text:
    ON-LINE FINANCIAL SERVICES, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—91—0148, 1—91—0278 cons.
    Opinion filed March 31, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellants Department of Human Rights and Joyce E. Tucker.
    Edwin F. Mandel Legal Aid Clinic, of Chicago (Randall D. Schmidt, of counsel), for appellant Bernella Kindzred.
    Carey Cosentino, of Oak Brook, for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendants, Bernella Kindzred (Kindzred), the Illinois Department of Human Rights and Joyce E. Tucker (Department), appeal the denial of their motion to dismiss plaintiff On-Line Financial Services, Inc.’s (On-Line’s) declaratory judgment action and the grant of summary judgment in On-Line’s favor. They argue that On-Line’s complaint should have been dismissed based upon the doctrines of ripeness, primary jurisdiction, and failure to exhaust administrative remedies, and the circuit court erred in finding that the relevant statute was mandatory.

Kindzred filed a charge with the Department on December 16, 1986, alleging that On-Line terminated her employment, because of racial discrimination, in violation of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1989, ch. 68, par. 1 — 101 et seq.). On-Line had fired Kindzred on September 30, 1986, for excessive absenteeism. Three years later, on October 10, 1989, the Department informed OnLine by letter that it was required to attend a mandatory fact-finding conference on November 14,1989, regarding Kindzred’s termination.

On-Line filed a complaint in the circuit court for declaratory and injunctive relief on October 27, 1989, alleging that the Department failed to file a complaint with the Illinois Human Rights Commission (Commission) within the statutorily prescribed period of 300 days, and Kindzred did not file a complaint within the following 30-day period. On-Line claimed that the Department did not have authority to initiate an investigation or a fact-finding conference and, therefore, sought a declaration that the Department was not authorized to investigate Kindzred’s charge or file a complaint with the Commission on her behalf. Kindzred filed a motion to dismiss On-Line’s complaint and On-Line moved for summary judgment.

On November 13, 1990, the circuit court struck On-Line’s prayer for injunctive relief, but denied Kindzred’s motion to dismiss OnLine’s claim for declaratory relief. The court granted On-Line summary judgment. Kindzred’s subsequent motion for rehearing and modification of judgment was denied. Both Kindzred and the Department appeal the circuit court’s order.

I

Several threshold arguments will be addressed first. Kindzred initially argues that On-Line’s complaint should have been dismissed, based upon the doctrines of ripeness, primary jurisdiction, and failure to exhaust administrative remedies.

The ripeness doctrine is intended to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies and to protect agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging party. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 546, 370 N.E.2d 223.) A statute or regulation is ripe for challenge when an affected person must choose between disadvantageous compliance and risk of sanction. 4 K.C. Davis, Administrative Law Treatise §25:13, at 393 (2d ed. 1983).

Kindzred’s reliance upon Gromer Supermarket, Inc. v. Pollution Control Board (1972), 6 Ill. App. 3d 1036, 287 N.E.2d 1, is misplaced. There, plaintiffs’ complaint which sought to enjoin defendants from holding hearings regarding the adoption of certain regulations was held unripe for adjudication. Defendants had taken no action against plaintiffs, and plaintiffs were not compelled to attend any type of hearing at which their rights or liabilities might be determined; “[t]heir only problem [was] the pendency of hearings so that [defendants could] determine if any regulation should be adopted.” Gromer Supermarket, Inc., 6 Ill. App. 3d at 1043.

The controversy here centers upon two issues: one, a purely legal question, namely, the interpretation of the Act’s filing requirement, and, the other, whether the Department’s letter to On-Line manifests sufficient finality. (See Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 149, 18 L. Ed. 2d 681, 691-92, 87 S. Ct. 1507, 1515-16.) On-Line was ordered to appear at a fact-finding conference; failure to attend could have resulted in default. On-Line also was required to complete a Department questionnaire for the investigative file, and was warned that “failure to submit relevant evidence may be construed against [On-Line].” The Department, therefore, was investigating Kindzred’s claim, although the time for filing a complaint with the Commission had expired. The Department’s letter attempted to interpret authoritatively a provision of the Act, leaving On-Line with a choice between disadvantageous compliance or possible sanctions. Judicial consideration was warranted. See Abbott Laboratories, 387 U.S. at 152-54, 18 L. Ed. 2d at 693-95, 87 S. Ct. at 1517-18; Bio-Medical Laboratories, Inc., 68 Ill. 2d at 546; Peoples Energy Corp. v. Illinois Commerce Comm’n (1986), 142 Ill. App. 3d 917, 934, 492 N.E.2d 551.

Kindzred also argues that the Department and the Commission had primary jurisdiction in this action. The doctrine of primary jurisdiction mandates a stay of judicial proceedings when the enforcement of a claim requires resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. (United States v. Western Pacific R.R. Co. (1956), 352 U.S. 59, 63-64, 1 L. Ed. 2d 126, 131-32, 77 S. Ct. 161, 164-65.) Where the expertise of the particular agency is not needed to resolve properly the contested issue, however, the doctrine does not apply. Peoples Energy Corp., 142 Ill. App. 3d at 933.

This case does not involve the reasonableness of the Department’s actions, but the authority of the Department to act at all. (See Peoples Energy Corp., 142 Ill. App. 3d at 933.) Kindzred correctly points out that the Act was intended to be the exclusive source for redress of civil rights violations. (See Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 7, 485 N.E.2d 312.) At issue, however, is the authority of the Department to file an action with the Commission after expiration of the statutorily mandated filing period. The doctrine of primary jurisdiction, therefore, is inapplicable.

Kindzred’s final threshold argument is that On-Line failed to exhaust all administrative remedies before filing an action in the circuit court. When an agency’s authority to act is attacked, the circuit court has jurisdiction to consider the merits of the claim, regardless of whether administrative remedies were exhausted. (Peoples Energy Corp., 142 Ill. App. 3d at 932.) Here, On-Line sought a declaration that the Department had no statutory authority to file an action against it. The exhaustion of remedies doctrine did not preclude consideration of On-Line’s complaint. See County of Kane v. Carlson (1987), 116 Ill. 2d 186, 199, 507 N.E.2d 482.

II

The principal issue is whether the circuit court erred in concluding that the Department was time-barred from filing a complaint with the Commission based upon Kindzred’s charge.

The Act allows an asserted victim of prohibited discrimination 180 days after the date of the alleged violation to file a charge with the Department, which then may conduct an investigation. (Ill. Rev. Stat. 1989, ch. 68, par. 7A — 102(A)(1).) The Act provides for the following time limit:

“(G) Time Limit. (1) When a charge of a civil rights violation has been properly filed, the Department, within 300 days thereof or within any extension of that period agreed to in writing by all parties, shall either issue and file a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. ***
(2) Within 30 days of the expiration of the 300-day period or such longer period as shall have been agreed upon pursuant to subparagraph (1), the aggrieved party may file a complaint with the Commission, if the Department has not sooner filed a complaint or ordered that no complaint be issued. *** The aggrieved party shall notify the Department that a complaint has been filed and shall serve a copy of the complaint on the Department on the same date that the complaint is filed with the Commission. Upon such notice, the Department shall cease processing the charge.
(3) Unless and until the aggrieved party files a complaint with the Human Rights Commission pursuant to paragraph (2) of this subsection, the Department shall continue its investigation and conclude it with the greatest promptness that is administratively feasible.” (Ill. Rev. Stat. 1989, ch. 68, par. 7A— 102(G).)

The Act also requires that within 10 days of receiving a charge, the Department must notify the complainant of his or her individual right to file a complaint with the Commission. Ill. Rev. Stat. 1989, ch. 68, par. 7A — 102(B).

