author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Enoch Silverstein et al., Defendants-Appellees.
    (Nos. 58836-47 cons.;
    First District (4th Division)
    May 22, 1974.

      Rehearing denied June 11, 1974.

      William. J. Scott, Attorney General, of Chicago (James B. Zagel and Thomas E. Holum, Assistant Attorneys General, of counsel), for the People.
    Joseph A. Lamendella and Eugene F. LaPorte, both of Chicago (Schippers, Betar, Lamendella & O’Brien, of counsel), for appellees.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendants-appellees were charged on December 30, 1971, with a failure to file use tax returns and with filing fraudulent retailer’s occupation tax returns (Ill. Rev. Stat. 1971, ch. 120, pars. 439.14 and par. 452). There were six complaints filed against each of the defendants. On May 24, 1972, the defendants filed a motion to dismiss which was granted by the trial court on January 25, 1973. This appeal arises from the dismissal of all the complaints.

The defendants’ motion to dismiss alleged, inter alia, that “Prosecution, personnel advised a person having relevant material and information to refrain from discussing the case with defense counsel.” The motion to dismiss was supported by an affidavit of the defendants’ attorney in which he stated that on approximately April 7, 1972, he had. a telephone conversation with Jack Kleinman, an auditor of the Illinois Department of Revenue. Mr. Kleinman had engaged in audit activities concerning the subject matter of the defendants’ prosecution and the defendants’ attorney asked Mr. Kleinman to discuss all matters within his knowledge concerning the prosecution. The defendants’ attorney further stated that later the same day he received a call from Kleinman in which Kleinman stated that he had spoken with Phillip Mitchell, the Chief of the Intelligence Division of the Illinois Department of Revenue, and that Mitchell told Kleinman that Kleinman could not speak to the defense , counsel.

The State did not file a response to the defendants’ motion to dismiss until January 11, 1973. In its response the State admitted that Mitchell had told Kleinman not to discuss the prosecution with defense counsel. However, Mitchell upon advice by the Attorney General’s office, subsequently told Kleinman he could discuss the case with defense counsel if he chose to do so. Attached to the State’s response was an affidavit of Mr. Mitchell dated January 9, 1973. In the affidavit Mitchell stated that in April of 1972 he told Kleinman not to discuss the case with defendant’s attorney but later rescinded this instruction and told Kleinman he was free to discuss the case with defense counsel or the defendants if he chose to do so.

A hearing on the motion to dismiss was held on January 25, 1973. At the hearing Mr. Mitchell testified that in the early summer of 1972 the assistant Attorney General prosecuting the case spoke to him concerning the validity of the instructions he had given Kleinman. Mitchell stated that he did not speak to Kleinman again until several days before January 9, 1973 at which time he told Kleinman he could discuss the case with defense counsel if he wished to. Several times during the hearing the trial court made specific reference to and was very concerned about the long lapse of time between the date the motion to dismiss was filed and the date on which an error in instructing Kleinman had been admitted. The trial court stated:

“But when it is this long and the attorneys are on the trial call, that this is a trial call and we can pursue this on any date that the case comes up for trial, I don’t know why this mistake should be allowed to go ahead. That is, should be sanctions in anything short of dismissal.”

After arguments on the motion to dismiss were completed, the trial court dismissed all the complaints. The court specifically relied on the ease of Gregory v. United States, 369 F.2d 185, 1966, and stated that it was dismissing the case on the constitutional points contained therein. The State has appealed and contends that the dismissal order is erroneous because it is not based on one of the 10 grounds set forth in section 114 — 1(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 1(a)). The State also contends the trial court erred in dismissing the complaints because any error was cured by the State giving proper instructions to Mr. Kleinman before the case was placed on the trial call. We do not agree and are of the opinion that under the particular facts existing in this case the trial court did not err in dismissing all of tire complaints.

The Gregory case on which the trial court relied involved a criminal prosecution for murder, robbery and assault with a dangerous weapon. In that case the prosecutor had instructed the prosecution witnesses not to talk to anyone unless he was present. The defendant was convicted on all counts but on appeal the United States Court of Appeals (Dist. of Columbia) found that the prosecutor’s advice denied the defendant a fair trial and reversed and remanded the case for a new trial. The court stated at 187 to 188:

“The purpose of 18 U.S.C. § 3432 requiring that in capital cases the defendant be furnished a list of the names and addresses of the witnesses to be called by the Government is to assist defense counsel in preparing the defense by interviewing the witnesses. Witnesses, particularly eye witnesses, to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them. Here the defendant was denied that opportunity which, not only the statute, but elemental fairness and due process required that he have.”

The court went on to state:

“A criminal trial, like its civil counterpart, is a quest for truth. That quest will more often be successful if both sides have an equal opportunity to interview the persons who have the information from which the truth may be determined. The current tendency in the criminal law is in the direction of discovery of the facts before the trial and elimination of surprise at trial. A related development in the criminal law is the requirement that the prosecution not frustrate the defense in the preparation of its case. Information favorable to the defense must be made available to the defense. Brady v. State of Maryland, 373 U.S. 83, S.Ct. 1194, 10 L.Ed.2d 215 (1963) * * * It is not suggested here that there was any direct suppression of evidence. But there was unquestionably a suppression of the means by which the defense could obtain evidence. The defense could not know what the eye witnesses to the events in suit were to testify to or how firm they were in their testimony unless defense counsel was provided a fair opportunity for interview. In our judgment the prosecutor’s advice to these eye witnesses frustrated that effort and denied appellant a fair trial.’’ (Gregory, supra, at 188 to 189.)

The trial court stated that its decision was premised on the constitutional points raised in Gregory and it is clear from the language quoted above that the constitutional point relied on by the trial court was the defendants’ right to due process of law.

The defendants’ right to due process of law is guaranteed by the Illinois Constitution of 1970, article I, § 2 and the fourteenth amendment to the United States Constitution. It cannot be controverted that within the concept of due process of law is a defendant’s right to a fair trial. We are of the opinion that under the particular circumstances of the case at bar a fair trial could not be achieved and therefore, the trial court was correct in dismissing all the complaints.

It is well established that the prosecution cannot direct witnesses not to speak to a defendant or his attorney or in any other manner deprive the defense of a fair opportunity to interview prosecution witnesses. (People v. Jackson, 116 Ill.App.2d 304, 253 N.E.2d 527 (1969).) Thus, the initial instructions given to Mr. Kleinman were erroneous and had been in effect for approximately 8 months before the State saw fit to file a response to the defendants’ motion to dismiss and attach thereto the affidavit of Mr. Mitchell in which he stated the erroneous instruction had been subsequently rescinded. As stated previously, at the hearing on the motion to dismiss, Mitchell testified that his erroneous instructions to Kleinman were rescinded several days prior to January 9, 1973. Therefore, it is apparent that the defendants had been denied access to Klein-man and the information he possessed for several months. The situation in the case at bar is analogous to the Gregory case in that one of the means by which the defense could obtain evidence had been suppressed. Indeed the situation in the case at bar is more serious than in Gregory because in Gregory the witness had been told not to discuss the case unless the prosecutor was present while in the instant controversy, the witness was told not to discuss the case at all. As stated in People v. Hambleton, 399 Ill. 388, at 393, 78 N.E.2d 293, at 296 (1948), “A defendant in every criminal case is entitled, under the law, to a reasonable time and full opportunity to prepare for his trial, and that right is one guaranteed to him by the constitution.” (Emphasis added.) The defendants in the case at bar were denied the full opportunity to prepare for their trial by the erroneous instructions given by Mitchell to Kleinman.

The Illinois Code of Criminal Procedure states that “On motion of the defendant the court shall order the State to furnish the defense with a list of prosecution witnesses and their last known addresses, * * *." (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 9(a).) “The purpose of the requirement that a list of witnesses shall be furnished the defendant is to prevent surprise and afford an opportunity to combat false testimony.” (People v. Quevreaux, 407 Ill. 176, at 183 to 184, 95 N.E.2d 62, at 67 (1950).) The fair import of this provision is to allow the defense an opportunity to seek to discuss the case with the prosecution witnesses and obtain from them material and relevant information. In People v. Moses, 11 Ill.2d 84, at 89, 142 N.E.2d 1, at 3 to 4 (1957), the court quoting Judge Cooley stated, “The State has no interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons.’ (People v. Davis, 52 Mich. 569, 573.)” The list of prosecution witnesses provided by the State to the defense in the case at bar included the name and address of Mr. Kleinman but the erroneous instruction given by Mitchell to Kleinman amounted to an obstacle interposed by the State to the disclosure of facts. This obstacle and the long duration of time it was permitted to exist made it impossible for the defendants to receive a fair trial.

