text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE RHOINEY, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2891
    Opinion filed June 28, 1993.
    Rehearing denied September 27, 1993.

      Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Veronica X. Calderon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant Eugene Rhoiney and codefendant Angelo Roberts were charged with the first-degree murder of decedent, Stephen Edwards. Defendant was also charged with armed violence, aggravated unlawful restraint and concealment of a homicidal death. Prior to trial, the circuit court granted defendant’s motion for severance, but denied his motions to quash his arrest and to suppress statements. A jury found defendant guilty of first-degree murder, and he was sentenced to natural life in prison without opportunity for parole. Defendant appeals his conviction and sentence. We affirm.

At trial, Officer Galbreth testified that on January 24, 1988, at approximately 9:45 a.m., he responded to a call concerning a body lying in the rear of the Jewel Foods Store at 3552 West Grand. Galbreth stated that it had snowed the previous evening and that the temperature was about 20 to 25 degrees. A Jewel security officer led Galbreth to the area where Jewel kept its trash bins. Galbreth noticed a white male’s body lying facedown. Galbreth testified that there was a portion of a blue and white patterned bed sheet tied around the face of the male as a blindfold. There were also parts of a green, yellow and white striped bed sheet tied around decedent’s neck, hands, knees and thigh area. After discovering the body, Galbreth called his supervisor, a detective from the violent crimes division, the mobile crime laboratory and the medical examiner.

When other police personnel arrived, the blindfold which was on decedent’s head was removed. Galbreth testified that he observed bruises and marks on the decedent’s face. The decedent’s shirt was blood soaked and, when removed, revealed slices in the right side of the decedent’s chest. Galbreth also saw gray duct tape around the decedent’s elbow.

Next, Detective William Wendt testified that he was assigned to investigate decedent’s homicide. Wendt’s testimony regarding the decedent’s body being bound with particular fabric of certain colors corroborates Galbreth’s testimony. After the crime laboratory division informed Wendt of decedent’s identity, he and his partner, Detective Pufpaf, went to decedent’s last known address, 3841 West Adams, knocked on the door and defendant answered. The detectives identified themselves and inquired whether defendant knew decedent. Defendant replied that decedent lived in the basement of the building. The detectives told defendant that decedent was found dead. Defendant invited the detectives into the house.

Wendt testified that he met Janice Pierce and Sharon Sullivan when he entered the house. Pierce, the owner of the house, gave the detectives permission to see the decedent’s room. The detectives went into the basement. There was a daybed directly outside of decedent’s room. The detectives noticed a green, yellow and white striped bed sheet underneath the cover blanket. Wendt testified that it appeared to be of the same material as that found on decedent. The detectives confiscated that sheet, a pillowcase and a fitted sheet with a blue and white pattern. A roll of gray duct tape was also recovered from a tool box that was in a milk crate in decedent’s room.

Defendant, Pierce and Sullivan agreed to go to the police station to be interviewed. Wendt interviewed defendant in the presence of Pufpaf. Defendant stated that he had known decedent for several years and introduced him to Pierce, who rented a room to decedent. Defendant said that a group of people watched the championship Tyson/Holmes fight at Pierce’s house on January 22, 1988. Decedent and his girl friend, Carolyn Lewis, were there. Then, defendant told the detectives that early the following morning, he heard an argument between Lewis and decedent. Lewis accused decedent of using her car while she was asleep and stealing $20 from her. Lewis left Pierce’s home around 6 to 7 a.m., but returned around 8:30 a.m. Upon returning, she told decedent that her video cassette recorder (VCR) was missing from her apartment and accused him of going to her apartment while she slept at Pierce’s home and stealing her VCR. Defendant claimed that he tried to calm Lewis down by telling her that he would attempt to find the VCR and by giving her $20. Lewis calmed down and left.

According to defendant, shortly after Lewis left, the telephone rang. Defendant answered the telephone. Defendant stated that the caller, who sounded like a black male, asked if there was “a white guy living in the building with you?” The caller then explained that “somebody stole my car and I found out its the white guy living in your building.” Defendant stated that he then handed the telephone to decedent. After the telephone conversation, defendant says he inquired about what was happening. Decedent said that someone witnessed a car being stolen and the caller was going to bring a witness over to the house to determine if it was decedent. Next, defendant explained that decedent got into a beige station wagon with two black males. Defendant stated that he never saw decedent again after getting into that car.

Carolyn Lewis testified on behalf of the State. She stated that she had been decedent’s girl friend since November 1987 and that on January 22, 1988, she and decedent went to decedent’s room in Pierce’s house, where she slept until she was awakened by decedent’s voice coming from the bathroom. She heard Ray Robinson telling decedent to steal everything Lewis had. She put on her clothing and noticed that her car keys were not in her coat pocket where she had left them and that $20 was missing from her pants’ pocket. As Robinson came out of the bathroom, she entered it and began arguing with decedent. Pierce came down to the basement and asked her what was happening. She explained and put on her coat to leave. Decedent followed her to the first floor. Defendant was there and asked her why she was upset. She explained.

Defendant ordered decedent to go back down to the basement and Lewis left and confirmed that her car had been moved. Upon arriving at her home, she noticed the VCR was missing. She called Pierce’s house and told defendant that her VCR was gone, then took a shower and returned to Pierce’s house. She told defendant that she wished to speak to decedent. Defendant went to the basement and got decedent. She confronted decedent regarding her missing money and VCR and moving her car. Decedent only responded that he needed the money. Then, defendant walked her to the door. She asked defendant to please keep decedent away from her because she never wanted to see him again. Defendant responded that she would not have to see him again.

The following Tuesday, Pierce telephoned her and told her that decedent was dead. Defendant also called her, wanting to know what she had told the police. She refused to speak to him. Defendant explained that he was upset because the bed sheets which Lewis described to the police matched the sheet that the police found on the decedent. She stated that she would call defendant the following day. The next morning, she picked up defendant in her car. They discussed her conversation with the police.

Roosevelt Dyes testified that he knew Pierce for about two to three years. He also knew defendant and Robinson, who is Dyes’ brother-in-law. On January 23, 1988, Dyes took Robinson to a currency exchange to cash his public aid check. Thereafter, they returned to Pierce’s house. Lewis, decedent, defendant, Pierce and a person named Robert were there. Robinson and Dyes went to the basement, where Robinson was cooking heroin or cocaine. After about 10 to 15 minutes, decedent came to the basement. Robinson and decedent argued about whether the narcotics would be shared. Decedent picked up a stool and hit Robinson with it. The two began to fight. Defendant came down to the basement and hit decedent with a pipe on the back of his leg. In court, Dyes identified a State exhibit as the pipe which defendant had used. Decedent claimed that defendant had broken his leg. Defendant returned to the first floor carrying the pipe.