The language of the Act regarding filing limitations is directory rather than mandatory. Section 7A — 102(G)(2) provides that an aggrieved party may file a complaint with the Commission and, if she does so, the Department must be notified; only then shall the Department “cease processing the charge.” The Department retains jurisdiction over the matter following expiration of the initial 300-day period, therefore, as the complainant’s notification otherwise would be unnecessary. Section 7A — 102(B) charges the Department with the obligation to inform a complainant of her “option” to file a complaint with the Commission, and the dates within which such option may be exercised. Further, section 7A — 102(G)(3) provides for a continued investigation by the Department unless the aggrieved party has filed a complaint within the 30-day period. Cf 42 U.S.C. §2000e — 5(f)(1) (1988); Occidental Life Insurance Co. v. Equal Employment Opportunity Comm’n (1977), 432 U.S. 355, 360-61, 53 L. Ed. 2d 402, 407-08, 97 S. Ct. 2447, 2451 (analogous interpretation of similar procedures under Title VII of the Civil Rights Act of 1964).

In Pace v. Human Rights Comm’n (1989), 187 Ill. App. 3d 16, 21, 542 N.E.2d 1277, the appellate court held that the filing requirements under the Act were directory rather than mandatory, noting that the 30-day “window” period provided an optional, alternative method by which an aggrieved party may proceed if not satisfied with progress made by the Department. Similarly in Wildwood Industries v. Human Rights Comm’n (1991), 220 Ill. App. 3d 12, 580 N.E.2d 172, appeal denied (1992), 143 Ill. 2d 649, which is analogous to the case sub judice, defendants filed charges with the Department alleging that plaintiff, their employer, committed acts of sexual harassment and sex discrimination in violation of the Act. After more than two years had elapsed, the Department filed complaints against plaintiff with the Commission. Plaintiff filed a complaint in the circuit court alleging that the Commission lacked jurisdiction over the untimely complaints and petitioned for injunctive relief; defendants’ motion to dismiss was granted, and the appellate court affirmed. The language of the Act and its legislative history were found to indicate that the 300-day time limit was not obligatory. A mandatory 300-day filing period would render meaningless the provision in section 7A — 102(G)(3) requiring continued investigation by the Department. Further, the statutory scheme “envisions a use for the reports of the investigations after the end of the 300-day period even when that period has not been extended by consent.” Wildwood Industries, 220 Ill. App. 3d at 21.

Plaintiff urges this court to follow Springfield-Sangamon County Regional Plan Comm’n v. Fair Employment Practices Comm’n (1978), 71 Ill. 2d 61, 373 N.E.2d 1307, in which the 180-day filing period under the Act’s predecessor, the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1967, ch. 48, par. 851 et seq.), was held to impose a mandatory time limit. The supreme court reasoned that the remedial features upon which the FEPA was based would be hampered by periods of inaction, and extended delays in the filing process would increase the financial burden on employers. (Springfield-Sangamon, 71 Ill. 2d at 68.) Subsequently, however, the United States Supreme Court held that a claimant who timely had filed a charge with the State under the FEPA had a property interest in the statutory procedures provided for redressing discriminatory actions and could not be deprived of the opportunity to have her charges heard simply because the State had failed to meet a filing deadline. (Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 431-32, 71 L. Ed. 2d 265, 274-75, 102 S. Ct. 1148, 1155.) Logan, therefore, departed from the holding in Springfield-Sangamon. See Franks v. Tucker (1985), 132 Ill. App. 3d 455, 462-63, 476 N.E.2d 1315.

Here, as in Wildwood Industries, the complainant filed charges with the Department and did not exercise her right to file a complaint with the Commission within the 30-day “window” period. After an exhaustive review of authority and a detailed analysis of the Act’s legislative history, the court in Wildwood Industries held that the 300-day limitation period of section 7A — 102(G)(1) is not mandatory. On-Line has not persuaded us to depart from that holding.

Further, this court has followed Logan on several occasions, holding that complainants had property interests in their civil rights claims under the Act or the FEPA and could not be denied redress due to an agency’s failures to file timely charges with the Commission. (See, e.g., Revoal v. Illinois Human Rights Comm’n (1984), 128 Ill. App. 3d 70, 73-74, 470 N.E.2d 54; Sauers v. City of Woodstock (1983), 113 Ill. App. 3d 892, 900, 446 N.E.2d 896; McClandon v. Bell & Howell Schools (1983), 112 Ill. App. 3d 367, 371-72, 445 N.E.2d 362; Lott v. Governors State University (1982), 106 Ill. App. 3d 851, 854, 436 N.E.2d 569.) Similarly, Kindzred was denied the opportunity to seek a remedy because of the Department’s failure to file a complaint with the Commission within the 300-day period.

The Department’s dilatoriness in investigating and acting upon Kindzred’s charge, however, is irremissible. Our supreme court has noted:

“Periods of inactivity on behalf of the [Department] would tend to hamper the remedial and reconciliatory procedures which underlie the very purpose[s] of the [Act]. The statutory time period, chosen by the legislature, seeks to balance the rights of an aggrieved individual who has suffered supposed discrimination against the rights of those charged under the Act to have a prompt determination of the validity of the claim lodged against them.” (Emphasis added.) (Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 36, 428 N.E.2d 489.)

A prompt evaluation of pending charges serves the interests of all parties; the Department’s undue delay frustrates the purposes of the Act.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause remanded for further proceedings.

Reversed and remanded with directions.

SCARIANO and McCORMICK, JJ., concur.

      An amicus brief supporting defendants was filed jointly by the Council for Disability Rights, The Coalition for Citizens with Disabilities in Illinois, Chicago Rose-land Coalition for Community Control, and the Illinois Human Rights Commission.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW MacFARLAND, Defendant-Appellant,
    First District (3rd Division)
    No. 1—86—2827
    Opinion filed March 31, 1992.

      Randolph N. Stone, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Carol L. Gaines, and Nicholas C. Giordano, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a joint bench trial with codefendant, defendant Andrew MacFarland was convicted of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)) and sentenced to 35 years’ imprisonment. On appeal, defendant asserts that (1) his sixth and fourteenth amendment rights were violated by the admission and use, over objection, of his codefendant’s statement against him where the codefendant did not testify and was not subject to cross-examination; and (2) he was arrested without probable cause where the basis of the arrest was that defendant and codefendant gave conflicting stories regarding their whereabouts at the time of the murder. We reverse. We find that the trial court’s admission and use of the codefendant’s statement against him was prejudicial error in a bench trial.

Katherine Adala was murdered in her second-floor apartment on the night of May 3, 1985. During the course of interviewing all the building’s residents, police questioned defendant and codefendant on May 9,1985.

At the hearing to quash the arrest and suppress the statement, defendant testified that he and codefendant were sitting in their apartment around 3:30 p.m. when Detectives John Fitzsimmons and Lawrence Thezan walked in without knocking and asked them to come to the police station for questioning. Defendant testified that the police officers neither identified themselves nor had an arrest warrant. When defendant refused to go, he was arrested for murder, handcuffed, and taken to the police station. There, the police officers handcuffed him to a ring on the wall, took his shoes, and interrogated him.

Defendant stated that he was questioned intermittently for 8 to 12 hours, and was awake and handcuffed the entire time. Defendant further testified that Detective Fitzsimmons told him three or four times that the codefendant had signed a statement against him, that it was in his best interest to sign a statement to defend himself, that they knew that he did not do it, that they knew about his record, that they knew about the codefendant’s previous conviction for the same offense, and that he would be free to go if he made a statement. After he was given Miranda warnings, defendant asked for a public defender, but was told that he could not see one until Monday since they did not work during the weekend. The detectives continued to question defendant.