The State attempts to exculpate itself from the situation by stating that the erroneous instruction had been rescinded. It is true that Klein-man was told approximately 8 months after the erroneous instruction had been given that he could discuss the case with the defendants or their counsel if he chose to do so. The law is that a witness is not required to speak to the defense and the prosecuting attorney can so inform him. (People v. Jackson, supra.) However, courts do not decide cases in a vacuum and must be aware and take account of the practical realities of the situations presented to them. In the case at bar the erroneous instruction had been outstanding for approximately 8 months before it was rescinded and it would be a test of credulity to say that after 8 months of being told by his employer not to discuss the case Kleinman would readily speak to the defense. It is more probable that Kleinman would continue in Ms refusal to speak to the defendants’ attorney in order to comply with the obvious wishes of his employer and avoid conflict with his supervisor.

It is important to note that the prosecuting attorney at the heáring on the motion to dismiss in regards to Kleinman choosing or not' choosing to speak to the defense stated that the prosecution took no stand whatsoever in the matter. Under the circumstances of his case where an erroneous instruction to a witness had been outstanding for such a long period, the prosecution could have offered to use its influence and recommend to Kleinman that he speak with the defense. Such an offer would not have been improper but on the contrary would have been a good-faith effort to correct an errant situation and afford fairness to the defendants and full opportunity to prepare their defense. The trial court could not compel or order Kleinman to speak to the defense. (People v. Jackson, supra.) When a trial court is confronted with the fact that an erroneous instruction has been given to a witness and allowed to stand for such a long period of time as in the cáse at bar so as to deny a defendant a full opportunity to prepare his defens'é and make a fair trial impossible, it is within the power and authority of the trial court and entirely proper for it to dismiss the prosecution.

The State also contends that the trial court erred in dismissing all of the complaints because the court’s rationale for doing so was not one of the ten grounds listed in the statutory provision for a motion to dismiss the charge. (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 1(a) (1) to (10).) It is the contention of the State that the grounds listed in the statute are the exclusive grounds upon which a charge can be dismissed. While this court is cognizant of the cases of People v. Shick, 101 Ill.App.2d 377, 243 N.E.2d 285 (1968); People v. Barksdale, 110 Ill.App.2d 163, 249 N.E.2d 165 (1969) and People v. Long, 126 Ill.App.2d 103, 261 N.E.2d 437 (1970), which have all held that the only grounds upon which a defendant can be discharged without a trial are those contained in the statutory provision, none of those cases involved the unique and particular factual situation presented in the case at bar.

A trial court has the inherent authority to insure that a defendant receives a fair trial. (People v. Endress, 106 Ill.App.2d 217, 245 N.E.2d 26 (1969).) Under the circumstances existing in the case at bar, the trial court perceived that the defendants could not receive a fair trial and thus in these particular circumstances it was appropriate and within the trial court’s authority to dismiss the complaints although the case did not come within the confines of section 114 — 1(a) of our Code of Criminal Procedures. The erroneous instruction to Mr. Kleinman and the long period of time it was permitted to remain outstanding was a suppression of a means by which the defense could obtain evidence and constituted a denial of due process of law in that it made a fair trial impossible. Courts are not required to engage in futile or useless acts and to proceed to trial under the circumstances existing in the instant controversy would have been such an act. The errant situation in the case at bar had not been rectified and the trial court knew that as a practical matter it could not be. Therefore, in order to avoid a deprivation of the defendants’ constitutional right to due process of law it dismissed all of the complaints. We are of the opinion that under the facts in this case the trial court’s dismissal of the complaints was proper and within its power and authority.

For the reasons herein stated the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

DIERINGER and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE JOHNSON

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Feed Ward, Defendant-Appellant.
    (No. 58948;
    First District (4th Division)
    May 22, 1974.

      Paul Bradley, Kenneth L. Jones, and Margaret Maxwell, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and Edward J. Ozog, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

The defendant, Fred Ward, was charged by indictment with the murder of Thomas Brown, age 14. In a bench trial, he was found guilty and sentenced to a term of 14 to 22 years in the penitentiary.

On appeal, defendant presents the following issues for review:

(1) Whether the finding that he was sane at the time of the offense should be set aside;

(2) Whether a psychiatric report which gave an opinion of the defendant’s sanity was properly admitted into evidence;

(3) Whether the. trial court erred in excluding testimony offered by the defendant to support his defense of insanity.

At trial, Otis Diggins and Cornelius Wright were called by the State to testify concerning the incident which led to defendant’s arrest. The testimony of both witnesses was identical in all material respects and may be summarized as follows. At approximately 3 P.M. on March 18, 1970, Diggins and Wright were walking down 44th Street when they saw a man, later identified as Fred Ward. Diggins testified that when Ward was about 20 feet away from them, he saw defendant pick up a stick from a yard. According to Diggins, Ward continued to advance toward them, grabbed him by the collar and asked if he were a member of “P Stone.” When Diggins replied that he was not, defendant tried to hit him. The witness avoided the blow and ran away.

Cornelius Wright testified that he was walking with Diggins after school on March 18, 1970, when he saw the defendant fighting with Eric Weatherspoon on 44th Street. When the fight ended, Diggins and Wright continued walking in that direction. According to Wright, defendant then picked up a one-by-one club and approached Diggins. Defendant grabbed Diggins by the collar and asked whether he was a member of the “Black Stones.” Diggins answered “no” and, after a moment, defendant turned and swung at Wright with the stick.

Both Diggins and Wright testified that defendant then walked down the street, approached another young boy and struck him with the stick. Wright testified that defendant then crossed the street and attempted to strike another young boy. Diggins watched defendant cross from side to side of the street, hitting people on the head. Defendant then approached the deceased, Thomas Brown. Brown was standing on the street with a girl. Defendant struck Brown on the head. When Brown fell to the ground, defendant hit him three or four more times and then walked away. Neither Diggins nor Wright heard defendant say anything to Brown.

The defense attempted to ask Otis Diggins if it appeared to him that defendant was acting as if he were “crazy.” The court, however, sustained the State’s objection to the question.

Diggins and Wright testified that they helped get Thomas Brown to the hospital. Simon Brown, the father of the deceased, testified that he received a call from the hospital that Thomas was dead. Brown testified further that his son, Thomas, was 14 years old and a high school student at the time of the occurrence.

Mrs. Mamie Ward, the defendant’s mother, testified on his behalf. She stated that the defendant was the oldest of five children and that he lived with her at the time of the offense. Mrs. Ward testified further that Fred “did not have a father”, but had been close to his maternal grandfather. When defendant was 4 years old, his grandfather died. According to Mrs. Ward, Fred would look for his grandfather at night and run off calling his name.

Mrs, Ward testified further that Fred never had any friends and would not play with his brothers and sisters. He preferred to stay in his room alone. Sometimes he had temper tantrums and would not talk to his mother. Mrs.' Ward stated that when Fred was about 5 years old, he began to have seizures during which he would break out, foam at the mouth, and turn “real white.” The seizures lasted 2 or 3 minutes, and occurred about twice a month. According to Mrs. Ward, Fred’s last seizure occurred in 1963.

Mrs. Ward stated that Fred was sent to the Audy Home for “ditching school” in 1962 or 1963. Subsequently, he was transferred to St. Charles and to Chester for reasons she did not know. When Fred returned from Chester in 1967, a doctor told Mrs. Ward that he may have suffered a nervous breakdown and would have to receive electric shock treatments.

The defense then called Dr. Jeffrey Garfield, a clinical psychologist. Dr. Garfield testified that he administered the verbal section of the Wechsler Adult Intelligence Test (WAIT) to the defendant on June 25,, 1970, and found him to have an IQ of 69. According to Dr. Garfield, the defendant exhibited signs of basic mistrust, inability to relate significantly and to manage his affairs. Based upon observation of defendant and a history later received from defendant’s mother, Dr. Garfield concluded that Fred did not know the difference between right and wrong. The doctor diagnosed defendant’s condition as a chronic paranoid schizophrenic who was also mentally defective.

The defendant, Fred Ward, took the witness stand in his own behalf. He testified that he was born in Tennessee on June 14, 1949, and that his attorney in the present case was Michael A. Unger. Defendant stated that he had talked to Mr. Unger about taking the stand, and he knew that he would testify in his own behalf although he did not know what questions would be asked. He denied hitting the deceased over the head with a board, indicating that he had been at home on the day of the occurrence. He stated that he completed eighth grade, indicating that school was “alright.” Ward testified further that he was in the County Jail for about 32 months and had been in jail three previous times, twice for armed robbery and once for robbery.