Dyes further testified that Robinson and decedent, again, began to fight. Again, defendant came to the basement. Defendant separated Robinson and decedent. Then, defendant started beating decedent with the pipe, hitting him on the head twice. Dyes stated that the two hits produced loud blows. After being hit, decedent crawled to a hallway and claimed he was getting dizzy. Dyes remembered blood was coming from decedent’s head. Dyes testified that defendant said he would take decedent to the hospital. Defendant ordered everyone to leave the basement.

Next, Anthony Dandridge testified that he saw defendant on January 23, 1988, at approximately 10 p.m. Defendant requested that Dandridge come to Pierce’s house and help him in the basement. Dandridge went to the house with defendant and saw Sullivan and Eddy, a relative of defendant, at the home. Dandridge and Eddy went to the basement and picked up bloody towels and put them in a plastic garbage bag. Dandridge noticed bloodstains on the floor in front of the bathroom. They mopped up the blood and took the garbage bag along with some bloodstained floor wood to the back seat of the 1988 red Buick defendant had been driving. Defendant and Eddy took a rolled-up rug from the basement and put it into the trunk of the car. Then, Eddy and Dandridge rode in the car with defendant to the alley behind Jewel. They threw the garbage bag out of the car. Defendant gave Dandridge $2 to buy some dog food. Dandridge left defendant and Eddy in the car. After Dandridge returned with the dog food, defendant drove him home.

Detective Gene Harris testified that in late January 1988, he began to investigate the homicide of decedent. On January 29, 1988, he and his partner executed a search warrant on Pierce’s house. The following are items found on the premises which were processed by the crime lab: (1) a pail containing sponges and scrub brushes; (2) bed sheets; (3) a pillow case found in decedent’s bedroom; (4) a red blanket found on decedent’s bed; (5) samples of a red rug on the top of the stairs leading from the basement; and (6) a small piece of decedent’s mattress. The detectives noticed floor boards were missing in front of the bathroom.

Harris testified that he had a conversation with defendant on January 31, 1988. Harris’ statement was the same as before. On March 18, 1988, Harris spoke with defendant again. Defendant stated that he was talking to decedent about stealing Lewis’ money and got tired of decedent so he hit him on the legs twice with a pipe. Then, decedent lunged at defendant, so defendant hit him on the left side of the head with the pipe. Defendant returned to the first floor. Defendant, however, heard another argument, went to the basement and found decedent and Robinson fighting. Defendant pulled Robinson away from decedent. Defendant stated that he punched decedent in the back twice. Defendant and Robinson went to the first floor. A couple of hours later, decedent came upstairs and stated that he was going to retrieve Lewis’ VCR even though he had sold it. Decedent left the house and returned at about 5 to 5:30 p.m.

Further, Harris testified that defendant stated that he left the house at 10 p.m. When he returned with Pierce at midnight, Sullivan, Robinson and Jackie Gaston were present. When Harris questioned defendant regarding why he originally stated that decedent left in a beige car with two black males, defendant answered that he felt like lying. On March 19, 1988, Harris recovered a pipe from the basement of Pierce’s house. Defendant told essentially the same scenario to Assistant State’s Attorney Decline Thompson.

Additionally, Harris interviewed Dyes on March 18, 1988. Dyes said that Angelo Roberts and Pierce were on the first floor when Robinson and decedent were fighting. Roberts was called to the witness stand but invoked his fifth amendment right against self-incrimination and refused to answer any questions regarding decedent’s death.

Dr. Shaku Teas testified that she was a forensic pathologist for Cook County. On January 25, 1988, Teas performed an autopsy on decedent. Teas testified that decedent’s ankles and thighs had been tied with a strip of tom bed sheet. Decedent’s wrists were also tied. There were three different gags around decedent’s mouth and neck. Decedent had multiple blunt force injuries to his head, as well as to his face and neck region. Decedent suffered multiple lacerations, abrasions, bruising and contusions on the right side of his head. In particular, there were three lacerations to the back left side of decedent’s head. There were also abrasions on the left cheek and on the right side upper left eyelid. Decedent had faint bruises on his neck consistent with the gag being tied around it. Decedent’s larynx had suffered hemorrhage in a few areas. This indicated that the gags were tied around decedent’s neck while he still had a heart beat and was breathing.

Teas’ internal examination revealed an extensive hemorrhage inside the scalp, located in the back portion of the head. According to Teas, this type of hemorrhage is indicative of blunt trauma. There were contusions in the interior surface lower portion and the top area of the brain. There was another hemorrhage on the corpus callosum portion of the brain, indicative of a severe blow to the top area of the head.

Decedent suffered a stab wound to each lung, thereby collapsing them. There were bruises on decedent’s knees and behind them. There was extensive hemorrhaging behind the left knee. The backs of both hands were swollen and red, again, indicating that decedent was bound before he was dead.

Teas opined that, to a reasonable degree of medical certainty, the head injuries alone were sufficient to cause decedent’s death. Decedent could have lived for 30 to 45 minutes after receiving the blunt trauma to the head. Further, decedent would have been able to speak for a short period thereafter. Decedent, however, would have eventually lost consciousness.

Christine Anderson testified as an expert in serology. Anderson testified that decedent’s blood was found on his mattress, but obtained inconclusive results for the presence of blood on the sponges and scrub brushes. Anderson found no blood on the red rug.

Bob Berk, a criminalist with the Chicago police department’s crime lab, compared the bindings received from the medical examiner to the sheets recovered by the police. Berk determined to a reasonable degree of scientific certainty that the sheets and bindings matched. Further, Berk opined that the nylon fibers, found on the bindings, could have come from the carpeting at the top of Pierce’s basement stairs. Berk found to a reasonable degree of scientific certainty, however, that the red nylon fibers collected from the blue printed pillow case originated from the carpeting at the top of Pierce’s basement stairs. Additionally, Berk opined that the bindings contained fibers from the red blanket, and that trace material found in that blanket could have been from the carpeting at the top of the stairs. The hair retrieved from the sponges and brushes could have originated from decedent’s head. The red nylon fibers recovered from the trunk were similar to fibers found in the red carpet.