Defendant further testified that after the assistant State’s Attorney gave him the Miranda warnings, he asked for a public defender and was again told no one was available until Monday morning. When defendant told the assistant State’s Attorney that the police officers kept telling him that he would be free to go if he signed a statement, the assistant State’s Attorney responded that it was in his best interest to do what the police said and to sign the statement. The assistant State’s Attorney also told defendant that the codefendant had signed a statement against him, and it was in his best interest to sign a statement defending himself. Defendant stated that he was treated fairly by the police officers and was then given a sandwich and some water. Answering the assistant State’s Attorney’s questions, defendant gave a court-reported statement. He read it, made corrections, and signed it.

Defendant further testified that he did not know of the murder at the time of questioning, did not know Ms. Adala, and had lived in the building approximately one month at the time of his arrest. Defendant was 19 years old at the time of the arrest, was a high school graduate, received a general discharge from the Army two months before the murder, and had never before been arrested. He further stated that it was the first time he had ever been in a police station while charged with a crime.

Detective John Fitzsimmons testified that he and his partner, Detective Lawrence Thezan, were assigned to the case after other police officers had interviewed the building’s residents. On May 8, 1985, the detectives interviewed Marshall Lyons and his brother, John Ward, who stated that they were watching the 8 o’clock movie in their apartment, with the door open, when Ms. Adala came to the door and asked if they wanted a drink. When they said they did, she left and came back with a bottle of liquor. Both Lyons and Ward had a drink from the bottle. At that time, defendant and codefendant stood by the doorway, had a drink, and left, walking east down the hallway. Neither Lyons nor Ward saw Ms. Adala after that. Fitzsimmons stated that both Ms. Adala’s apartment and defendant’s apartment were east of Lyons and Ward’s apartment.

Fitzsimmons further testified that Lyons gave them defendant’s and codefendant’s names, descriptions, and apartment number. The detectives went to that apartment on the evening of May 8, 1985, but were told that both defendant and codefendant were at work at the Tribune Company and would be home the next day. Fitzsimmons stated that they went to defendant’s apartment the next day around 5 p.m. Since the apartment door was open, Fitzsimmons could see defendant and codefendant sitting in the apartment. The police officers knocked on the door, identified themselves, and showed their stars. Standing outside the apartment door, Fitzsimmons .stated, he asked defendant if he would come for questioning, and defendant agreed. At that time, defendant was not considered a suspect, and was not handcuffed. Arriving at the police station at 6 p.m., defendant and codefendant were put in different interview rooms.

When Fitzsimmons and Thezan questioned defendant at 6 p.m., he stated that he knew about the murder and that he was working at the Tribune during the time Ms. Adala was murdered. Defendant told the detectives that he left for work around 8 or 9 p.m. and worked until 7 a.m. the next morning. The codefendant then told the detectives that he and defendant did not work that night because they arrived too late after being stuck on the el train for two hours. When Fitzsimmons requestioned defendant at 6:30 p.m., telling him the codefendant’s version, defendant repeated that he was working that night. Fitzsimmons testified on cross-examination that defendant was arrested after the conflicting statements.

The detectives then went to the crime scene and spoke to the building manager, who stated that Ms. Adala received her public aid check on May 1, 1985. After taking out her rent, he gave Ms. Adala $200 in cash. At 9 p.m., the detectives returned to the police station, gave defendant his Miranda warnings and requestioned him. After defendant repeated the same story, Fitzsimmons told defendant that “his buddy had given it up and told us about it,” and then asked defendant how much money he received. Fitzsimmons testified that defendant told him that he got $5. After gaining information from defendant and codefendant, the detectives requested an evidence technician and returned to the crime scene, where they found Ms. Adala’s apartment window open and radios stacked up.

When the detectives returned to the police station, they contacted the assistant State’s Attorney, who interviewed defendant around 12:45 a.m. Fitzsimmons stated that he gave defendant beverages, cigarettes, and food after he gave an oral statement to the assistant State’s Attorney. Defendant gave a court-reported statement at 4:44 a.m., made corrections, and signed the statement.

Fitzsimmons testified that defendant did not ask for an attorney or a public defender, did not ask him for an arrest warrant when he was in his apartment, and did not say he could not go the police station because he was going to work. Defendant was not handcuffed until after giving the oral statement around 9 p.m. or 9:30 p.m. He was not handcuffed when interviewed by the assistant State’s Attorney, when he made the court-reported statement, or when he read and corrected that statement. Fitzsimmons denied telling defendant that signing the statement would benefit him or that he would be allowed to leave if he gave a statement. No threats or promises of leniency were made.

Detective Lawrence Thezan gave substantially the same account of the interview with Marshall Lyons. Thezan said that the two men were questioned separately at 6 p.m. Defendant was not handcuffed when he went to the police station or during the first, second, or third interviews. Defendant was given Miranda warnings after the detectives spoke with the building manager. Thezan testified that defendant was arrested after he made the statement about the $5. Thezan testified that defendant did not ask for an attorney or about an arrest warrant. Thezan denied ever telling defendant that he would go free if he made a statement.

Assistant State’s Attorney John Hynes testified that he interviewed defendant from 12:45 a.m. to 1:15 a.m. on May 10, 1985. After interviewing the codefendant, he again interviewed defendant about the discrepancies in their two versions. Hynes further testified that defendant got food and beverage, then made a court reported statement, which he read and signed. Hynes stated that he did not tell defendant he would go free if he made a statement, that defendant did not request an attorney or public defender, and that no promises of leniency were made.

Concluding that the arrest was justified, the trial court denied the motion to quash arrest. Stating that the totality of the circumstances indicated that all statements were made freely and voluntarily after proper Miranda rights were given, the trial court also denied the motion to suppress the statement. The trial court found that defendant was not initially a suspect and that the arrest occurred after the detectives went to the crime scene and had it reprocessed by an evidence technician.

At the simultaneous bench trial, Detective Fitzsimmons’ testimony was essentially the same as his testimony during the motion hearing. In addition, he stated that defendant made an oral statement after being given his Miranda rights, stating that he and the codefendant were at the apartment where Ms. Adala was; there was a short conversation; and one of them took a drink from Ms. Adala’s bottle. Ms. Adala then left and went into her apartment. Looking for money, defendant and codefendant went to Ms. Adala’s apartment and knocked on the door. When Ms. Adala answered, they pushed the door in, and she fell on the bed. Both men went into the apartment.

Fitzsimmons then stated that one defendant said they both had sex or attempted to have sex with Ms. Adala, but the other defendant stated that only one of them had sex with her, that they located some money, and began to pile up the radios. They struck Ms. Adala with a pipe wrench several times in the head, once in the throat, and a couple of times in the chest. One of the defendants took a broom handle and placed it on top of Ms. Adala’s throat, stood on the handle, and began jumping and rocking on it because she would not die. Before leaving through the window, they placed a wedge that they located in the apartment on top of a small burner to start a fire. They then ran out the window, taking the money and the weapon. Defendant stated that the codefendant had stabbed and beaten Ms. Adala, while the codefendant blamed the violence on defendant. Fitzsimmons also stated that Ms. Adala’s apartment door had been locked; it was opened by the building manager; and that defendant denied in his oral statements that he had sexual intercourse with Ms. Adala.

John Ward testified that he and his brother, Marshall Lyons, were watching the 8 o’clock movie in their apartment with the door open. He saw Ms. Adala, defendant, and codefendant in the hall. When Ward asked Ms. Adala for a drink, she gave him a drink and walked down the hall. Then Ward saw defendant and codefendant walk down the hall toward their apartment.

There were stipulations that the cause of death was multiple stab wounds and a blunt injury to the head; there was semen present in the vagina; and there were no sperm present in the semen. Defendant’s and codefendant’s statements were then admitted into evidence. Over the defense counsel’s objection, the trial court allowed the codefendant’s statement to be admitted as evidence against defendant.

In his statement, defendant responded to the assistant State’s Attorney’s questions. Defendant stated that he saw Ms. Adala in the second-floor hallway during the evening of May 3, 1985. She was there with the codefendant and two other men. Someone offered defendant and codefendant a drink, but they both refused. Ms. Adala then left and went to her apartment. As defendant and codefendant went back to their apartment, defendant asked the codefendant, “I wonder if she’s got any money?” and the codefendant responded, “I don’t know, we have to find out or whatever.”