In rebuttal, the State called Dr. Edward J. Kelleher, director of the Psychiatric Institute of the Circuit Court of Cook County, who examined the defendant on September 22, 1971. Dr. Kellehér reported that defendant’s score on the WAIT was 75, which indicates an individual of “borderline” intelligence. Because of defendant’s history of epileptic seizures, he was given an eléctfo-encephalogram (EEC). The EEC showed an absence of brain damage.

According to Dr. Kelleher, the defendant exhibited no signs of mental illness. The doctor stated that defendant responded to his questions and was in touch with reality. When asked about the circumstances which led to his arrest, the defendant stated that there was a fight and a young fellow was killed wih a stick or a club. Defendant denied committing the offense, stating that a friend of his did it. Based upon the examination of defendant and a review of his history, Dr. Kelleher concluded that defendant was competent to stand trial because he fully understood the nature of the charges pending against him and was able to cooperate with his counsel.

Dr. Kelleher testified further that he supervised a prior examination of defendant made by Dr. Robert A. Reifman, the assistant director of the psychiatric institute. Over defense objections, the court permitted Dr. Kelleher to read the report of Dr. Reifman. It indicated that, in Dr. Reifman’s opinion, defendant was legally sane at the time of the offense.

On appeal, defendant contends that the State did not prove beyond a reasonable doubt that he was sane at the time of the offense. He argues that the evidence presented by the defense was convincing proof of insanity and was not overcome by the States presentation of a psychiatric report to the contrary.

A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. (Ill. Rev. Stat. 1971, ch. 38, par. 6 — 2.) Once evidence of insanity is introduced, the ordinary presumption of sanity does not prevail and the burden devolves on the State to prove that the accused was sane at the time of committing the act. People v. Le May (1966), 35 Ill.2d 208, 211, 220 N.E.2d 184, 186; People v. Count (1969), 106 Ill.App.2d 258, 262, 246 N.E.2d 91, 93.

In the instant case, the evidence of insanity consisted of the bizarre nature of the crime itself, testimony of defendant’s mother concerning his past history, and the testimony of a psychologist who examined the defendant three months after the offense was committed. In rebuttal, the State presented testimony concerning the contents of a psychiatric report which concluded that defendant was legally sane at the time of the offense. The trial court, in finding defendant guilty of murder, concluded that defendant was sane at the time of the offense.

The determination of the defendant’s mental condition at the time of an offense is a question of fact to be determined by the trier of fact. (People v. Ford (1968), 39 Ill.2d 318, 320, 235 N.E.2d 576, 578.) Its finding will not be disturbed on review unless it indicates passion or prejudice. People v. Ford (1968), 39 Ill.2d 318, 321, 235 N.E.2d 576, 578; People v. Lassiter (1971), 133 Ill.App.2d 353, 356, 273 N.E.2d 166, 168.

We feel that the evidence in this case was sufficient to support the trial court’s finding that defendant was sane at the time of the occurrence. The State presented evidence attesting to his sanity although defense witnesses testified to the contrary. The resolution of the contradictory testimony and the determination of the weight and credibility of such testimony was for the trier of fact to decide. (People v. Count (1969), 106 Ill.App.2d 258, 263, 246 N.E.2d 91, 94.) The trial court' observed the demeanor and behavior of all of the witnesses, including the defendant who testified in his own behalf. In our Judgment, there is sufficient evidence in the record to support the trial Judge’s finding that defendant was sane at the time of the offense.

Secondly, defendant contends that he was denied his constitutional right to cross-examine a witness when the report of an examining psychiatrist who was not called to testify was admitted. The report to which defendant refers was written by Dr. Robert A. Reifman, assistant director of the Psychiatric Institute, under the supervision of the director, Dr. Edward J. Kelleher. Dr. Reifman examined the defendant and found him sane at the time of the offense. At trial, the court permitted Dr. Kelleher to state the opinion expressed by Dr. Reifman in the report that defendant was sane at the time of the offense. Since Dr. Reifman was not himself called as a witness, defendant contends he was denied his constitutional right to cross-exaimne Dr. Reifman as to the report.

In our opinion, the defendant was not denied his constitutional right of confrontation. We believe that the report signed by Dr. Reifman was a staff report reflecting the official opinion of the Psychiatric Institute. Dr. Kelleher, as chief of staff of the Psychiatric Institute, appropriately testified regarding the official opinion rendered by his subordinates and at his direction. Since the report was made under the direction and supervision of Dr. Kelleher, he was fully capable of testifying to the matters in the report and was available for cross-examination on the report. A similar conclusion was reached by the Fifth Circuit Court of Appeals in United States v. Davila-Nater (1973), 474 F.2d 270, 283, wherein the court said:

“# # * [AJlthough it is preferable for the doctor who examined the defendant to testify, a psychiatrist who has reviewed all of the records and attended a staff conference with the examining doctor is qualified to give his opinion as to whether the defendant was sane at the time of the commission of the crime.”

The defendant relies principally upon Mehochko v. Gold Seal Co. (1966), 66 Ill.App.2d 54) 213 N.E.2d 581, where the court held it was error to permit a doctor to read the report of an independent laboratory into the record where the doctor’s only knowledge of the test was through hearsay. We think that the facts in the instant case are clearly distinguishable. In Mehochko, the report was prepared by an independent laboratory and the witness had no personal knowledge as to the matters it contained. Here, the report was prepared by a staff member of a psychiatric institute under the supervision and direction of the chief of staff. Thus, the chief of staff was fully capable of being cross-examined as to the matters contained in the report.

Finally, defendant contends that tire trial court erred in excluding testimony offered by the defendant in support of his defense of insanity. He argues that defense counsel should have been permitted to ask an eyewitness his opinion of defendant’s behavior at tire time of the offense and that the trial court improperly limited the direct examination of the defendant.

At trial, Otis Diggins was called by the State to testify concerning the facts of the alleged offense. When defense counsel asked Diggins on cross-examination whether or not he drought defendant was “acting crazy” at the time of the offense, the trial court sustained an objection. The record shows, however, that the defense counsel did not attempt to clarify or rephrase the question.

The general rule is that non-expert witnesses may give their opinion as to an individual’s sanity based upon their personal observations. (People v. Patlak (1936), 363 Ill. 40, 1 N.E.2d 228; People v. Williams (1967), 38 Ill.2d 115, 230 N.E.2d 224.) However, the admission of lay opinion testimony as to the sanity of an accused is a question the trial judge must decide. (People v. Wax (1966), 75 Ill.App.2d 163, 220 N.E. 2d 600.) In this case, the lay witness was asked his opinion as to whether defendant was “acting like he was crazy.” We believe that this question is ambiguous, imprecise, and necessarily calls for a vague answer. Further, it distorts the proper legal standard for determining the sanity of an accused at the time of committing an offense. Consequently, we find no error in the trial court’s ruling that excluded this lay witness’ opinion. See People v. Williams (1967), 38 Ill.2d 115, 123, 230 N.E.2d 224, 229.

The defendant’s final contention is that the trial court deprived him of an opportunity to fully present his insanity defense by sustaining objections to the following questions posed to the defendant by his counsel:

“What do you think that are wrong for people to do?
What do you see yourself doing in the future?
How much is nine times eight?
Would you repeat these numbers to me, 3, 2, 4, 6, 8, 9, 10?
How do you feel about me as your lawyer?”

Defendant argues that these questions were relevant to his insanity at the time of the offense. The best evidence of mental condition, he argues, is the appearance and lucidity of the defendant himself. The State contends that its objection was properly sustained because this line of questioning is self-serving, prejudicial, immaterial, and designed to portray defendant as a pathetic and intellectually inferior person.

Only insanity at the time of the offense can excuse criminal responsibility. (People v. Moriarity (1942), 380 Ill. 148, 43 N.E.2d 977.) Testimony, to be relevant and material, must shed some direct light on this issue. In this case, defendant was asked questions regarding his mental condition at the time of trial. In our opinion, these inquiries were immaterial to the question of whether, at the time of the occurrence, he was suffering from a mental disease or defect. Thus, we find that the trial court properly sustained objections to these portions of defendant’s testimony.

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

Affirmed.

ADESKO, P. J., and BURMAN, J., concur.


author: Mr. PRESIDING JUSTICE ADESKO JOHNSON, J.,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Brodus, a/k/a James Brodaus, Defendant-Appellant.
    (No. 59202;
    First District (4th Division)
    May 22, 1974.
    JOHNSON, J., dissenting.