Next, Pierce testified on behalf of defendant. Pierce stated that she was told that decedent hit Robinson with a stool. When defendant and she heard this noise, defendant went to the basement and returned shortly thereafter. Pierce also testified that she saw defendant at around 10 p.m. on January 22, 1988, at a party. They arrived at her house at about 11 p.m. Pierce went to the basement and saw no blood or bloody rags. Harris testified that when he interviewed Pierce she never mentioned being at a party with defendant.

Jackie Gaston also testified on behalf of defendant. Gaston testified that he saw decedent at a drug house and attempted to assist decedent in selling a VCR. Gaston’s testimony was that he saw decedent at 6 to 7 p.m. at the drug house, but then contradicted himself and stated that he did not get to the drug house until 8 to 9 p.m. Gaston further testified that he arrived at Pierce’s house at 9 to 10 p.m. that night. After Gaston requested money, defendant stated that he would give him some if he cleaned the basement. Gaston claims that he cleaned the basement and did not see any blood or decedent. Gaston also admitted that he pled guilty in 1982 to theft and unlawful use of a weapon, receiving two years in prison. At the time of trial, Gaston was serving a six-year sentence for theft and possession of a stolen motor vehicle.

After deliberating, the jury found defendant guilty of first-degree murder, but could not reach a unanimous decision for the imposition of the death penalty. Defendant was sentenced to natural life without parole.

Initially, defendant appeals his conviction on the ground that the State’s use of its peremptory challenges to exclude blacks from the jury violated Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Defendant specifically argues that he was denied a fair trial because the circuit court abused its discretion by conducting a “collapsed” Batson hearing, wherein it improperly articulated race-neutral reasons for the exclusions on behalf of the State. Defendant contends that this cause should be remanded for a “proper” Batson hearing.

In order to establish a prima facie case under Batson, a defendant must show that the State exercised peremptory challenges to remove veniremembers of a cognizable racial group and that the facts and any other relevant circumstances raise an inference that the State challenged the veniremembers because of their race. (People v. Edwards (1991), 144 Ill. 2d 108, 153, 579 N.E.2d 336, 353-54; Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364.) The record indicates that the circuit court properly weighed the totality of the relevant circumstances. The circuit court found that defendant failed to show a pattern of strikes against a cognizable racial group, because those jurors who were struck exhibited characteristics, other than race, that are commonly viewed to be unfavorable to the State.

After the second panel of jurors had been selected, defendant moved pursuant to Batson that the State give race-neutral reasons for excluding blacks. In support of his Batson motion, defendant argued that the State had at that point used five of seven peremptory challenges to exclude blacks from the jury and that these veniremembers were similarly situated. The court stated for the record that two blacks were selected for the first panel and two blacks were selected for the second panel; thus, 50% of the selected jurors at the time of defendant’s Batson motion were black. Thereafter, the court stated that there was “no invidious discrimination.” The court explained its findings by stating:

“In my judgment, the challenges are being made with racial neutrality. On things like youth, somewhat idiosyncratic people. For instance, the boutique people. Was kind of different dressing, different appearing. Clipped kind of answers that I haven’t heard in a while from an area that borders on, if not encompasses the University of Chicago which prosecutors have always been leery of for twenty-five years or more. And in my judgment, there has been no racial discrimination.
Another thing. I think on more than one of these challenges, opposition to the death penalty, but when I asked the jurors to conceive of some case where they could consider it, Speck and Manson pops, [sic] Up and it would obviously be fair to assume that if the State does not think that this case comes close to Speck or Manson, that juror is not going to end up if there is a guilty verdict, imposing the death penalty.
So, I’m not even going to demand that the State make a record.”

Defendant, however, persisted, arguing that only two of the excluded jurors expressed problems with the death penalty. Defendant continued to argue that there was no difference between the excluded veniremembers and the selected jurors, except race. The court responded by stating:

“There’s the one young black lady who had a one month employment at Montgomery Wards I think. So, you’re right. She was employed, but there certainly is a difference between for instance being employed for twenty-five years and then employed for one month at a particular place. And there was a young white girl who was about 21 years old or twenty years old who was likewise challenged by the State because of — I would assume and I would challenge them because of there again, absence of wisdom of age.”

Defendant cited People v. Garrett (1990), 139 Ill. 2d 189, 564 N.E.2d 784, to illustrate that the Illinois Supreme Court criticized a circuit court for “collapsing” the Batson hearing. Although on its face this statement is true, it is misleading. In Garrett defendant made a Batson motion stating that six of the seven peremptory challenges were black veniremembers. (Garrett, 139 Ill. 2d at 198, 564 N.E.2d at 785.) The supreme court commented that this might be enough to satisfy all the elements of a Batson prima facie case “except perhaps the critical, last element: whether these facts ‘and any other relevant circumstances’ raise an inference of purposeful discrimination.” (Garrett, 139 Ill. 2d at 203, 564 N.E.2d at 791.) Even though the circuit court asked the State whether it wished to say anything about its challenges, and the State responded by explaining three of the challenges on seemingly race-neutral grounds, the supreme court held that defendant’s submission of his Batson motion was “simply insufficient for the trial judge reasonably to find that a prima facie Batson case had been established.” (Garrett, 139 Ill. 2d at 204, 564 N.E.2d at 791.) Defendant’s attempt to use Garrett to imply that the supreme court mandates remanding cases similar to the instant one is unsuccessful because not only is such implication untrue, but the case at bar differs from Garrett.

In the case at bar the circuit court did not conduct a “collapsed” Batson hearing. A collapsed Batson hearing occurs when the circuit court requests that the State provide race-neutral reasons for its challenges prior to finding that a prima facie Batson case has been established. (See People v. Hope (1990), 137 Ill. 2d 430, 560 N.E.2d 849.) Here, the circuit court merely explained why defendant had failed to establish a prima facie case. The State did not provide race-neutral reasons for its challenges.

Defendant also relies on People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357. In Harris, the circuit court found that the defendant had established a prima facie case of discrimination. Defendant quotes Harris for the proposition that “a court should not presume, or infer from the facts of the case, that an unarticulated neutral explanation exists. [Citation.] Rather, a court must focus its inquiry on the reasons actually articulated by the State.” (Harris, 129 Ill. 2d at 184, 544 N.E.2d at 384.) There is a significant difference between Harris and the instant case. In Harris the circuit court found that the defendant had established a prima facie case of discrimination. In the case at bar, the circuit court found that defendant had failed to establish such a case. Defendant argues that the circuit court stated race-neutral reasons for the challenges on behalf of the State. The record, however, clearly indicates that the circuit court found that there was “no invidious discrimination” and went on to explain its findings.