Defendant’s statement also said that the two men then went to Ms. Adala’s apartment and knocked on the door, which was partially open. When she came to the door, the codefendant forced himself in and said, “Hi, baby, how’s it going?” He then told her that he wanted to make love to her. Defendant looked around the apartment for money or anything to take, and picked up $5 and some change from the table. At that time, the codefendant was kissing Ms. Adala, who was resisting. The codefendant then took off both her pants and his pants, and put his penis in her vagina while he was on top of her. Ms. Adala was attempting to push him away, but she did not have the strength. The codefendant then hit Ms. Adala four or five times on the side of her face and head with an open hand, grabbed a dish towel, and tried to strangle her. Ms. Adala was “grabbing the towel, kicking, trying to get it out.”

The codefendant then hit Ms. Adala with a pipe wrench four or five times on top of her skull. Earlier in the day, defendant had seen a similar pipe wrench in his apartment. There was a continuous flow of blood, and her eyes were still open. Saying “die, bitch, die,” the codefendant grabbed a piece of wood, like a broom handle, placed it across her throat, put his foot on each end, and continuously jumped up and down on her throat. Ms. Adala was kicking violently. The codefendant then grabbed an 8- to 10-inch long, serrated bread knife that was on the counter within arm’s reach of the bed, and stabbed her in the throat and chest five times. Ms. Adala was still kicking, but appeared to be losing strength.

The codefendant then got off Ms. Adala and watched her for three or four minutes, waiting to make sure she was dead. She looked like she was bleeding to death. Defendant then took a scotch bottle and a pack of chewing gum. Going through the pockets of a green jacket and taking some money, the codefendant gave defendant $5 or $10. They both then left through the window.

The codefendant also answered the assistant State’s Attorney’s questions in his statement stating that he saw Ms. Adala on the night of May 3, 1985, speaking to two men in apartment 207. The codefendant walked up and spoke to the two men, but did not know Ms. Adala. Defendant did not arrive until after Ms. Adala returned with a bottle for the two men. As they were sitting there, Ms. Adala offered both defendant and codefendant a drink, but they both refused. Defendant and codefendant then went toward their apartment, and Ms. Adala went toward her apartment.

Walking back to their apartment, defendant asked the codefendant, “[d]o you think this lady have [sic] any money?” The codefendant responded “I don’t know but we can find out” and knocked on Ms. Adala’s door. She opened the door wide, and the codefendant pushed her to the bed. Defendant closed and locked the door, then “pushed up a white clock and a brown AM-FM clock radio.” The codefendant told him that he did not want to take that stuff because it was petty.

Defendant then said “well, let’s fuck the lady.” When the codefendant pulled her pants halfway down, defendant said he was going to go first. The codefendant said “no, let me go first,” and pulled his pants halfway to his knees. The codefendant then stated that his penis touched her vagina, but wouldn’t go in. She did not resist, but lay there pushing his shoulders up. Then, defendant pulled his pants halfway down and got on top of her. She was also pushing him away. When defendant got up, he said that he could not climax.

The codefendant then told defendant that they had to do something with Ms. Adala so that she could not tell the police. When defendant suggested tying her up, the codefendant said that was not good enough. Defendant then took “the crowbar — I mean the thing, the wrench” from his back pocket, and hit her six times on the top of her head. There was blood all over her head. Complaining that she was not yet knocked out or dead, defendant asked for something with which to choke her. The codefendant picked up a broken broomstick and gave it to defendant, who put the broom on her neck and started choking her. He stood with each foot on either side of her neck and bounced three times. Ms. Adala was “jibbering, pissed all over herself.” Her eyes were going up in her head. Defendant said “this bitch ain’t dead yet,” then told the codefendant to “look around for something.”

The codefendant then picked up a butcher knife from the cabinet by the door, grabbed it by the blade, and tossed it to defendant, who grabbed it by its wooden handle and stabbed Ms. Adala in the neck. The codefendant then turned off the light so that no one in the next building would see them, but he could hear the knife going into her. They then turned on the light and looked for money, but did not find any. After the codefendant turned over a hot plate on top of a brown wig, they took the knife and pipe wrench. In a green coat, defendant found a wallet with $40 and some change. He gave the codefendant $20. Defendant took the other $20 and threw the change at Ms. Adala, who was still moaning. They then left through the window.

Closing arguments were waived. Without any specific findings, the trial court found both defendants guilty of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)), but not guilty of home invasion (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 11(a)) and aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)).

On appeal, defendant asserts that his statement must be suppressed because it was a product of an illegal detention and police deception. He first contends that he was arrested at the police station without probable cause since the only evidence against him was that he and the codefendant gave conflicting versions of their whereabouts at the time of the murder.

Defendant concedes that the police acted properly in asking him and the codefendant to go to the police station for questioning since they believed that they were with Ms. Adala on the evening of her murder. While the conflicting stories by defendant and codefendant warranted further investigation and may have focused suspicion on one of them, defendant argues, it was not probable cause to arrest him. In determining whether an arrest took place, the question is whether a reasonable, innocent person in the defendant’s situation would have considered himself arrested or free to go. (People v. Reynolds (1983), 94 Ill. 2d 160, 165.) Probable cause for arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Creach (1980), 79 Ill. 2d 96, 101.) Although mere suspicion that the person arrested has committed the offense is an insufficient basis for arrest, evidence sufficient to convict is not required. Reynolds, 94 Ill. 2d at 166.

Defendant relies on Reynolds, where the Illinois Supreme Court ruled that the police lacked probable cause to arrest even though the suspects gave differing responses as to where they got the equipment. (94 Ill. 2d at 166.) When the police stopped a trailer for a taillight violation, they observed suspicious looking boxes in the rear of the trailer. The police asked the occupants about the boxes, but were given vague and conflicting responses. After a consensual search, the police arrested the defendants. The supreme court ruled that there was no probable cause to arrest because there was no known criminal activity at the time of the arrest even though the circumstances were suspicious. (Reynolds, 94 Ill. 2d at 166.) In contrast, Fitzsimmons and Thezan knew of Ms. Adala’s murder when they arrested defendant. They also knew that defendant was with Ms. Adala shortly before she was murdered even though defendant told them that he was at work that night.

Defendant also cites People v. Williams (1977), 53 Ill. App. 3d 266, 272, where the court held that there was no probable cause to arrest even though the defendant told the police during questioning that he had been told that another person committed the murder during an abortive robbery attempt. The court stated that the defendant did not have such intimate knowledge of crime details that suspicion would be focused on him. Williams, 53 Ill. App. 3d at 272.

In response, the State relies on Creach, where the Illinois Supreme Court ruled that there was sufficient evidence for the trial court to rule that probable cause to arrest existed. At the time that the police officers took the defendant into custody, they knew that the defendant was living with the victim, that she most likely had been killed sometime after midnight, that the defendant had last seen her just 51/2 hours prior to the time the body was discovered, and that he had unexplainedly left for Ohio in the victim’s car. Creach, 79 Ill. 2d at 102.

In this case, the trial court found that the arrest took place after the officers went back to the crime scene, the scene had been reprocessed by the evidence technician, the police officers gave defendant his Miranda warnings, and defendant told them he received $5. Where testimonial evidence is conflicting, it is the role of the trial judge to determine credibility. (People v. Jacquith (1984), 129 Ill. App. 3d 107, 113.) Since the trial court’s finding that probable cause to arrest existed was not manifestly erroneous (Reynolds, 94 Ill. 2d at 165), it is affirmed.