      James J. Doherty, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Thomas Mauet, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant-appellant was charged with contributing to the sexual delinquency of a child and on April 18, 1973, in a bench trial, defendant was found guilty. The trial court sentenced the defendant to serve a term of 5 months in the Illinois State Farm at Vandalia. The defendant appeals and contends he did not knowingly and understandingly waive his right to a jury trial. Since only a legal question is raised it is unnecessary to set forth the facts which gave rise to the prosecution. We agree with the defendant and find that there was not a proper jury waiver.

In the trial court the following colloquy took place:

“THE COURT: Would the State be ready to try the case?
MR. COOLEY: State is ready, your Honor.
THE COURT: He is in custody. The State is answering ready.
Do you have money to hire a lawyer or to post bond?
MR. BRODAUS: No.
THE COURT: I will give you the Public Defender. [Whereupon the Court Call continued. Subsequently, the following proceedings were had: ]
THE CLERK: Sheet 3, Line 32; James Brodaus: Gloria J. Price. Sheet 3, Line 32.
THE COURT: James Brodaus, I appointed the Public Defender. This is a sexual delinquency case. Are you ready for trial?
MR. HARRIS: Yes, Judge.
THE COURT: State ready?
MR. COOLEY: The State has motions to amend the complaint instanter, your Honor.
At this time the State requests leave to amend the complaint— to amend the date of the complaint from 15 February, *73 to 2 March 1973; and also, to include in ‘place of offense’ the words ‘Chicago, Cook County, Illinois.’
THE COURT: Any objection?
MR. HARRIS: No.
THE COURT: It may be amended. Ready for trial on the complaint as amended?
MR. HARRIS: Ready for trial. Plea of not guilty; jury waived.
THE COURT: State ready?
MR. COOLEY: State is ready.
THE COURT: Swear them in. [Witnesses sworn].”

It is readily apparent that in the case at bar defense counsel was appointed moments before the defendant went to trial and under the authority of People v. Baker, 126 Ill.App.2d 1, 262 N.E.2d 7 (1970), and People v. Boyd, 5 Ill.App.3d 980, 284 N.E.2d 699 (1972), there was not a knowing and understanding jury waiver.

This court is aware of the rule announced in People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397 (1969), that a defendant who allows his attorney in his presence to waive his right to a jury trial is deemed to have acquiesced in and to be bound by his attorney’s action. However, we are also cognizant of the decision in Baker, supra, which held the Sailor rule inapplicable to the factual situation in which a defendant appears in court without counsel and is furnished one the moment when he goes to trial. In such a situation the court held that unless the record affirmatively shows that the defendant knew or was informed of his right to trial by jury a waiver is not made knowingly and understandingly. As this very court stated in People v. Boyd, supra, at 982: “* * * The rule of the Sailor case does not apply to a case in which a defendant appears in court without counsel and is fmnished one the moment when he goes to trial and the record does not show that the defendant knew or was informed of his right to trial by jury.” The factual situation in the case at bar is similar to that of Baker and Boyd and therefore, the defense counsel’s statement “Ready for trial. Plea of not guilty, jury waived” was not sufficient to waive the defendant’s right to a jury trial. The record does not show that the defendant knew or was informed of his right to a trial by jury.

The State maintains that because the record indicates that there was a period of time between the appointment of defense counsel and the time the defendant’s counsel entered a plea of not guilty and waived the defendant’s right to a jury trial, the defendant cannot contend that he did not understand his jury waiver. In order to adhere to the State’s theory we would have to assume that during the interval of time the defendant’s attorney spoke with defendant and advised him of his right to a jury trial. However, no such assumption can be made because we are confined in making our judgment to what is affirmatively shown by the record. As stated in People v. Surgeon, 15 Ill.2d 236, 238, 154 N.E. 2d 253, 255 (1958), “The trial court is charged with the duty to see that the election of an accused to forego a trial by jury is both expressly and understandingly made. That duty cannot be perfunctorily discharged. (People v. Fisher, 340 Ill. 250.)” And as stated in People v. Bell (supplemental opinion), 104 Ill.App.2d 479 at 482, 244 N.E.2d 321 at 323 (1969):

“It takes but a few moments of a trial judge’s time to directly elicit from a defendant a response indicating that he understands that he is entitled to a jury trial, that he understands what a jury trial is, and whether or not he wishes to be tried by a jury or by the court without a jury.”

This simple procedure was not followed in the case at bar, nor does the record in any other manner affirmatively show that the defendant knew or was apprised of his right to a jury trial.

The State has cited the cases of People v. Gay, 4 Ill.App.3d 652, 281 N.E.2d 738 (1972), and People v. Taylor, 13 Ill.App.3d 253, 300 N.E.2d 862 (1973), as authority for the proposition that a valid jury waiver can occur when defense counsel in a defendant’s presence makes a statement waiving the defendant’s right to a jury trial. While it is true that in both of those cases a proper jury waiver was found to exist, the court made specific reference to the fact that defense counsel had not been appointed just prior to the commencement of the trial.

It is our opinion that the defendant in the case at bar did not knowingly and understandingly waive his right to a jury trial. Therefore, his conviction must be reversed and the case remanded for a new trial.

Reversed and remanded.

DIERINGER, J., concurs.

JOHNSON, J.,

dissenting:

I would affirm the judgment of the lower court and hold that there was a proper jury waiver.

In the recent case of People v. Lewis (1973), 13 Ill.App.3d 688, 691, 301 N.E.2d 159, 161, this court in a similar case referred to the case of People v. Sailor (1969), 43 Ill.2d 256, 260, 253 N.E.2d 397, 399, in which the Illinois Supreme Court stated: “ ‘An accused ordinarily speaks and acts through his attorney, who stands in the role of agent, and defendant, by permitting her attorney, in her presence and without objection, to waive her right to a jury trial is deemed to have acquiesced in, and to be bound by, his action.’” This court stated at page 691:

“While we feel that the better practice would be for the court to address the defendant about his desire to waive a jury trial, the record as a whole does not support the claim that he did not knowingly and understandingly waive a jury trial.”

The recent case of People v. Punyko (1973), 9 Ill.App.3d 1052, 293 N.E.2d 672, states at page 1054:

“We have often held that there is no precise standard to determine if a defendant has made an understanding jury waiver. In People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, our Supreme Court held that a trial court may rely upon the statement of a defendant’s attorney where he waives a jury in open court in the presence of the defendant and such waiver is not objected to by the defendant. In People v. Kaprelian [1972], 6 Ill.App.3d 1066, 286 N.E.2d 613, we held that a jury was knowingly waived where the defendant’s attorney, in response to a question by the court, stated that a jury was waived. In the case at bar, the statement by the privately retained defense attorney was not ambiguous and effectively waived the right to a jury trial.”

The rule, as announced in Sailor, is applicable to court appointed counsel. (People v. McClinton (1972), 4 Ill.App.3d 253, 280 N.E.2d 795). At pages 255-56, the court stated:

“Defendant seeks to restrict the applicability of these principles to cases involving defendants who, like the defendant in Sailor, have retained private counsel. However, there is no language within that opinion warranting such a limited construction. We note that the distinction which defendant propounds was expressly rejected in People v. Suriwka (1972), 2 Ill.App.3d 384, [389-90], 276 N.E.2d 490, 494. We also perceive nothing in Sailor which would require, as a condition precedent to a valid jury waiver, that the record affirmatively reflect that a defendant and his appointed counsel were afforded an opportunity for consultation. Therefore, we hold that the waiver of jury trial by defendant’s appointed lawyer, in defendant’s presence and with no objection, constituted an express, knowing and understanding waiver of defendant’s right to jury trial.”

As indicated in Sailor and subsequent cases cited, the trial court was entitled to rely upon the professional responsibility of the attorney, and presume from his waiving a jury trial that his client knowingly and understanding^ consented to the procedure.

Supreme Court Rules 401 and 402 for a waiver of counsel, waiver of indictment and pleas of guilty require the court to address the defendant personally in open court. There is no such requirement for a waiver of jury where the defendant is represented by counsel and enters a plea of not guilty. The above mentioned Rules are in accordance with Boykin v. Alabama (1969), 395 U.S. 238.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Fisher, Defendant-Appellant.
    (No. 59393;
    First District (4th Division)
    May 22, 1974.
    Paul Bradley and Steven Clark, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was found guilty of armed robbery following a bench trial and was sentenced to a term of 4 to 5 years in the Illinois State Penitentiary.