Defendant cites another case in support of his argument that the circuit court abused its discretion by conducting a “collapsed” Batson hearing. Defendant correctly states that this court indicated that the determination of discriminatory use of peremptory challenges is based upon the “motives” of the prosecutor. (People v. Harris (1989), 182 Ill. App. 3d 114, 118, 537 N.E.2d 977, 979.) While the above statement is true, the circuit court must first determine if the defendant has established a prima facie case of discrimination. In the case at bar, the court found that defendant had failed to establish a prima facie case.

A trial court’s determination that a defendant failed to establish a prima facie case of purposeful discrimination is a finding of fact and should not be overturned on review unless it is against the manifest weight of the evidence. (People v. Brisbon (1989), 129 Ill. 2d 200, 231, 544 N.E.2d 297, 311.) At the time the Batson motion was made, four black jurors had been selected, the State asked no questions and made no comments during voir dire to the veniremembers. The mere fact that some black veniremembers are challenged and others accepted by the State, without more, cannot be said to constitute even a pattern of such challenges. (Garrett, 139 Ill. 2d at 204, 564 N.E.2d at 791.) After a careful review of the record and relevant case law, we find that the circuit court’s decision that defendant failed to establish a prima facie Batson case is not against the manifest weight of the evidence.

Second, defendant argues that the circuit court improperly denied his two pro se post-trial motions without first appointing new counsel to prepare and present his allegations of ineffectiveness of counsel. Relying on People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, defendant contends that the circuit court erred by failing to consider his claim of ineffective assistance of counsel and by failing to appoint new counsel to investigate and present that claim. There is, however, no mandate that requires that new counsel be appointed whenever a post-trial motion includes an allegation of ineffectiveness of counsel. (See People v. Morgan (1991), 142 Ill. 2d 410, 568 N.E.2d 755.) After reviewing the factual matters underlying a defendant’s claim, a circuit court determines whether the defendant's allegations regarding his counsel are meritless or simply pertain to trial strategy. If either of the two is true, then no new counsel needs to be appointed. People v. Brandon (1987), 157 Ill. App. 3d 835, 510 N.E.2d 1005.

After reviewing defendant’s motion, we affirm the circuit court’s finding. The circuit court found that the motion submitted by defendant is “really a retrial or reargument or relitigation of the motion to suppress and the trial.” Further, the circuit court refused “to engage in a relitigation, retrial, rehearing on the motion.” Defendant argued that his trial counsel failed to (1) investigate and call witnesses favorable to his defense, namely, Billy Scott, Willie and Henry Brown and Ray Robinson; (2) present evidence of Anthony Dandridge’s bias against defendant; (3) impeach Roosevelt Dyes; and (4) impeach Assistant State’s Attorney Thompson regarding a statement that defendant refused to be interviewed. As to the allegation that defense counsel failed to call witnesses favorable to defendant, the record is devoid of any reference to Scott or the Brown brothers. The record also indicates that Robinson was repeatedly subpoenaed to testify and that a contempt order and rule to show cause was entered against him. Defendant next claims that Dandridge was biased against him because Dandridge damaged defendant’s car and owed defendant money. Defendant’s motion did not indicate that he had informed his trial counsel of this possible bias. Defendant further argued that Dyes had motive to lie to protect his brother-in-law, Robinson. This argument of bias is refuted by Dye’s unfavorable testimony about Robinson.

After reviewing defendant’s allegations against his trial counsel, we find that he failed to show that his trial counsel’s performance was seriously deficient so as to fall below the objective standard of reasonableness. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) There was, thus, no need to appoint defendant new trial counsel to investigate his post-trial motions. Accordingly, we hold that the circuit court properly denied defendant’s post-trial motion.

Third, defendant argues that the State’s opening remarks concerning the stages of a death-penalty trial and closing argument regarding decedent’s injuries constitute prosecutorial misconduct. During the opening statement, the State commented:

“Now, what we are beginning today, the trial is the first part of a three part process that has been designed to arrive at justice in the matter. The first part is the trial. The second and third part[s] are the parts that deal with sentencing.
It is all part of one process in effect but at this time I would ask you please to just concern yourself with what you are to deal with now which is just the guilt or innocence of this defendant, Eugene Rhoiney, and I’d ask you at this time to base that determination on the evidence that you will be hearing.”

Defendant argues that the above statements suggest that a “trial was a mere formality to the death penalty procedure.” Defense counsel, however, also remarked in his opening statement:

“You heard the judge yesterday ask you questions about your opinion about the death penalty. That was asked for one reason, to get your feelings about it. Just like about your background, etcetera. You heard the State’s Attorney tell you that this is the first of the three phases and that should you find Eugene Rhoiney guilty of murder it will continue to a second and third phase having to do with the death penalty.”

Immediately after opening statements, the circuit court stated:

“Again, to reiterate, what the lawyers just mentioned to you, jurors, this is the trial and this is the trial as to guilt or innocence and at this trial, this first phase or stage of the proceedings, only guilt or innocence is involved.”

Relying on People v. Barrow (1989), 133 Ill. 2d 226, 549 N.E.2d 240, defendant claims that the State’s opening statement amounted to prejudicial error. Barrow is distinguishable from the case at bar. In Barrow the Illinois Supreme Court found the circuit court’s remarks to be improper because the judge stated that the jury would be asked to deliberate on the death penalty, without making it clear to the jurors that they first must find the defendant guilty of first-degree murder. (Barrow, 133 Ill. 2d at 260, 549 N.E.2d at 254-55.) In the instant case, each attorney and the circuit court informed the jury that the particular part of the trial in which they were presently involved was to determine the guilt or innocence of defendant. Additionally, we note that the Illinois Supreme Court in Barrow found that the circuit court’s comments were not so prejudicial as to deny defendant a fair trial. (Barrow, 133 Ill. 2d at 260, 549 N.E.2d at 255.) We agree with the circuit court’s finding that the State’s opening statement did not constitute error.

Defendant also argues that the State’s closing argument concerning how decedent sustained his injuries was reversible error. In order to amount to reversible error, there must be a showing of substantial prejudice to defendant’s rights. (People v. Buchanan (1991), 211 Ill. App. 3d 305, 570 N.E.2d 344.) The State’s remarks were based on reasonable inferences drawn from the facts adduced at trial and were made for the purpose of establishing defendant’s intent to commit first-degree murder; thus, we hold that the remarks were proper. See People v. Franklin (1990), 135 Ill. 2d 78, 552 N.E.2d 743.