Defendant also argues that his statement was involuntary because he was 19 years old, had never before been arrested, and that deliberate false statements were made about the codefendant’s allegations against him. (People v. Bridges (1990), 198 Ill. App. 3d 534, 538-39.) Voluntariness of a confession is determined by examining the totality of the circumstances (People v. Prim (1972), 53 Ill. 2d 62, 70), with consideration given to both the individual characteristics of the accused and the details of the interrogation. (Bridges, 198 Ill. App. 3d at 538.) Relevant factors of the individual characteristics include the defendant’s age, education, mental capacity (People v. Martin (1984), 102 Ill. 2d 412, 427), emotional characteristics, previous experience with the criminal system, and whether the confession was induced by police deception. (Bridges, 198 Ill. App. 3d at 538.) Relevant factors of the interrogation include the duration of the questioning (Martin, 102 Ill. 2d at 427), whether defendant was subjected to physical punishment (Bridges, 198 Ill. App. 3d at 538), offers of leniency (People v. Ruegger (1975), 32 Ill. App. 3d 765, 769), other offers or promises that induce the confession (People v. Koesterer (1976), 44 Ill. App. 3d 468, 478), falsely aroused sympathy (People v. Tanser (1979), 75 Ill. App. 3d 482, 485), prior refusals to answer questions (Ruegger, 32 Ill. App. 3d at 770), and whether defendant was informed of his constitutional rights (Martin, 102 Ill. 2d at 427).

A trial court’s finding that a confession was voluntary will not be overturned unless it is against the manifest weight of the evidence. (Prim, 53 Ill. 2d at 70.) The totality of the circumstances surrounding the statement indicates that the trial court’s denial of the motion to suppress defendant’s statement was not against the manifest weight of the evidence. Therefore, it is affirmed.

Defendant next asserts that his rights under the United States Constitution’s sixth and fourteenth amendments were violated by the admission and use, over objection, of his codefendant’s out-of-court statement against him where the codefendant did not testify and was not subjected to cross-examination. The State contends that the issue was waived since it was not raised in defendant’s motion for a new trial. Immediately following the trial court’s finding of guilty, the defense counsel asked the court if he could make an oral motion for a new trial. Without giving counsel the opportunity to make a formal motion or to argue the merits of the motion, the trial court responded that the motion was denied. When the assistant State’s Attorney objected to the motion for a new trial being made orally, the trial judge ignored the objection and proceeded with the sentencing hearing. There had been a timely objection to the use of codefendant’s statement made at trial a few minutes before the oral motion for a new trial was denied.

While the failure of the defendant to raise an issue in a written motion for a new trial generally constitutes a waiver of that issue, the plain error rule is applied where substantial rights are affected or where the evidence is closely balanced. (People v. Pickett (1973), 54 Ill. 2d 280, 283.) Since the right of confrontation is a substantial right, this issue is reviewed under the plain error rule.

Defendant’s argument is clear and simple. He asserts that the co-defendant’s out-of-court statement implicating him is inadmissible against him because it is incompetent hearsay evidence. Defendant further claims that he is constitutionally entitled to a new trial since the statement’s admission violated his sixth and fourteenth amendment right to confrontation. Finally, defendant asserts that the error was not harmless beyond a reasonable doubt since the only evidence that he committed any violence against the victim was the codefendant’s statement and his own custodial confession, which he contends was the product of an illegal arrest and police coercion.

Contending that the codefendant’s statement was not admitted against the defendant, the State responds by arguing that Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, should not be extended to bench trials. The court in Bruton ruled that limiting instructions must be given to the jury in joint trials when the codefendant’s confession is admitted only against the codefendant. (391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) An examination of this record, however, reveals that the codefendant’s statement was admitted against defendant.

The confrontation clause of the sixth and fourteenth amendments guarantees the right of a criminal defendant to be confronted with the witnesses against him, including the right to cross-examine those witnesses. (Cruz v. New York (1987), 481 U.S. 186, 189, 95 L. Ed. 2d 162, 169, 107 S. Ct. 1714, 1717.) These rights are essential and fundamental requirements for a constitutionally fair trial. (Lee v. Illinois (1986), 476 U.S. 530, 540, 90 L. Ed. 2d 514, 525, 106 S. Ct. 2056, 2062.) In a joint trial, the codefendant’s pretrial confession implicating the defendant is not admissible against the defendant unless the codefendant testifies and is subject to full and effective cross-examination. (Cruz, 481 U.S. at 190, 95 L. Ed. 2d at 169, 107 S. Ct. at 1717; People v. Collins (1989), 184 Ill. App. 3d 321, 327.) Traditionally, a co-defendant’s arrest statement, which is hearsay, has been viewed with special suspicion. (Lee, 476 U.S. at 541, 90 L. Ed. 2d at 526, 106 S. Ct. at 2062.) Because of a strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statement implicating the defendant is inherently unreliable. (Lee, 476 U.S. at 546, 90 L. Ed. 2d at 530, 106 S. Ct. at 2065.) Since the statement is presumptively suspect, it must be subject to the scrutiny of cross-examination. Lee, 476 U.S. at 541, 90 L. Ed. 2d at 526, 106 S. Ct. at 2062.

A codefendant’s confession may be admissible without confrontation, however, if it has sufficient independent indicia of reliability (Collins, 184 Ill. App. 3d at 329) that rebuts its unreliability. (Ohio v. Roberts (1980), 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539.) Whether the codefendant’s confession interlocks with the defendant’s confession relates to its reliability (Cruz, 481 U.S. at 192, 95 L. Ed. 2d at 171, 107 S. Ct. at 1719), but is not necessarily reliable simply because some of the facts it contains interlock with the facts in the defendant’s confession. (Lee, 476 U.S. at 545, 90 L. Ed. 2d at 529, 106 S. Ct. at 2064.) When codefendants’ confessions are identical in all material respects, the likelihood that they are accurate is significantly increased. (Cruz, 481 U.S. at 192, 95 L. Ed. 2d at 171, 107 S. Ct. at 1719.) When the discrepancies between the statements are not insignificant, however, the codefendant’s confession is not admissible. (Lee, 476 U.S. at 545, 90 L. Ed. 2d at 529, 106 S. Ct. at 2064.) A finding of a confession’s voluntariness has no relevance to whether the codefendant’s confession is also free from any desire, motive, or impulse to lie. Lee, 476 U.S. at 544, 90 L. Ed. 2d at 528, 106 S. Ct. at 2064.

To assure a fair trial, Illinois evidentiary law also prohibits a codefendant’s statement from being admitted against the defendant unless there is some other exception to the hearsay rule. (People v. Duncan (1988), 124 Ill. 2d 400, 414.) Defendant relies on Lee, which reversed the defendant’s conviction because the trial court erroneously relied on the codefendant’s custodial confession as substantive evidence against the defendant. The court concluded that the codefendant’s statement, as the confession of an accomplice, was presumptively unreliable and that it did not bear sufficient independent indicia of reliability to overcome that weighty presumption. (Lee, 476 U.S. at 546, 90 L. Ed. 2d at 530, 106 S. Ct. at 2065.) Although the codefendant’s confession interlocked with the defendant’s statement in several respects, the court stated that there were significant differences regarding the roles played by the two defendants in one murder and the question of premeditation in the other murder. Lee, 476 U.S. at 546, 90 L. Ed. 2d at 529-30, 106 S. Ct. at 2065.

Defendant also cites Collins, where the codefendants’ confessions described substantially similar actions although they differed regarding which defendant performed the alleged rape on the victim and which defendant searched the victim’s possessions. (184 Ill. App. 3d at 328.) In a supplemental opinion, this court wrote that the statements of the nontestifying codefendants lacked sufficient independent indicia of reliability because each defendant “pointed the finger” at his codefendants, and that the circumstances surrounding the taking of the statements showed that the defendants provided oral statements to the police upon being questioned, that each defendant knew the others were being held and questioned by police, and there was limited corroborating evidence. Collins, 184 Ill. App. 3d at 337-38.