The issues presented on appeal are (1) whether the court improperly considered evidence of other crimes; and (2) whether the defendant was proven guilty beyond a reasonable doubt.

On April 12, 1972, at approximately 6:30 P.M., John Empfield, while working as a cab driver, picked up two persons at the corner of Randolph and Wabash Avenue in Chicago. Mr. Empfield identified one of these two persons as the defendant, Larry Fisher, both at a line-up and in court during the trial. The person who entered the cab with the defendant was an unidentified young woman. Mr. Empfield took the couple to 224 South Laramie Avenue where the woman left the cab. The defendant then asked to be taken to 4156 West Congress. When the cab reached that address the defendant got out of the back seat and into the front seat of the cab. He pointed a knife at the complainant and asked for his money. The complainant gave the defendant all the money he was carrying, which consisted of approximately $24. Defendant then fled from the cab.

At trial, Mr. Empfield testified he had a good opportunity to observe the defendant for approximately 30 minutes during the trip to 4156 West Congress by way of 224 South Laramie Avenue. Empfield further testified the knife offered into evidence by the State was similar to the one carried by the defendant during the robbery. Police Officer Alex Kaider testified on behalf of the State that he apprehended and arrested the defendant on April 19, 1972, 1 week subsequent to the offense at bar. The arrest of April 19 concerned a matter unrelated to the instant case. The trial court subsequently ordered Officer Kaider’s testimony stricken from the record on the ground it was unrelated to the instant case. Defendant’s motion for a mistrial, based on the stricken testimony, was denied. The defendant, testifying on his own behalf, denied he robbed the complainant. Defendant claimed he was sick on the date in question and had spent the day at home with his mother and her boyfriend. At the close of all the testimony, the trial court found the defendant guilty of armed robbery and sentenced him to 4 to 5 years in prison.

The defendant first contends the trial court erred in considering evidence of a subsequent crime. Defendant maintains the testimony of Officer Alex Kaider concerning the defendant’s arrest on April 19, 1972 (1 week subsequent to his arrest in the instant case), was so prejudicial as to deny him a fair trial.

We believe the finding of the trial court was based solely on competent evidence. The trial judge ordered all of Officer Kaider’s testimony concerning the second crime stricken from the record when he determined such evidence was irrelevant to the issues in the instant case. Further, the trial judge sustained objections to most of the questions asked by the State which related in any way to the second crime. It is a well established principle of law that in non-jury cases the trial court is presumed to consider only competent evidence in making its finding. (People v. Miller (1971), 2 Ill.App.3d 206.) In People v. Pagan (1972), 52 Ill.2d 525, the defendant raised a claim identical to that made by the defendant in the instant case. In Pagan the trial court also ordered stricken from the record testimony concerning an unrelated crime. In upholding the finding of the trial judge, the supreme court stated:

“# » # we must presume that the complained-of prejudicial testimony concerning other crimes’ remained stricken from the record and was not considered by the court. In bench trials, such as this, it may be presumed that the trial judge considered only competent and relevant evidence. [Citation.] The record contains nothing to indicate that this presumption should not prevail in the case before us [citation], and defendant’s contentions with respect to Miloradovic’s testimony can not be sustained.” (52 Ill. 2d at 537.)

Likewise, in the instant case, since the evidence of the subsequent crime was stricken from the record, it must be presumed the trial court disregarded said evidence and based its finding only on competent and relevant evidence.

The defendant next contends he was not proven guilty beyond a reasonable doubt by the identification testimony of the complainant. Defendant argues the complainant’s opportunity to observe the robber was inadequate to sustain a conviction. In support of his contention the defendant cites the decision in People v. Kidd (1951), 410 Ill. 271, wherein the supreme court held a conviction based upon an identification which is doubtful, vague, and uncertain, and which does not produce an abiding conviction of guilt, will be reversed.

We believe the identification testimony of the complaining witness was sufficient to sustain the finding of guilty beyond a reasonable doubt. The issue of the adequacy of identification testimony raises a question of the credibility of the witnesses, which is a matter for determination by the trier of fact. (People v. Knowles (1970), 130 Ill.App.2d 78.) So long as the identification is based on an adequate opportunity to observe the defendant, the finding of the trier of fact should not be disturbed unless contrary to the manifest weight of the evidence. (People v. Daily (1968), 41 Ill.2d 116.) The identification of the defendant by the complainant in the case at bar was based on the opportunity to observe the defendant at close range for approximately thirty minutes. The identification was therefore sufficiently clear and credible to prove the defendant guilty beyond a reasonable doubt.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN and JOHNSON, JJ., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Allen Davis, Defendant-Appellant. The People of the State of Illinois, Plaintiff-Appellee, v. Gary D. Quinn, Defendant-Appellant.
    (Nos. 72-228-9 cons.;
    Second District
    June 5, 1974.

      Ralph Ruebner and Adam Lutynski, both of Office of the State Appellate Defender, of Elgin, for appellants.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Charles D. Sheehy, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A three-count indictment charged defendants with one count of burglary and two counts of theft of property valued in excess of $150. At the close of the State’s case-in-chief, the court directed a verdict in favor of defendants on the two counts of theft. Trial proceeded on the burglary count and a jury found the defendants guilty. Davis was sentenced to 4 years’ probation, the first year to be served at the Illinois State Farm at Vandalia. Quinn was sentenced to 3 years’ probation, the first 8 months to be served at the Illinois State Farm in Vandalia. We have consolidated the defendants’ separate appeals for the purpose of review.

Defendants contend that they were not proven guilty beyond a reasonable doubt, that the court committed reversible error by explaining to the jury the reason for the directed verdict, and that it was error for the court to instruct the jury on theft.

At approximately 10 P.M. on October 22, 1971, the janitor of the Zion-Benton High School made his routine check of the band room observing that the windows were closed, the doors locked, the large doors at the end of the hall chained, and the band’s drums in the room.

On the morning of October 23, 1971, an Officer Guthrie and another made security rounds in their squad car. They approached the intersection of 22d Street and Bethesda Avenue (the area of the high school) at approximately 2:30 A.M. and observed 3 individuals carrying large objects in the school parking lot. The lot was well lit. Guthrie immediately recognized the two defendants but not the third individual whom he described as a white male, 5' 10", 145 to 150 pounds and of slender build. When the third party pointed in Guthrie’s direction, all three dropped the objects they were carrying and ran. The two defendants were apprehended immediately and taken to the police station in separate cars. The third individual escaped and at the time of trial had not been apprehended.

Shortly after apprehending the two, the janitor and Guthrie entered the band room, observed that a window was open and that the drums were missing. The room’s outside exit door had a breaker bar; when closed and locked this door could be opened only from the inside. The window was described as being 40" long, 14" high and of tire type which tilts in and down to open.

The defendants were separately interrogated at the police station. Davis stated that, after visiting friends, he and Quinn ran through the parking lot enroute to the Davis house, that they saw no one, neither did they see the drums. (At trial, Davis testified that he had not entered the school on October 23, 1971, at 2:30 A.M., and that he and Quinn had left their friend’s residence at approximately 2 A.M.)

During interrogation (and at trial) Quinn stated that he and Dávis had visited with friends until 2 or 2:15 A.M., stopped at another friend’s residence for 5 or 10 minutes and were passing through the parking lot enroute to Davis’ house when they observed a white male, 17 or 18 years old, of slight build, approximately 6' tall, 140 to 160 pounds, carrying a set of drums. He asked the defendants for assistance, As they began to help him, he shouted, “Police!”, dropped the drums he was carrying and ran. Quinn testified that because of the man’s behavior the defendants also dropped the drams they were carrying and ran.

The officer substantiated the fact that the defendants were traveling in the direction of Davis’ house and that to reach such destination it was shorter to cut through the parking lot than to go around the block.

The defendants contend that they were not proven guilty beyond a reasonable doubt for three reasons: under the facts disclosed, they did not have time to commit the burglary, the window opening was too small to allow entry, and the State failed to call all available witnesses.

