been determined; (5) actual knowledge by the defendant of the pendency of the action as a result of ineffective service; (6) special circumstances affecting plaintiff’s efforts; and (7) actual service on defendant. (Segal, 136 Ill. 2d at 287; Gatto, 142 Ill. App. 3d at 288; Greenwood, 85 Ill. App. 3d at 188-89.) Dismissal under Rule 103(b) is within the sound discretion of the trial court, and the court’s judgment will not be disturbed absent an abuse of discretion. Segal, 136 Ill. 2d at 286; Viking Dodge, Inc. v. Hofmann (1987), 161 Ill. App. 3d 186,188, 514 N.E.2d 248; Gatto, 142 Ill. App. 3d at 288.

Review of the record in the instant case reveals that Hobart Ohio was named as a party to the action on November 10, 1988, but was not served until April 10, 1991. Thus, this defendant was not served until 29 months after the filing of the complaint and over eight months after the expiration of the statute of limitations. Plaintiff could have easily served this defendant through an agent in Ohio or through its registered agent in Illinois, which was published in the listing provided by the Secretary of State of Illinois. Yet, the record indicates that plaintiff took absolutely no action to effect service on Hobart Ohio between November 1988 and March 1991. The fact that Hobart Ohio was available and amenable to service is evidenced by the ease with which plaintiff ultimately served that corporation in April 1991. Contrary to plaintiff’s assertion, the record does not indicate that Hobart Ohio had been ineffectively served through an agent in Illinois. Indeed, the December 30, 1988, letter from counsel for Hobart North clearly stated that his client was not an agent for either of the other two defendants. Moreover, the plaintiff failed to present any evidence to establish that Hobart Ohio had actual knowledge of the pendency of the litigation.

A party to a lawsuit has a nondelegable duty to take all necessary steps to bring his case to a prompt conclusion. (Schusterman v. Northwestern Medical Faculty Foundation (1990), 195 Ill. App. 3d 632, 639, 552 N.E.2d 1178.) In the instant case, plaintiff was obligated to have the summons issued against Hobart Ohio and to have it served promptly. Plaintiff’s failure to obtain proper service of process upon this defendant until 29 months after the complaint was filed shows a lack of due diligence. (See Schusterman, 195 Ill. App. 3d at 639; Penrod v. Sears, Roebuck & Co. (1986), 150 Ill. App. 3d 125, 129, 501 N.E.2d 367.) The fact that plaintiff served Hobart Ohio in April 1991 without any difficulty demonstrated that this defendant was available and amenable to service at an earlier date, if plaintiff had been diligent in effecting it. In the absence of a satisfactory explanation, the delay in effecting service on Hobart Ohio was clearly unreasonable. (Gatto, 142 Ill. App. 3d at 288.) Hobart Ohio was under no obligation to show that it had been prejudiced by the delay in service. (Gatto, 142 Ill. App. 3d at 291; Greenwood, 85 Ill. App. 3d at 188.) Although controversies should ordinarily be resolved on their merits after both sides have had their day in court, the plaintiff may not complain where the dismissal resulted from his own lack of diligence in effecting service. Montero v. University of Illinois Hospital (1978), 57 Ill. App. 3d 206, 210-11, 372 N.E.2d 1010.

We hold that in light of the passage of time, plaintiff’s inactivity, his knowledge of the defendant’s location, and the ease with which service could have been accomplished, the trial court’s dismissal of plaintiff’s claims against Hobart Ohio was not an abuse of discretion.

For the foregoing reasons, the orders of the circuit court of Cook County are affirmed.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.