The State misses the point of defendant’s argument by concentrating on the Bruton rule. Instead of addressing defendant’s arguments, the State argues against extending the Bruton rule to bench trials. Defendant, however, makes no such argument in his brief. In fact, he never even mentions Bruton. Therefore, the State misplaces its reliance on cases that analyze limiting instructions in a jury trial. See Bruton, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620; Cruz, 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714; Lee, 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; Dutton v. Evans (1970), 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210; Collins, 184 Ill. App. 3d 321; People v. McNeal (1977), 56 Ill. App. 3d 132; People v. Vinson (1977), 49 Ill. App. 3d 602.

While it is true, as the State argues, that a judge is presumed to know the law and only considers competent evidence (People v. Harris (1974), 57 Ill. 2d 228, 231), that presumption has been rebutted in this case. The trial court improperly admitted the nontestifying codefendant’s statement when it overruled the defense counsel’s objection to that statement being admitted against defendant.

Furthermore, the codefendant’s statement did not have sufficient independent indicia of reliability to be admitted. The statement was given in response to the questions of police, who had already interrogated defendant; the statement was not tested in any manner by contemporaneous cross-examination by counsel or its equivalent; and the statement, though court-reported, was unsworn. (Lee, 476 U.S. at 544, 90 L. Ed. 2d at 528, 106 S. Ct. at 2064.) While the statements interlocked in several parts, they contradicted each other in significant ways, including who was responsible for the acts of violence. The defendant’s statement was that the codefendant committed the acts of violence, while the codefendant’s statement pointed out that defendant committed the acts of violence. Also, the codefendant’s statement included information regarding the locked apartment door, piled up radios, and a wig being placed on the hotplate, whereas defendant’s statement made no mention of those facts.

Finally, the State argues that even if the trial court erroneously considered the codefendant’s statement against defendant, the error was harmless. When a trial error affects a Federal constitutional right, as here, it is reversible error unless it is harmless beyond a reasonable doubt. (People v. Owens (1984), 102 Ill. 2d 88, 104; People v. Freeman (1981), 100 Ill. App. 3d 478, 481.) In determining whether the error was harmless, the sufficiency of the evidence proving guilt beyond a reasonable doubt must be considered. (People v. Pizzi (1981), 94 Ill. App. 3d 415, 421.) If the evidence of the defendant’s guilt is uncontroverted and/or so overwhelming that the constitutional violation resulting from its admission at trial did not have an effect on the verdict, then the error is harmless beyond a reasonable doubt. People v. Dixon (1988), 169 Ill. App. 3d 959, 978.

The State contends that the evidence against defendant was overwhelming. In support of that contention, the State cites the testimony of John Ward and Marshall Lyons as well as defendant’s and codefendant’s custodial statements. First, in addressing the issue of whether the error is harmless beyond a reasonable doubt, we must consider the evidence without the inadmissible codefendant’s statement. At most, the testimonies of Marshall Lyons and John Ward place defendant, codefendant, and Ms. Adala on the same floor on the evening of the murder. Lyons and Ward saw Ms. Adala walk toward her apartment and saw defendant and codefendant walk toward their apartment. Both apartments were in the same direction.

We are then left with the physical evidence and defendant’s statement as the only competent evidence. In his statement, defendant does not admit using any violence against Ms. Adala. Defendant admits going to Ms. Adala’s apartment with the codefendant to see if she had any money. Defendant also admits being present when the co-defendant raped and beat Ms. Adala with his open hand and a pipe wrench. Defendant stated that he saw the codefendant try to strangle Ms. Adala with a dish towel and broomstick, then stab her with a butcher knife. Defendant, however, does not admit taking part in the violence. He admits leaving through the window after taking a bottle of scotch, a pack of chewing gum, and about $5.

Defendant’s statement contradicts the codefendant’s statement in significant ways, and there are discrepancies between defendant’s statement and the physical evidence. Defendant’s statement mentions nothing about radios stacked in the apartment, the locked apartment door, or the wig on the hotplate, which caused the fire alarm in Ms. Adala’s apartment to sound.

The State also contends that any error in admitting the codefendant’s statement is harmless because defendant’s statement alone would make him guilty of murder under the theory of accountability. For a conviction on the accountability theory, the State must establish beyond a reasonable doubt that: (1) the defendant solicited, ordered, abetted, agreed, or attempted to aid another in the planning or commission of the crime; (2) the defendant’s participation took place before or during the commission of the crime; and (3) the defendant had the concurrent, specific intent to promote or facilitate the commission of the crime. (People v. Deatherage (1984), 122 Ill. App. 3d 620, 624; Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2.) Mere presence at the scene of the crime and knowledge that a crime is being committed is insufficient to establish guilt by accountability. (People v. Evans (1981), 87 Ill. 2d 77.) Nevertheless, circumstances showing there was a common design to commit a crime (People v. Tate (1976), 63 Ill. 2d 105, 109), or presence at the scene of the crime in addition to acts after its commission may be enough. People v. McBounds (1989), 182 Ill. App. 3d 1002, 1016.

A defendant cannot be convicted based on a confession alone. (People v. Neal (1985), 111 Ill. 2d 180, 194; Collins, 184 Ill. App. 3d at 333.) There must be some independent evidence, exclusive of the confession, tending to show that a crime occurred and that defendant committed it. (Neal, 111 Ill. 2d at 194.) Here, the evidence corroborating the facts contained in defendant’s confession was not so overwhelming that the admission of the nontestifying codefendant’s statement against defendant was harmless beyond a reasonable doubt.

Based on the foregoing, the circuit court’s judgment denying defendant’s motions to quash arrest and suppress his statement is affirmed. Further, defendant’s conviction is reversed and remanded for a new trial. At the new trial, the codefendant’s statement is not to be admitted against defendant.

Affirmed in part; reversed and remanded in part.

GREIMAN, P.J., and TULLY, J., concur.

       Justice White heard oral arguments prior to his retirement. Justice Tully was substituted, read the briefs and the record and concurred with the decision.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN DAVIS, Defendant-Appellant.
    First District (3rd Division)
    Nos. 1—87—2482, 1—89—1778 cons.
    Opinion filed March 31, 1992.

      Chester L. Blair, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Margaret Iwerebon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Steven Davis was found guilty of robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 1(a)) and burglary of an automobile (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a)) in a bench trial and sentenced to three years’ probation. Defendant was charged along with codefendant Brian Coleman, who is not a party to this appeal. On appeal, defendant argues that (1) he was denied effective assistance of counsel; (2) he was denied a fair trial when he was not consulted about the nature and circumstances surrounding the substitution of defense counsel; and (3) he did not knowingly and understanding^ waive his right to a jury trial. We affirm.

At approximately 5:30 p.m. on November 24, 1986, Carmen DeVivies was driving northbound on Pulaski Road in Chicago, Illinois, when she stopped her automobile for a red light at the intersection of Pulaski and Madison streets. While stopped at the red light, the front passenger window of her automobile was shattered and simultaneously a man reached through the broken window and grabbed onto DeVivies’ purse. After a brief struggle, the offender succeeded in wrestling the purse from DeVivies and ran away from the scene of the crime. DeVivies immediately drove away and later called the police. DeVivies testified that she was unable to observe the face of the offender.

James Lemon, a member of two neighborhood crime-watch organizations, was patrolling the intersection of Pulaski and Madison streets along with three other individuals because of the recent increase in “smash and grab” incidents that had occurred at that intersection. From his observation point in the parking lot of a liquor store located 75 feet south of the intersection, Lemon observed defendant smash the front passenger window of DeVivies’ red Nissan Sentra and reach into the automobile while codefendant stood two to three feet away surveying the area. After defendant retrieved the purse, Lemon observed defendant and codefendant flee south on Pulaski Road and turn east on Monroe Street. Lemon and the three others chased after defendant and codefendant, but were unable to catch the offenders as they headed eastbound on Monroe Street. Moments later, an unmarked Chicago police vehicle which had been assigned to patrol Pulaski Road for “smash and grab” incidents was flagged down by Lemon. Lemon told the police officers what he and the others had observed and gave them a description of defendant and codefendant.