Since defendant had a prior murder conviction, he was sentenced to a term of natural life imprisonment without parole. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—l(aX2).) The statute provides that if a defendant has previously been convicted of murder under any State or Federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment. Defendant argues that this statute violates the eighth and fourteenth amendments of the United States Constitution because it mandates a natural life sentence, thereby precluding consideration of factors in mitigation. The Illinois Supreme Court has held that the mandatory natural life provision was valid under both the Federal and State constitutions. (People ex rel. Daley v. Strayhorn (1988), 119 Ill. 2d 331, 518 N.E.2d 1047.) Defendant’s argument, therefore, is merit-less.

For the foregoing reasons, the conviction and sentence of the circuit court of Cook County are affirmed.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL PRESIDING JUSTICE MANNING,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WESLEY KING, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—3082
    Opinion filed August 2, 1993.
    Rehearing denied October 13, 1993.

      Randolph N. Stone, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Gregory Vaci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Wesley King was found guilty of the murder of decedent Stevon Draine. Defendant was tried jointly with codefendant Allen Williams, who was acquitted of all charges. Defendant was sentenced to 20 years in the Department of Corrections and now appeals.

The record on appeal indicates the following facts. Before trial, defendant filed a motion to sever, alleging that codefendant had given the police a statement implicating defendant and that their defenses were antagonistic. After hearing argument, the trial court denied the motion. The trial court also denied defendant’s motion in limine to prevent the State from referring to gang activity or membership.

At trial, Donald Jackson, a/k/a “Rico,” testified for the State. Rico testified that on May 31, 1987, he and decedent were members of the Disciples street gang. Rico testified that there was “bad blood” between the Disciples and a gang known as the Vice Lords. Rico had been in altercations with the Vice Lords. Rico stated that he had known codefendant for seven years and defendant for two years. According to Rico, codefendant had been a member of the Vice Lords, but was not a member on May 31, 1987. Rico further stated that in the two years he had known defendant, he had only seen defendant in the company of Vice Lords. Rico testified that defendant was a member of the Vice Lords, but defendant’s objection to this testimony was sustained for lack of foundation.

Rico testified that at approximately midnight on May 31, 1987, he, decedent, Monique Chambers and Anita Trammel were walking toward Rico’s apartment at 72nd Street and Phillip Avenue. Codefendant was standing in front of a building the four passed along the way. Codefendant asked Rico whether Rico had $25 which Rico had borrowed from codefendant. Rico said that he did not; codefendant told Rico to get the money to him when Rico got it. According to Rico, decedent then said to Rico, “Fuck them pussy ass Hooks.” Rico testified that “Hooks” was a term used to refer to Vice Lords.

After these remarks, Rico, decedent, Chambers and Trammel continued to walk south towards Rico’s apartment. Codefendant asked what decedent said and asked decedent to come back. Decedent said, “Pussy motherfucker, you heard what I said, I ain’t biting my tongue.” At this point, decedent and codefendant were approximately a foot and a half apart from each other. Rico testified that codefendant pushed decedent in the face; decedent then hit codefendant three or four times in the face.

The two women continued walking south towards Phillips Avenue. According to Rico, approximately 16 men came out of codefendant’s building to watch the fight. Rico testified that these men were “affiliated,” but the trial court sustained a defense objection to testimony that they were affiliated with defendant. One of these men was named Robert Butler. During the fight, Rico saw defendant holding an aluminum baseball bat propped on his shoulder in a batting position. Rico warned defendant that if he hit anyone with the bat, he would not hit anyone else. Rico and Butler stopped the fight.

Rico told decedent that there were too many people and that he and decedent could come back tomorrow. Rico stated that decedent began to realize what Rico was saying. Rico and decedent began to walk away and caught up with Chambers and Trammel. Rico and Trammell were a bit in front of decedent and Chambers. Rico testified that he heard a gunshot; decedent fell to the ground.

Rico further testified that as he heard another shot, he looked back to see defendant holding a gun in his outstretched arm. Rico stated that he also saw codefendant coming from around the corner of the building where codefendant lived. Rico told the two women to find the police; the women ran from the scene.

Rico then testified that he ran back toward 72nd Street, where he saw his cousin driving down the street. Rico stopped his cousin and told him that decedent had been shot. Rico, his cousin and Peter Butler then loaded decedent into the automobile. Rico and his cousin drove to decedent’s home to inform decedent’s family of the shooting. Family members went with Rico and his cousin to take decedent to the hospital.

Rico admitted that he had a prior conviction for burglary and that the State had agreed to reduce a pending charge of residential burglary to theft in return for a guilty plea, so that Rico would receive a sentence of probation, rather than incarceration. Rico testified that he was afraid to go to prison because he believed he would be killed by Vice Lords there, but the testimony was stricken after defense objections to it were sustained. Rico stated that he told defense counsel before trial that he did not see the shooting because anything he said could and would be used against him, not just in a court of law, but on the street. Rico explained that he meant that he could face retaliation for his testimony, but defense counsel’s objection to this last statement was sustained and it was stricken.

Rico testified that he and decedent got along with codefendant, though they were in a rival gang. Rico testified that after the fight, he saw codefendant go around the corner onto 72nd Street and could not see defendant or codefendant enter any apartment.

Rico denied having told a police officer that he was not with decedent on the night of the shooting. Rico admitted that in an interview with defense counsel and another man, he told defense counsel that someone other than defendant was the shooter. Rico was asked whether he had told defense counsel that if called as a witness, he might lie or he might tell the truth. Rico responded as follows:

“No. I told him that if I was called, I would tell him the truth. I told him — I told him that. I told — I told, you know, you know I told him a story, you know. That is what I told him. I told you, if they do call me, I will tell the truth, I am not going to-.”

At this point, Rico’s testimony was cut off by other questions.

Monique Chambers testified that on the night at issue, she and Trammel were walking with decedent and Rico to Rico’s apartment. She testified that they passed codefendant’s apartment building where codefendant was standing on the porch. According to Chambers, codefendant yelled “Rico, where’s my 2-5.” Codefendant and Rico had a short talk, after which the four continued walking down Phillips Avenue.

Chambers testified that defendant, codefendant and others came around to the side of the building. Codefendant yelled “Bring your punk ass back here.” Decedent walked back toward codefendant; Rico, Chambers and Trammel followed. Decedent and codefendant exchanged words and began fighting. Defendant stood nearby with a baseball bat. According to Chambers, one of the others had given the bat to defendant, telling him to “bust that punk motherfuck with it.” Chambers saw defendant with the bat in a downward position.