As to the element of time, defendants contend that according to their own unrebutted evidence and the fact that they had been visiting miles from the scene of the crime, it would have been physically impossible for them to have reached the school and committed a burglary prior to 2:30 A.M. when they were observed by the police. This theory is raised for the first time in this court. Nevertheless, were we to accept the argument, we would be holding that as a general rule of law the State must accept the defendants’ facts as true and thereafter prove how the crime could have been committed within that given set of facts. Defendants’ argument is without merit. In most trials, both inculpatory and exculpatory evidence is presented and in reaching a verdict it is the province of the jury to weigh the evidence and the credibility of the witnesses. (People v. Harris, 53 Ill.2d 83, 88 (1972).) This court must determine whether the evidence was sufficient to support the verdict. Here, testimony established that the defendants were observed in the immediate vicinity of a burglary, at the specific time of that burglary, with the stolen property in their possession. This testimony was neither impeached nor discredited. Quoting in part from an earlier decision (People v. Hawkins, 27 Ill.2d 339, 341 (1963)), the Illinois Supreme Court, in People v. Stock, 56 Ill.2d 461, 475 (1974), stated:

“ ‘It is well established that the recent, exclusive and unexplained possession of stolen property by an accused person in and of itself gives rise to an inference of guilt which may be sufficient to sustain a conviction in the absence of other facts and circumstances which leave in the mind of the trier of fact a reasonable doubt as to his guilt.’ This language supports the conclusion that if a defendant’s story is not believed by the trier of fact, it is to be considered to be unexplained. A defendant may not defeat the inference by the mere fact of raising any explanation.”

Defendants further allege that the State’s theory as to entry is incredible and creates another reasonable doubt as to their guilt. The State theorized that initial entry was accomplished through the described window and based such theory on the testimony of the janitor who had observed the window closed prior to the burglary but open thereafter. The janitor also testified that when opened, the window divided the aperture in half. An investigating officer who measured the window testified that its dimensions were 40" x 14" and the arresting officer estimated that there was approximately a 12" clearance when the window was open. There was no direct evidence that it was possible to crawl through the window; neither was there evidence of it being impossible. Entry was a question of fact for the jury to determine. The fact that the window was observed closed prior to the burglary and open thereafter is unrebutted circumstantial evidence indicating that this was the point of entry. Circumstantial evidence concerning the point of entry is sufficient to establish this element of the crime of burglary. (People v. Reeves, 360 Ill. 55, 62-63 (1935).) We find, the evidence of entry sufficient to sustain the jury’s verdict.

It is argued that the State should have called the defendants’ friends to testify as to the time of their departure, that someone should have been called to attest to the fact that a grown man could crawl through the open window, and that all other building maintenance personnel should have been called to ascertain that they admitted no one into the building. The failure to call these witnesses, defendants maintain, supports the contention that they were not proven guilty beyond a reasonable doubt. This argument tends toward the absurd. The State’s burden is not to prove the guilt of the accused beyond the realm of uncertainty but beyond a reasonable doubt. The defendants were free to call any witness or to produce any evidence in rebuttal of the State’s prima facie case. The State is under no obligation to call all available witnesses, nor can there be a presumption that the testimony of any uncalled witnesses would be unfavorable to the State. (People v. Jones, 30 Ill.2d 186, 190 (1964).) On the other hand, the State, by failing to call a witness, must accept the risk of any possible negative inference being drawn from their absence. (People v. Scott, 38 Ill.2d 302, 306 (1967).) As previously noted, sufficient evidence was presented to support the convictions beyond a reasonable doubt.

Defendants assert that it was error for the trial court to explain its reasons for a directed verdict in that such explanation implied to the jury that the defendants were guilty of committing a theft.

At the close of the State’s case-in-chief, the defendants (outside the presence of the jury) moved for a directed verdict on all three counts. The court granted the motion as to the theft counts but denied the motion for a directed verdict on the burglary count. Thereafter, the court stated to the jury:

“* * ” Counts II and III of the indictment have charged each defendant with, and I quote ‘theft in excess of $150,’ and it has been held by the Court as a matter of law that this charge which I have just quoted has not been sufficiently established or proven by the State as to the fair market value of the subject matter of this incident, therefore, these two — .”

The court was interrupted, defendants approached the bench and moved for a mistrial. After a conference in camera, the motion was denied and the judge addressed the jury to complete his explanation of the dismissal of counts II and III. Defendants maintain that by stating that the theft counts were dismissed because the value of the property was not proven, the court implied its belief that defendants had in fact committed a theft. They argue that the jury was influenced and the defendants prejudiced by such implication because intent to commit a theft was a necessary element in finding defendants guilty of burglary.

The Code of Criminal Procedure provides for the direction of a verdict when the evidence is insufficient to support a finding of guilt. A not guilty finding may be made either by the court or by the jury on direction from the court. (Ill. Rev. Stat. 1971, ch. 38, § 115 — 4 (k).) In People v. Lomax, 126 Ill.App.2d 156, 163-64 (1970), two defendants were charged with the crime of murder and at the close of the State’s case both moved for a directed verdict in camera. The trial court denied the motion as to Lomax and granted the motion as to Clemons. Thereafter, in the presence of the jury, the trial court stated that there was insufficient evidence against Clemons, directed them to there find a verdict of not guilty, but stated that the case would proceed against Lomax. On appeal it was held that the court’s method of directing a verdict was within the statute and therefore unobjectionable. Similarly, we find that in the case at bar the trial court did not overstep its statutory authority by noting the legal reason for directing the verdict. See also People v. Cannon, 49 Ill.2d 162, 166 (1971); People v. McFadden, 107 Ill.App.2d 132, 137-43 (1969).

Defendants contend that the giving of an instruction defining the crime of theft compounded the error of the explanation for the directed verdict. The instruction complained of is I.P.I.-Criminal 13.01; it was used in conjunction with I.P.I.-Criminal 14.05 and 14.06. Having found no error in the manner in which the court directed the verdict, we must consider whether the giving of the instruction was otherwise erroneous. The burglary count of the indictment alleged that defendants entered the building with intent to commit a theft. An instruction defining the crime of theft in a burglary case need not be given (People v. Browry, 8 Ill.App.3d 599, 604 (1972)) but we do not find it to be error for the court to deliver a definition of a term used in the statute (as an element of the crime), in the indictment (charging the crime) and in other instructions given to the jury. People v. McClure, 93 Ill.App.2d 450, 459 (1968).

The judgments in both cases are affirmed.

Judgments affirmed.

SEIDENFELD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy Watson, Defendant-Appellant.
    (No. 73-163;
    Second District
    June 5, 1974.
    Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Assistant Public Defender, of counsel), for appellant.
    John J. Bowman, State’s Attorney, of Wheaton, for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Defendant Roy Watson was charged in a two-count indictment with burglary (Ill. Rev. Stat. 1969, ch. 38, par. 19 — 1(a)), and with possession of burglary tools (Ill. Rev. Stat. 1969, ch. 38, par. 19 — 2). Upon completion of the trial, the jury returned a verdict finding defendant guilty of both charges. Judgment was accordingly entered in the circuit court of Du Page County, and defendant was sentenced to serve 3 years on probation with the first 6 months to be served in the Du Page County jail.

The jury was instructed on the statutory definitions of the crimes of burglary and possession of burglary tools, and was also instructed as to the elements of each of these crimes. Defendant now contends that the trial judge committed reversible error in that he failed to, sua sponte, give the jury additional appropriate instructions defining the words “intent” and “knowingly” which were included in the given instructions. At the conference on instructions, however, and at the time the instructions were read to the jury, defendant neither objected to the omission of such instructions, nor tendered appropriate instructions defining the words “intent” and “knowingly.” Consequently, the question which we must initially consider is whether or not defendant has waived his right to have this issue reviewed on appeal.

Generally, a trial judge has no duty to give instructions on his own motion where the defendant does not request them (People v. Carvin (1960), 20 Ill.2d 32, 169 N.E.2d 260; People v. Browry (1972), 8 Ill.App. 3d 599, 290 N.E.2d 650), and by failing to request certain instructions, a defendant generally waives the giving of such instructions. (People v. Cesarz (1969), 44 Ill.2d 180, 255 N.E.2d 1.) Notwithstanding these principles, defendant urges us to review the instruction issue, arguing that it was incumbent upon the trial judge to instruct the jury on his own motion as to the definition of the basic intent element in each of the crimes he was charged with. In support of this contention, defendant relies on People v. Davis (1966), 74 Ill.App.2d 450, 221 N.E.2d 63.

The facts in Davis, however, are factually inapposite to those in the case before us. In Davis the defendant was charged with the offense of attempt robbery and tried by a jury. Among other instructions, the jury was instructed as to the statutory definition of “attempt”, but there was no instruction which defined the “specific crime” of robbery, nor was the word “robbery” ever mentioned in any of the instructions in that case. The court in Davis held that it was incumbent upon the trial judge to instruct the jury on such a fundamental instruction even though the defendant failed to request such an instruction.