The police officers began to search for the individuals that Lemon described. When defendant and codefendant spotted the police, they started running northbound on Pulaski Road, but were immediately apprehended. The police officers returned defendant and codefendant to the scene of the crime, where Lemon identified them as the individuals whom he had observed smash the window of the red Nissan Sentra and steal the occupant’s purse. A search of defendant and co-defendant did not recover any of the stolen items.

The trial court appointed Public Defenders Steven Venit and Paula Lundberg to represent defendant and codefendant in this matter. When defendant requested a bench trial and codefendant requested a jury trial, separate representation of defendant and codefendant became necessary because of the potential for a conflict of interest involving their differing defenses. Following defendant’s jury waiver, Venit, who had been the lead attorney working up both defendant and codefendant’s cases, assumed sole representation of co-defendant, while Lundberg, Venit’s partner at the public defender’s office, assumed sole representation of defendant.

Following a bench trial, defendant was convicted of robbery and burglary of an automobile and sentenced to one year’s intensive probation followed by two additional years of felony probation. Defendant filed a petition for post-conviction relief, alleging that he was deprived of his right to effective assistance of counsel. Following a hearing, the trial court denied defendant’s post-conviction petition. This appeal followed.

Defendant first argues that he was denied his right to effective assistance of counsel as guaranteed by the sixth amendment to the United States Constitution. We disagree. Recently in People v. Eddmonds (1991), 143 Ill. 2d 501, 510-11, 578 N.E.2d 952, 956, our supreme court reaffirmed the application of the two-part test enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, for evaluating whether a defendant has received effective assistance of counsel. (See also People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Under the Strickland test, a defendant must prove in a post-conviction hearing that defense counsel’s errors were so objectively incompetent that counsel was not functioning as “counsel” as guaranteed by the sixth amendment. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Furthermore, if defense counsel’s incompetence is proven, a defendant must also demonstrate that counsel’s deficient performance substantially prejudiced his or her defense so that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) After reviewing the record of defense counsel’s representation of defendant in its totality, we hold that defendant failed to prove that defense counsel’s representation was incompetent.

Defendant argues that defense counsel committed various errors demonstrating the incompetency and ineffectiveness of counsel, including defense counsel’s failure to make an opening statement, her limited cross-examination of DeVivies, Lemon and Officer Zielinski, her failure to use any exhibits or photos at trial, her failure to visit the scene of the crime, her failure to meet with defendant or interview witnesses before trial, her failure to make an argument in support of her motion for a directed verdict, her failure to call defendant’s aunt to testify as an alibi witness and her failure to allow defendant to testify in his own behalf. We will address each of these contentions separately.

Defendant first contends that he received ineffective assistance of counsel because defense counsel failed to make an opening statement. This contention is without merit. There is a strong presumption that counsel has performed in a professionally competent manner, and a defense counsel’s decision to make or waive an opening statement on behalf of a defendant is a question of judgment in strategy or tactics that will not, in and of itself, demonstrate the ineffectiveness of counsel. (People v. Whittaker (1990), 199 Ill. App. 3d 621, 627-28, 557 N.E.2d 468, 472; People v. Georgev (1967), 38 Ill. 2d 165, 169, 230 N.E.2d 851, 854.) Only the most egregious of tactical or strategic blunders may provide a basis for a violation of a defendant’s right to effective assistance of counsel. People v. Kubik (1991), 214 Ill. App. 3d 649, 661, 573 N.E.2d 1337, 1345.

An opening statement is useful to elucidate issues in a jury trial or in a case where the issues are particularly complex. In the present case, however, defendant was not being tried by a jury and the issues were not unduly complex. Moreover, codefendant’s counsel made an introductory statement to the court. Thus, any additional statement by defendant’s counsel would merely have been repetitive. Accordingly, we conclude that defense counsel’s failure to make an opening statement did not violate defendant’s right to effective assistance of counsel.

Defendant’s second contention is that he received ineffective assistance of counsel because defense counsel failed to effectively cross-examine the State’s prosecution witnesses. This contention is also without merit. Our review of the record reveals that defense counsel’s cross-examination of the State’s prosecution witnesses was sufficiently comprehensive to satisfy an objective standard of competency.

First, during the cross-examination of DeVivies, defense counsel attempted to establish that her ability to view and perceive the crime was impeded by darkness. Additionally, defense counsel elicited from the complaining witness that she could not positively identify defendant as the individual who broke the window of her automobile and stole her purse.

Second, during the cross-examination of Lemon, the only identifying witness presented by the State, defense counsel attempted to undermine his credibility by eliciting from him that because it was 5:30 p.m. and the streetlights had already come on, he could have been mistaken as to defendant’s identity. Furthermore, defense counsel elicited from Lemon that there were many people in the area at the time of the offense, and presented the possibility to the trier of fact that the offender could have been someone else other than defendant. Finally, defense counsel extracted from Lemon that the location of his van may have been so far away from the scene of the crime that he could not have been close enough to make a positive identification of defendant.

Third, during the cross-examination of Officer Zielinski, defense counsel elicited from the witness that he did not at any time observe defendant or codefendant in possession of a purse, that none of the contents of DeVivies’ purse were found in either defendant’s or codefendant’s possession, and that he did not witness defendant commit the theft of DeVivies’ purse. We, therefore, hold that there is nothing incompetent about defense counsel’s cross-examination of the State’s prosecution witnesses. Defense counsel attempted to impeach, undermine and obfuscate the witnesses’ testimony during their direct and cross-examination. Her questioning was thorough, comprehensive and effective, eliciting responses that raised pertinent questions as to defendant’s guilt. Accordingly, we conclude that defense counsel did not fail to vigorously cross-examine the State’s prosecution witnesses so as to violate defendant’s right to effective assistance of counsel.

Defendant’s third contention is that his right to effective assistance of counsel was violated because defense counsel failed to use any exhibits or photos at trial even though a photo of the crime scene taken by codefendant’s counsel was available for use at trial. This contention is also without merit. Defense counsel’s decision to use or not to use an exhibit or photo is clearly a strategic or tactical decision that will not be disturbed on review. Accordingly, we conclude that defense counsel’s decision not to use exhibits or photos at defendant’s trial did not violate his right to effective assistance of counsel.

Defendant’s fourth contention is that defense counsel’s failure to visit the scene of the crime violated his right to effective assistance of counsel. There are circumstances in which we would find that defense counsel’s failure to visit the scene of the accident or crime would not meet the objective standard of competence set forth in Strickland. In the present case, however, where the facts, legal issues and crime scene are so elementary, we conclude that defendant was not prejudiced by defense counsel’s failure to visit the crime scene. Accordingly, defendant’s right to effective assistance of counsel was not violated by defense counsel’s failure to visit the scene of the crime.

Defendant’s fifth contention is that defense counsel’s failure to meet with defendant or interview witnesses before trial violated his right to effective assistance of counsel. Defendant testified that he did not meet with or discuss any of the facts of the case with Lundberg before his trial began. Lundberg testified, however, that she first met with defendant in March 1987, more than one month before defendant’s trial began, and had interviewed defendant at length about his defense.

Defendant relies on People v. Wallace (1982), 106 Ill. App. 3d 580, 435 N.E.2d 1322, a pre-Strickland case where the court held that defendant was denied the effective assistance of counsel when he met his attorney for the first time on the day of the trial and proceeded immediately to trial shortly thereafter.