Chambers testified that after the fight, she saw defendant and co-defendant walk back around to the front of codefendant’s building. Chambers did not see either man enter the building. She, Trammel, Rico and decedent started walking away. Chambers heard a single gunshot. Decedent fell to the ground, shot in the back of the head. Chambers testified that she and Trammel ran to the comer of 73rd Street and Exchange Street, where they stopped a police car. Chambers told the police that decedent was shot and that “Wesley did it.”

The police took Chambers and Trammel back to the scene of the shooting, where they saw Rico and decedent in a car. Chambers also saw defendant and identified him to the police. Defendant was then apprehended.

At the police station, Chambers told police that she heard a gunshot, turned around and saw defendant with a gun in his hand. According to Chambers, she told Detective Carey that she heard a shot and saw fire coming out of the gun as decedent fell to the ground. Chambers denied telling the police that she saw defendant and codefendant come out of the budding after the fight and that defendant had a gun in his hand at that time. On cross-examination, Chambers testified that she did not see who fired the shot and did not see defendant with a gun.

Chicago police detective George Carey testified that on the night in question, he was assigned to decedent’s shooting. At about 2:30 a.m., Detective Carey spoke with Chambers at Area One headquarters. According to Detective Carey, Chambers told him that after the fight between decedent and codefendant, she saw defendant and codefendant walk into the building at the corner of 72nd Street and Phillips Avenue. Detective Carey testified that Chambers told him that as she and decedent began walking arm in arm toward 73rd Street, she saw defendant and codefendant come back out of the building and that defendant had a gun in his hand. Chambers told Detective Carey that she heard a shot, saw flame come out of the barrel of the gun and saw decedent fall to the ground. She also told Detective Carey that she flagged down a police car and pointed out defendant and another individual to the police, both of whom were arrested at that time.

Detective Carey also testified that at 5 a.m., he searched codefendant’s apartment, where the police recovered a baseball bat. According to Detective Carey, codefendant identified the bat as the one defendant held during the fight. The trial court instructed the jury that codefendant’s statement could not be used against defendant.

Doctor Nancy Jones, a deputy medical examiner, testified that an examination of decedent indicated that his death was caused by the gunshot to the back of the head.

Chicago police officer Milan Hrebenak testified that on the night in question, he and his partner were driving north on Exchange Avenue when they heard screaming. They turned and approached a crowd of people. According to Officer Hrebenak, two young black girls told him that decedent had been shot by defendant. The police proceeded to 72nd and Phillips, where Officer Hrebenak saw a car with a person lying down in the back seat. Officer Hrebenak testified that Chambers pointed to two men on the scene and identified defendant by name. Defendant was arrested. The State rested its case in chief.

Donald Hindman testified that he worked for the Cook County public defender’s office on July 19, 1988, when he spoke with Rico. Hindman testified that Rico identified a man other than defendant as the shooter on the night in question.

Another employee of the Cook County public defender’s office, Albert Krawczyk, testified that he spoke with Rico on August 16, 1988. Krawczyk was asked what Rico said he intended to do if called as a witness in this case. The State’s objection to such testimony as being hearsay and nonimpeaching was sustained.

Robert Butler testified that he saw the fight on the night in question. Butler testified that after the fight, he and defendant were walking away from the area when he heard a shot fired. According to Butler, defendant did not have a gun in his hand at the time. Butler further testified that he and defendant then ran around the comer to see decedent on the ground. Butler helped put decedent into a car to be taken to the hospital.

Codefendant testified that he got into a shoving match with decedent on the night in question. Codefendant testified that he was on the porch of his building when decedent was shot. After hearing the gunshot, codefendant ran around the corner to see decedent on the ground. On cross-examination, codefendant denied telling the police that he had searched defendant after seeing defendant rounding the corner of the building, but did not find a gun.

Following closing arguments and jury deliberations, defendant was found guilty of murder and sentenced to 20 years in prison. Defendant now appeals.

I

Initially, defendant argues that he was denied a fair trial because the trial court denied his severance motion. Generally, defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Byron (1987), 116 Ill. 2d 81, 92, 506 N.E.2d 1247, 1251.) There are two common forms of prejudice in this regard. First, a nontestifying codefendant may have made out-of-court admissions that implicate the defendant. Introduction of such statements into evidence, even if the jury is given limiting instructions not to consider them against the defendant, can violate the latter’s sixth amendment right of confrontation. (People v. Daugherty (1984), 102 Ill. 2d 533, 541-42, 468 N.E.2d 969, 973, citing Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) Second, the defendants may-present defenses that are so antagonistic that it is unfair to try them together. (E.g., People v. Bean (1985), 109 Ill. 2d 80, 93, 485 N.E.2d 349, 355.) The decision to deny a motion for severance is reviewed under an abuse of discretion standard, based on the information the trial court had at the time the motion was made. People v. Lee (1981), 87 Ill. 2d 182, 186, 429 N.E.2d 461, 463.

As to the first type of prejudice, the confrontation clause is not violated by the admission of a codefendant’s statement where the codefendant testifies at trial and is subject to full and effective cross-examination. (Nelson v. O’Neil (1971), 402 U.S. 622, 29 L. Ed. 2d 222, 91 S. Ct. 1723; see People v. Jones (1988), 169 Ill. App. 3d 883, 897-98, 524 N.E.2d 593, 602.) Where a codefendant takes the stand in his own defense and denies making an alleged out-of-court statement implicating the defendant, the defendant has been denied no rights protected by the sixth and fourteenth amendments. See People v. Coleman (1991), 223 Ill. App. 3d 975, 991 n.1, 586 N.E.2d 270, 281 n.1, appeal granted (1992), 145 Ill. 2d 637, 596 N.E.2d 632.

In this case, the trial court determined that defendant had failed to show the requisite degree of antagonism between the defenses. This determination is borne out by the record on appeal. Codefendant testified in his own defense and was subject to full and effective cross-examination. Codefendant did not assert that defendant was the shooter and denied telling the police that he had searched defendant for a gun after the shooting. Defendant also had argued that the defenses were antagonistic because codefendant intended to introduce the results of his gunshot residue test (which were negative), but defendant was not going to introduce the results of his gunshot residue test (which were inconclusive). However, the introduction of codefendant’s test results neither implicated defendant nor rendered the defenses so antagonistic that severance was required in this case. Accordingly, defendant has failed to show that the trial court abused its discretion in denying the severance motion.