In the case before us the jury was instructed as to the definitions of both crimes as well as the essential elements of each. Unlike the case in Davis, therefore, there was no omission of any “fundamental” instructions. Furthermore, defendant Watson did not request that the jury be instructed as to the definitions of the words “intent” and “knowingly”; and the absence of instructions defining these words did not preclude fundamental fairness in the trial. For these reasons, defendant’s failure to raise this point in the trial court constituted a waiver of his right to raise it before us for the first time. Cf. People v. Cesarz (1969), 44 Ill.2d 180, 255 N.E.2d 1; People v. Wick (1970), 125 Ill.App.2d 297, 260 N.E.2d 487 (abstract opinion).

Finally, defendant argues that the portion of his sentence requiring him to serve six months in the Du Page County jail as a condition of his probation sentence is improper under the provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.). Defendants appeal in this case was pending on our docket on January 1, 1973, when the new Code became effective. The prosecution of defendant’s case had thus not reached the stage of “final adjudication” at the time of the Code’s effective date. Therefore, defendant is entitled to have his sentence conform to the Code’s provisions as they existed on January 1, 1973, prior to their amendment by P. A. 78-939. People ex rel. Weaver v. Longo (1974), 57 Ill.2d 67; People v. Zayas (1974), 17 Ill.App.3d 390 (abstract opinion).

Section 5 — 6—3(d) of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—3(d)), as it read on January 1, 1973, prohibits the imposition of split sentences. For this reason, judgment in this case is modified to eliminate the 6-month period of incarceration so as to constitute a sentence solely of probation for a period of 3 years.

The judgment of conviction and the sentence as modified are affirmed.

Affirmed as modified.

SEIDENFELD, P. J., and T. MORAN, J., concur.


author: Mr. JUSTICE T. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard F. Lawler, Defendant-Appellant.
    (No. 72-350;
    Second District
    June 5, 1974.

      Carl Kuhn, of Glen Ellyn, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE T. MORAN.


author: Mr. PRESIDING JUSTICE T. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roger Banks, Defendant-Appellant.
    (No. 72-178;
    Second District
    June 4, 1974.
    Ralph Ruebner and Adam Lutynski, both of the Office of State Appellate Defender, of Elgin, for appellant.

      F. Lawrence Lenz, State’s Attorney, of Freeport (James W. Jerz and Martin Moltz, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. PRESIDING JUSTICE T. MORAN

delivered the opinion of the court:

Defendant and four other men were indicted for the offenses of robbery and aggravated assault. At the arraignment, the Public Defender represented all five men each of whom entered;a plea of not guilty. Trial was set for Monday, February 14, 1972. On that date, private counsel sought to enter his appearance for defendant, informing the court that he had been contacted by defendant on the previous Friday. Substitution of counsel was allowed. New counsel moved for a continuance stating that he was not prepared for trial that day; the motion was denied. A motion was then made to sever defendant’s case from that of the co-defendants’, such motion being based upon counsel’s lack of preparedness and the fact that “some of the defendants [had] made confessions or * * * statements * * * adverse to the interests of Mr. Banks.” The court denied the motion for severance but allowed defendant’s motion for discovery (with which the State complied that same afternoon). Early that afternoon, before trial began, co-defendant Addison moved for and was granted a severance, arid changed his plea to one of guilty. The balance of the afternoon was devoted to selection of the jury.

The following morning, defendant moved-to suppress eye-witness identification. Upon denial of the motion, the trial proceeded. Defendant’s counsel made no opening statement nor did he call the defendant or any witness to testify in his behalf. The jury found defendant guilty of robbery and aggravated assault and he was sentenced to a term of 4 to 12 years in the penitentiary.

On appeal, defendant’s first two issues concern the sufficiency of the indictment and the two remaining question the propriety of the court’s denial of defendant’s motions for continuance and severance.

It is contended that the indictment for aggravated assault is fatally defective in that it failed to include an allegation that the offense was committed “without lawful authority” and failed to set forth the nature and elements of the offense.

In substance, the indictment charged that on November 17, 1971, at and within Stephenson County, Illinois, Roger Banks knowingly committed the offense of aggravated assault in violation of section 12 — 2(a) (9) of the Criminal Code (Ill. Rev. Stat, ch. 38, §12 — 2(a)(9)) by committing an assault on Thomas Rodebaugh knowing that the individual assaulted was on or about a public way. The statutory section cited states:

“(a) A person commits an aggravated assault, when, in committing an assault, he: * * *
(9) Or the individual assaulted is on or about a public way, public property, or public place of accommodation or amusement; * *

It is readily apparent that the indictment follows the wording of the statute and contains the nature and elements of the offense charged.

In the recent case of People v. Harvey, 53 Ill.2d 585 (1973), it was held that an indictment for aggravated battery couched in statutory terms is sufficient to inform the defendant of the charge and to operate as a bar to a subsequent prosecution. That case also held that failure to allege that the offense was committed “without legal justification” does not render the indictment void since the statute which defines battery contains all the elements necessary to that offense including the lack of lawful justification.

We find that in light of. Harvey, the first two contentions in the instant matter are resolved against the defendant.

Defendant next contends that the trial court abused its discretion by denying his motion for a continuance, thereby violating his right to the effective assistance of the counsel of his choice and forcing him to trial 3 days after having retained such counsel.

The law is clear that the granting of a continuance based upon defense counsel’s lack of preparation rests within the discretion of the trial judge. On review the denial of a continuance on that ground will not be disturbed unless it is shown that this discretion has been abused. (People v. Hayes, 52 Ill.2d 170, 175 (1972).) Denial of a motion for continuance will not be considered improper unless it appears that the refusal to grant additional time has in some way embarrassed the accused in the preparation of his defense and has thereby prejudiced him. (People v. Canaday, 49 Ill.2d 416, 427 (1971).) Immediately after motions for a continuance and severance were denied, defense counsel moved to dismiss the indictment and filed a written motion for discovery. He conducted cross-examination of the majority of the witnesses and gave a final argument. The record does not suggest that counsel was so unprepared as to prejudice defendant. We find that the trial court did not abuse its discretion by denying defendant’s motion for continuance.

Finally, defendant contends that, because co-defendant Addison had given statements to the police which implicated him (Banks), the trial court committed reversible error by denying his motion for severance. The error, if any, was cured when the State moved for and was granted a severance of its case against Addison who then pled guilty and thereafter testified as a State’s witness.

For the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.

SEIDENFELD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Watson Alfred Gray, Defendant-Appellant.
    (No. 72-332;
    Second District
    June 4, 1974.
   Opinion by

Mr. JUSTICE RECHENMACHER.

Ralph Ruebner and Richard Wilson, both of State Appellate Defenders Office, of Elgin, for appellant.

Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Allen Gentry, Defendant-Appellant.
    (No. 12201;
    Fourth District
    June 3, 1974.

      John F. McNichols and J. Daniel Stewart, both of Office of State. Appellate Defender, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (John A. Beyer, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was convicted in a jury trial of burglary and theft over $150. The trial court entered judgment on both verdicts and sentenced defendant to an indeterminate term of 3 to 9 years. Defendant appeals.

Defendant contends upon appeal that his guilt was not proven beyond a reasonable doubt; that he was denied a fair trial because of the introduction into evidence of the fact that he had been previously convicted of burglary and theft; that the trial court’s ruling that permitted the State to present rebuttal tesimony was erroneous; that the trial court improperly entered judgment on both jury verdicts; and that the sentence he received was excessive.

Defendant was indicted for a burglary that took place on June 29, 1972 of a partially completed building located at 1411 Dennison Drive, Springfield, Illinois. Defendant and his accomplice entered the building in question around 12:30 A.M. and removed two rolls of shag carpeting. The approximate value of the carpeting was set at $600.

We find no merit to defendant’s contention that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Upon review of the record we find that there was ample evidence to support the jury verdicts. This court can set aside a jury verdict only when the evidence is so palpably contrary to the verdict or so unreasonable or unsatisfactory as to raise a reasonable doubt as to defendant’s guilt. (People v. Nuccio, 54 Ill.2d 39, 294 N.E.2d 276.) Since there is no reasonable doubt of defendant’s guilt, a review of the testimony bearing on this issue is not necessary, for it would have no precedential value; and accordingly we resolve this issue under Supreme Court Rule 23. Ill. Rev. Stat. 1973, ch. 110A, ¶ 23.

Defendant also submits that he was denied a fair trial due to the admission into evidence of the fact he had been previously convicted for burglary and theft over $150. We cannot agree.