Assuming arguendo that we adopt defendant’s version that he had never met Lundberg prior to the day of trial, Wallace is still distinguishable from the present case. Unlike in Wallace, where the attorney had absolutely no familiarity with the facts and legal issues of the case, Lundberg had complete understanding of the factual and legal issues of defendant’s case. Lundberg was" Venit’s partner at the public defender’s office and she had been working up the case with Venit. Venit had been to the scene of the crime, interviewed witnesses, taken photographs and otherwise become acquainted with the relevant facts and legal issues involved. Lundberg’s familiarity with the case was clearly illustrated by her cross-examination of the State’s prosecution witnesses, where she brought out and articulated for the trial court the weaknesses in the State’s case against defendant. We, therefore, conclude that defense counsel’s failure to meet with defendant or interview witnesses before trial did not violate defendant’s right to effective assistance of counsel.

Defendant’s sixth contention is that defense counsel’s failure to make an argument in support of a directed verdict violated his right to effective assistance of counsel. We disagree. As discussed previously, only the most egregious of tactical or strategic blunders may provide a basis for a violation of a defendant’s right to effective assistance of counsel. (Kubik, 214 Ill. App. 3d at 661, 573 N.E.2d at 1345.) Defense counsel made a motion for a directed verdict, thus preserving all of defendant’s post-trial rights. Accordingly, we conclude that defense counsel’s failure to make an argument in support of defendant’s motion for a directed verdict does not violate defendant’s right to effective assistance of counsel.

Defendant’s seventh contention is that defense counsel’s failure to call defendant’s aunt as an alibi witness violated his right to effective assistance of counsel. This contention is also without merit.

The decision of whether to call a witness is a tactical and strategical decision in which defense counsel is given wide latitude in making decisions. (People v. Flores (1989), 128 Ill. 2d 66, 85-86, 538 N.E.2d 481, 485-86; see also Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) Defense counsel testified that she informed defendant’s aunt that it could possibly hurt defendant’s case if she testified at trial because Officer Zielinski, the arresting officer, had previously testified that defendant was in custody at the time in which she was prepared to testify that defendant was at home with her in her basement lifting weights. We conclude that defense counsel could have reasonably concluded as a matter of trial strategy that defendant’s aunt’s testimony would not have aided in defendant’s case. Accordingly, defense counsel’s failure to call defendant’s aunt as an alibi witness did not violate defendant’s right to effective assistance of counsel.

Defendant’s eighth contention is that defense counsel rested defendant’s case without calling him to testify in his own defense after he repeatedly asked defense counsel for the opportunity to testify. This contention is also without merit. The trial court ruled following the post-conviction hearing that defense counsel advised defendant that “[I]t was his decision and only his decision whether to testify or not. The defendant on his own elected not to testify.” We hold that the trial court’s ruling is not contrary to the manifest weight of the evidence.

At the post-conviction hearing, defense counsel testified that she discussed with defendant on numerous occasions whether he should take the stand in his own defense. Defense counsel testified that she thought that argument of the facts would be the best method to create a reasonable doubt as to defendant’s guilt and that defendant’s testimony, in her opinion, would only be damaging to his case. Defense counsel further testified that she advised defendant that she did not know what probative value defendant’s testimony would have since it would be a strict denial of what had happened, but left the choice of testifying up to defendant.

Defendant testified at the post-conviction hearing that he repeatedly asked defense counsel when he was going to be able to testify after she had explained to him that he had a right to testify in his own defense. Defendant further testified that he did not ask the judge if he could testify because defense counsel told him to “be quiet.”

We find defense counsel’s testimony at the post-conviction hearing to be more credible than defendant’s testimony. Defense counsel had more than six years of experience with the public defender’s office, including more than I1/2 years in the felony trial division. Defense counsel’s testimony is clear and consistent. Defense counsel would have little reason not to call defendant to testify in his own defense if he asked to testify, even if he was jeopardizing his chances for acquittal. On the other hand, defendant’s credibility is suspect. Defendant’s testimony throughout the hearing was unbelievable and self-serving, corroborated by the fact that defendant had little to lose by not telling the truth. We, therefore, conclude that defense counsel did not prevent defendant from testifying in his own defense at trial.

For all the foregoing reasons, we conclude that defense counsel’s representation of defendant did not fall below an objective standard of competency so as to deprive defendant of a fair trial. To the contrary, the record demonstrates that defense counsel’s representation was anything but incompetent. Defense counsel demonstrated a strong knowledge of the facts of the case and the legal issues involved. Defense counsel’s tactics with regard to omitting to call defendant’s aunt to testify as an alibi witness or to call defendant to testify in his own defense were strategically sound. Her objections to the prosecutor’s examination of the State’s prosecution witnesses were timely and correct, and her cross-examination of these witnesses elicited the weaknesses and inconsistencies in the State’s case. Accordingly, we hold that defendant was not denied his right to effective assistance of counsel as guaranteed by the sixth amendment to the United States Constitution.

Defendant’s second argument on appeal is that he was denied a fair trial when he was not consulted about the nature and circumstances surrounding the substitution of public defenders. We disagree.

First, the record does not support defendant’s supposition that he was not consulted about the nature and circumstances surrounding Venit’s separation from his case. Defendant was present during all court proceedings and was present when the court cursorily explained the necessity of Venit’s separation from defendant’s case. While the record does not demonstrate that a detailed explanation was made to defendant of the necessity for Venit’s separation from the case, it can reasonably be inferred that defendant, an 18-year-old man, was fully aware and apprised of the circumstances involving Venit’s separation from the case.

Second, the record is devoid of any evidence that defendant objected to the removal of Venit as his counsel. Defendant failed to mention or imply to either Venit, Lundberg or the trial court that he did not understand why Venit was no longer working on his behalf or that he was dissatisfied that Lundberg was acting as his sole defense counsel. The record reflects that defendant cooperated in toto with Lundberg at trial, and it was only after defendant was convicted of the charges that defendant became displeased with her representation. The fact that defendant mentioned for the first time on appeal that he did not understand and was not consulted about Venit’s separation from the case can only be interpreted to mean that defendant fully consented to the separation. Accordingly, we conclude that defendant’s argument that he was denied a fair trial when he was not consulted about the nature and circumstances surrounding the substitution of public defenders is without merit.

Defendant’s final argument on appeal is that his waiver of the right to a jury trial was not knowingly and understandingly made in light of the substitution of attorneys immediately following his jury waiver. This argument is also without merit.

It is undisputed that defendant made a waiver of his right to a jury trial in open court. Defense counsel Venit informed the court that defendant intended to waive his right to a jury trial. The trial court then inquired of defendant whether he clearly understood his right to a jury trial, and the following dialogue took place in open court:

“THE COURT: All right. Mr. Davis, is that correct, as your attorney has indicated that you wish to waive your right to have a jury trial and have this case tried in front of myself as the judge sitting without a jury and I will determine whether you’re guilty or not.
DEFENDANT: Yes, sir.
THE COURT: Do you understand what a jury trial is?
DEFENDANT: Yes, sir.
THE COURT: I’ve been handed this document; is this your signature?
DEFENDANT: Yes, sir.
THE COURT: Do you understand by signing this document and filing this document with the court that you are waiving or giving up your right to have a jury trial on this matter?
DEFENDANT: Yes, sir.”

Defendant contends, however, that his waiver of the right to a jury trial was not knowingly and understandingly made because he waived the right to a jury trial while he believed that he would be represented by Venit, and that the decision to waive his right to a jury trial was based on and intertwined with the confidence and trust that he had in Venit. This argument is logically and legally meritless. Defendant cites various cases in support of his argument; however, none of the cases stands for the proposition of law which defendant seeks for us to adopt. We, therefore, hold that defendant’s waiver of his right to a jury trial, given voluntarily in open court, was made knowingly and understandingly.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

TULLY and CERDA, JJ., concur.

       Justice White heard oral arguments in this case prior to his retirement. Justice Tully was designated the third member of the panel and has read the record, brief and listened to the tapes.