II

Defendant next argues that he was denied a fair trial because the State introduced irrelevant testimony that he and others were involved in street gangs to prove a motive for the commission of the crime. Evidence of gang affiliation is admissible if it is relevant to an issue in dispute and its probative value is not substantially outweighed by its prejudicial impact. (See People v. Gonzalez (1991), 142 Ill. 2d 481, 487, 568 N.E.2d 864, 866-67.) Generally, evidence that a defendant was a member of a gang or was involved in gang-related activity may be introduced to show common purpose or design, or to provide a motive for an otherwise inexplicable act. (People v. Smith (1990), 141 Ill. 2d 40, 58, 565 N.E.2d 900, 907.) Such evidence may also be relevant as part of the narrative describing the events which led to the defendant’s identification or arrest. (Gonzalez, 142 Ill. 2d at 488, 568 N.E.2d at 867.) Nevertheless, the State cannot impute a gang-related motive to a defendant simply because he had been seen with a known gang member. (See Smith, 141 Ill. 2d at 58-59, 565 N.E.2d at 907-08.) Evidence of gang membership or activity must be related to the crime charged to be admissible. See Smith, 141 Ill. 2d at 58, 565 N.E.2d at 907.

In this case, the record shows that decedent was shot while leaving the scene of an altercation between decedent and codefendant. The record shows that this altercation appears to have been occasioned by a remark decedent made that showed hostility toward “Hooks.” The record shows that decedent made the remark at the end of a conversation between Rico and codefendant regarding a debt. In order to understand the chain of events leading up to the shooting, evidence that Rico and decedent were members of the Disciples, codefendant was a former member of the Vice Lords and that there was “bad blood” between the two gangs was relevant and admissible.

Defendant, however, focuses upon the State’s theory of the case, which was that defendant was a Vice Lord who shot decedent at the behest of codefendant, who was a former Vice Lord. Defendant notes that Rico’s testimony as to defendant’s gang affiliation and the affiliation of the 15 or 16 men who came out of codefendant’s building was stricken for lack of foundation. Relying upon Smith, defendant argues that the State could not argue that he was a Vice Lord based solely on Rico’s testimony that Rico had seen defendant in the company of Vice Lords. Defendant thus concludes that the State’s opening and closing arguments, which identified defendant and others as Vice Lords, combined with the eliciting of testimony (ultimately stricken) to this effect, denied defendant a fair trial.

Initially, we must note that on the occasions when defense counsel objected to such argument or testimony, the trial court often sustained the objection and instructed the jury to disregard it, thus curing any error. On other occasions, defendant failed to contemporaneously object to argument regarding gang affiliation, thus waiving some of the objections raised here. Nevertheless, the trial court overruled some of defendant’s objections to argument regarding gang affiliation. Consequently, we address the issue as a whole.

The State is permitted to outline in an opening statement what it expects the evidence will show, but cannot argue that which the State does not expect to prove. Even so, reversal is not required simply because an opening statement refers to evidence which later proves to be inadmissible. Reversible error occurs only in cases of deliberate misconduct by the State that causes substantial prejudice to the defendant’s rights. Smith, 141 Ill. 2d at 63-64, 565 N.E.2d at 910.

In this case, the record contains a transcript of a hearing on defendant’s motion in limine to exclude evidence of gang affiliation. The record indicates that the State intended to prove the matters to which defendant objects through Rico’s testimony. The record further indicates that the trial court later struck portions of Rico’s testimony regarding gang affiliation as lacking a foundation. Defendant has failed to show from this record deliberate misconduct on the part of the State.

As for closing argument, the State is permitted great latitude to argue to the jury facts and legitimate inferences that may be drawn from the evidence. Conversely, the State is not permitted to argue assumptions or facts not based upon the evidence. However, improper argument will not merit reversal unless it results in substantial prejudice to the defendant. Smith, 141 Ill. 2d at 60, 565 N.E.2d at 908.

In this case, the State argued that defendant and the men who came out of codefendant’s apartment during the fight were Vice Lords. The record shows that Rico’s testimony that defendant was a Vice Lord and that the men from codefendant’s apartment were affiliated with defendant was stricken. It was therefore improper for the State to make these arguments.

The question of whether the arguments were reversible error is another matter. Defendant relies upon Smith, in which our supreme court held that the State could not prove a gang-related motive from testimony that defendant had been seen on two occasions in the presence of an alleged gang leader. (Smith, 141 Ill. 2d at 59, 565 N.E.2d at 907-08.) We note that nothing in the Smith opinion suggests that the persons who saw the defendant in the presence of the alleged gang leader had any personal knowledge of whether the defendant was a gang member. This court has previously held that nonexpert testimony of gang membership or affiliation is admissible where the background testimony lays the necessary foundation. (People v. Wadley (1988), 169 Ill. App. 3d 1036, 1044, 523 N.E.2d 1249, 1255.) In Wadley, the nonexpert police officer was a member of the gang crimes unit, which gave him background of gang culture, and became familiar with defendant during an investigation of another offense. Wadley, 169 Ill. App. 3d at 1040-41, 523 N.E.2d at 1255.

In this case, Rico was closer to the witness in Wadley than the witnesses in Smith. Rico testified that he was a member of the Disciples, which gives him a background in gang culture. Indeed, there was no objection to Rico’s testimony that he and decedent were both Disciples and that there was bad blood between the Disciples and the Vice Lords. Nor was there any objection to Rico’s testimony that he had been in altercations with the Vice Lords. Rico’s experience as a Disciple, including altercations with the Vice Lords, indicates that Rico had personal knowledge of whether defendant and others were members of the Vice Lords. Moreover, unlike Smith, Rico testified that he had known defendant for two years and only saw defendant in the company of the Vice Lords. The State’s problem in this case was that this testimony was not put together as a coherent foundation for testimony as to gang affiliation. However, the record viewed as a whole indicates that defendant was not substantially prejudiced by argument and testimony that defendant and the men who came out of codefendant’s building during the fight were Vice Lords or affiliated with the Vice Lords.

Ill

Defendant contends that he was denied a fair trial because the State made other improper comments in closing argument, in addition to those regarding gang affiliation. For example, defendant claims it was improper for the State to argue that Rico and Chambers feared retaliation against their testimony when there was no evidence of it in the record. However, the record indicates that the trial court sustained defendant’s objections to the argument regarding Rico and instructed the jury to disregard the remark, thereby curing any possible error. (See People v. Morando (1988), 169 Ill. App. 3d 716, 739, 523 N.E.2d 1061, 1077.) The record also indicates that the objection to argument as to Chambers’ fear was overruled as responsive to defense counsel’s remarks in closing argument. The State is permitted to make comments in rebuttal argument that are invited by defense arguments. Morando, 169 Ill. App. 3d at 733, 523 N.E.2d at 1074.