Prior to opening statements at trial, defendant filed a motion in limine requesting that if he take the stand, the State be precluded from bringing out on cross-examination that he had a prior conviction for burglary and theft. Counsel asserted that the conviction did not come within the purview of People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695. The trial court inquired of counsel as to what the dates of the prior convictions were. In reply, counsel stated the convictions took place in 1969. Thereafter the trial court denied the defense motion. When defendant took the stand, his counsel brought out on direct the existence of the prior convictions and the State did not cross-examine concerning these matters.

The convictions in question clearly fall within the parameter of Montgomery. (People v. Overturf, 12 Ill.App.3d 441, 299 N.E.2d 34.) Therefore the trial court’s ruling was correct. In any case, the testimony dealing with the prior convictions was offered by the defendant.

Defendant next claims that the trial court committed reversible error in receiving rebuttal testimony from a witness who had previously testified in the State’s case-in-chief on the grounds that the testimony was not rebuttal testimony. Defendant submits that the testimony did not contradict or explain anything defendant had stated while on the stand; and the testimony directed tire jury’s attention to defendant’s prior untruthfulness at a point in the trial when it would have an adverse effect upon defendant in the eyes of the jury. The State contends that the witness’ testimony explained and rebutted defendant’s explanation for his untruthfulness.

The admission of rebuttal testimony is a matter left to the discretion of the trial court. A court of review will not interfere with the exercise of that discretion unless an abuse of discretion is shown. (People v. Schulz, 1 Ill.App.3d 212, 273 N.E.2d 736.) The record reveals that the rebuttal testimony did put the defendant’s testimony into a different factual perspective than that which was advanced by defendant. It cannot be said that in light of this fact the trial court abused its discretion even though the rebuttal testimony could have been advanced in the State’s case-in-chief. People v. Daugherty, 43 Ill.2d 251, 253 N.E.2d 389.

With regard to the issue that the trial court erroneously entered judgment on both verdicts in question, we note that the State has conceded this point. Under People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1, it is clear that the trial court should have entered judgment upon only one of the convictions in question.

Lastly, defendant contends that the sentence of 3 to 9 years .is excessive in light of the nature of the offense and his history and character. The sentencing provisions of the Unified Code of Corrections are applicable herein. (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.) The maximum term for burglary is any term in excess of 1 year and not to exceed 20 years. The minimum term is 1 year unless the trial court finds that a higher term should be set because of the “nature and circumstances of the offense and the history and character of the defendant”, and the higher minimum term cannot exceed one-third of the maximum term. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3).

We find that the sentence imposed was not excessive. The trial court reviewed the facts of the case and defendant’s past criminal record in the pre-sentence hearing. It based its sentence upon these factors, and we are not disposed to alter the trial court’s findings unless they are manifestly erroneous.

The judgment of conviction for burglary is affirmed; the conviction of theft is reversed; and the sentence imposed is affirmed. This case is remanded to the circuit court with directions to issue an amended mittimus.

Affirmed in part, reversed in part, and remanded with directions:

SMITH, P. J., and SIMKINS, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael L. Miller, Defendant-Appellant.
    (No. 12235;
    Fourth District
    June 3, 1974.

      John F. McNichols, of Office of State Appellate Defender, of Springfield, for appellant.
    Robert L. Welch, State’s Attorney, of Virginia, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant appeals from an order of the Circuit Cotut of Cass County denying his petition for post-conviction relief filed with regard to his conviction on the charge of burglary.

Defendant was arrested and substantially indicted for the burglary of the Mallard Inn of Beardstown, Illinois, that occurred on December 23, 1969. On February 25, 1971, defendant pled guilty to the charge of burglary. He was sentenced to an indeterminate term of 2 to 5 years on that charge. The 2-5 year term was to run concurrently with another sentence of 2-5 that he received, in the same proceedings,- after he entered a plea of guilty to the charge that he violated his bail bond. Defendant did not exercise his right to a direct appeal from the aforementioned judgment. On January 28, 1972, he petitioned the Circuit Court of Cass County for post-conviction relief. A hearing was held on the petition. The trial court denied defendant’s petition and he appeals.

On appeal defendant raises three issues for review. Since one of these issues is dispositive this court need not address the remaining issues. Defendant submits that the trial court which accepted his plea of guilty failed to substantially comply with Supreme Court Rule 402, in that it did not establish a factual basis for the plea of guilty as mandated under Supreme Court Rule 402(c); and that this failure to substantially comply with Rule 402 amounted to a denial of due process under both the Federal and State constitutions. ;

That portion of the arraignment which dealt with the factual basis for defendant’s plea is as follows:

“THE COURT: Very well.
The charges that have been posed here against you by the Grand Jury of this jurisdiction by way of true bills of indictment read as follows:
The one on burglary reads that on December 23rd, 1969, in Cass County, Illinois, Michael L. Miller committed the offense of burglary in that they — also with Dale Kroening, by the way —without authority, knowingly entered a building owned, used or occupied by Charles Kirchner, doing business as Mallard Inn, with intent to commit therein a theft in violation of Paragraph 19 — 1, Chapter 38, Illinois Revised Statues, (sic)
That section of the Criminal Code reads that a person commits burglary when, without authority, he knowingly enters or without authority remains within a building or any part thereof, with intent to commit therein a felony or theft.
The penalty affixed therefor is a person convicted of burglary shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less .than one years, (sic)
That means that the Court, upon conviction, would or could set imprisonment in the penitentiary for an indeterminate term. The minimum could not be less than one year, but the minimum could be more than one year, and the maximum could be for any period of time that the Court determined to be proper. You understand that?
MR. MILLER: Yes, sir, I do."

In order for a claim to be properly cognizable under the Post-ConViction Hearing Act it must urge the existence of a substantial denial of the petitioners rights that arise under the Federal or State constitution. (People v. Newberry, 55 Ill.2d 74, 302 N.E.2d 34.) In a post-conviction proceeding the burden is upon the petitioner to demonstrate that his constitutional rights have been abridged. People v. Watson, 50 I11.2d 234, 278 N.E.2d 79.

Supreme Court Rule 402 was promulgated to insure compliance by the courts of this jurisdiction with the mandate of Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709. In Boykin the Supreme Court noted that in order to satisfy the requirements of due process a guilty plea in a criminal prosecution must be voluntarily and understandably made.

The courts of this jurisdiction have uniformly held that absolute compliance with Supreme Court Rule 402 is not necessary, however substantial compliance is. (People v. Green, 12 Ill.App.3d 418, 299 N.E. 2d 535.) Failure to substantially comply with Supreme Court Rule 402 results in a deprivation of due process which is error of a constitutional magnitude. See People v. Barber, 51 Ill.2d 268, 281 N.E.2d 676.

The requirement that a factual basis for a plea be established is interwoven within the constitutional fabric of die concept of voluntariness enunciated in Boykin. Supreme Court Rule 402(c) is designed to assist the trial judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary; and to produce a complete record at the time a plea is entered of the factors relevant to such voluntariness. Therefore the failure to substantially comply with Rule 402(c) results in a failure to substantially comply with Rule 402 in its entirety.

In People v. Hudson, 7 Ill.App.3d 800, 803, 288 N.E.2d 533, 535, it is stated that:

“The requirement of Rule 402(c) that there be a factual basis for the plea is met when it appears on the record that there is a basis for reasonably concluding that the defendant actually committed the acts with the intent (if any) required to constitute the offense to which the defendant is pleading guilty. It is not necessary that it appear on the record beyond a reasonable doubt or even by a preponderance of the evidence that the defendant committed the offense. (See ABA Standards Relating to Pleas of Guilty, Par. 1.6, Approved Draft, 1968.) All that is required to appear on the record is a basis upon which the judge could reasonably reach the conclusion that there is a connection between the defendant’s acts and the intent with which he acted and the acts and intent (if any) required to constitute the offense to which the defendant is pleading guilty.”

The court went on to suggest several possible approaches for substantial compliance: an inquiry of the defendant as to what he did; requesting the prosecutor to make a summary of the evidence he would have produced at trial; examination of witnesses; and/or examination of the presentencing report. None of the above were done in the case at bar, notwithstanding the fact that the trial court endeavored to comply, and did comply with other facets of Rule 402.

Accordingly, the judgment of the trial court is reversed and the cause remanded with directions to permit the defendant to replead. See People v. Clark, 13 Ill.App.3d.39, 299 N.E.2d 752.

Reversed and remanded with directions.

SIMKINS, P. J., and KASSERMAN, J., concur.