Defendant contends that the State improperly used the evidence that a baseball bat was found in codefendant’s apartment in the closing argument against defendant. Defendant also contends that the State improperly inferred that Williams’ motive to kill decedent was “humiliation” from the fight with decedent. Defendant further contends he was prejudiced by the State’s rebuttal argument that defendant “dumped the gun in a dumpster.” During closing arguments, the State is allowed to make reasonable inferences from the evidence presented at trial. The record here contains testimony that defendant was the shooter. The record also shows that the gun was not found on defendant or in any place he had been seen by the witnesses. It is not unreasonable to infer from the record, therefore, that the gun that was seen in defendant’s hand was somewhere else. The record indicates that the State argued that defendant had thrown the gun in a dumpster, hidden it in codefendant’s building or otherwise secreted it; the State did not argue as fact that the gun was thrown in a dumpster.

Defendant objects to the State’s rebuttal argument that Robert Butler had a motive to testify falsely, as evidenced by the fact that he was sitting near defendant’s mother in the courtroom during closing argument. Clearly, Butler’s position in the courtroom during closing argument was not evidence presented at trial. The argument was improper. Nevertheless, the comment was not such that it could have reasonably affected the verdict in the case, thus rendering the error harmless. Furthermore, based on our conclusion regarding the arguments of gang affiliation, we conclude that the cumulative impact of the errors made in closing argument does not warrant reversal in this case.

IV

Defendant next argues that the State failed to lay a proper foundation for the impeachment of Chambers on the issue of whether she saw defendant and codefendant enter codefendant’s building after the altercation. Before a prior inconsistent statement of a witness is allowed into evidence, counsel must lay a foundation by directing the attention of the witness to the time, place, circumstances and subject of the inconsistent statement. People v. Cobb (1983), 97 Ill. 2d 465, 479, 455 N.E.2d 31, 37.

In this case, Chambers was asked about the statement she gave to the police after the shooting. The record shows that she was not asked specifically whether she told the police she saw defendant and codefendant enter the building. The State thus failed to meet the conventional standards normally required to provide a foundation for impeachment by prior inconsistent statement. Nevertheless, in People v. Henry (1970), 47 Ill. 2d 312, 265 N.E.2d 876, our supreme court held that an unconventional foundation was adequate to permit impeachment where there was no unfair surprise and the witness has the opportunity to explain the statement. (See Henry, 47 Ill. 2d at 321-22, 265 N.E.2d at 882.) The record on appeal in this case indicates that the State, after drawing Chambers’ attention to the statement she gave to the police following defendant’s arrest, asked the following question:

“Did you tell the police that after the fight you saw Wesley and Alan come back out of the building and that Wesley had a gun in his hand?” (Emphasis added.)

Chambers denied making the statement. Viewed in the context of the examination as a whole, the question may be read to imply that Chambers saw defendant and codefendant enter the building. The question does not merely ask whether she saw defendant and codefendant come out of the building after the fight; it asks whether she saw them come back out of the building after the fight. In addition, defendant has made no showing that he was surprised by the testimony at issue. Given the facts and circumstances of this case, we conclude that the trial court did not abuse its discretion in permitting the impeaching testimony.

V

Defendant next contends that the trial court erred by refusing to allow impeachment of Rico through the testimony of Albert Krawczyk. However, defendant failed to raise this argument in his post-trial motion, thereby waiving it on appeal.

VI

Finally, defendant argues that the trial court denied him a fair trial by inquiring into the numerical division of the jury during deliberations and coercing the jury into rendering a guilty verdict against him.

Generally, a trial court should not inquire into the numerical division of the jury. (E.g., People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984.) In Santiago, however, the record indicated that the trial court inquired not only into the numerical division of the jury, but also into which verdict the majority favored. (See Santiago, 108 Ill. App. 3d at 806-07, 439 N.E.2d at 997.) Where the trial court does not ask the jury foreperson to reveal which verdicts the majority favored, any error arising from the inquiry is harmless. People v. Craddock (1987), 163 Ill. App. 3d 1039, 1045-46, 516 N.E.2d 1357, 1362.

In this case, the portion of the record quoted by defendant indicates that the trial court indicated that it did not want to know which verdicts the majority favored. Accordingly, any error arising from the inquiry is harmless in this case.

It is improper for a trial court to coerce a verdict from a jury. (See, e.g., People v. Ferro (1990), 195 Ill. App. 3d 282, 551 N.E.2d 1378; People v. Friedman (1986), 144 Ill. App. 3d 895, 494 N.E.2d 760; People v. Robertson (1981), 92 Ill. App. 3d 806, 416 N.E.2d 323.) However, informing a jury that it will be sequestered after a certain time is not necessarily coercive. (Ferro, 195 Ill. App. 3d at 292, 551 N.E.2d at 1385.) Likewise, while the length of deliberations after such comments is relevant to the issue of coercion and may give rise to an inference of coercion in some cases, the timing of the verdict is inconclusive by itself. Ferro, 195 Ill. App. 3d at 292, 551 N.E.2d at 1385.

In this case, the record suggests that the jury reached a verdict approximately 30 to 35 minutes after being informed that plans for sequestration would have to be made for the evening. However, this is the sole factor that defendant has brought to the attention of this court. Moreover, the record indicates that the jury did not reach a verdict regarding codefendant at the time it reached a verdict regarding defendant. Given this record, defendant has failed to show that the trial court’s comments coerced the verdict against him.

For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

O’CONNOR, J., concurs.

PRESIDING JUSTICE MANNING,

dissenting:

I disagree with the result reached by the majority and consequently I dissent. It is generally held that evidence indicating the defendant was a member of a gang or was involved in gang-related activity is admissible to show common purpose or design, or to provide a motive for an otherwise inexplicable act. (People v. Miller (1981), 101 Ill. App. 3d 1029, 428 N.E.2d 1038.) Such evidence, however, is only admissible where there is sufficient proof that such membership or activity is related to the crime charged. People v. Wadley (1988), 169 Ill. App. 3d 1036, 523 N.E.2d 1249.

In this case, the only evidence the State proffered of defendant Wesley King’s gang activity was testimony by Rico that he had seen King in the company of Vice Lords, a rival gang. He testified that before he spoke to codefendant Williams about the $25 he owed to Williams, decedent told him not to talk to those “Hooks.” Rico testified that “Hooks” is a term for Vice Lords. He further testified that the Vice Lords and Disciples have “bad blood” between the two gangs. Rico also stated that he and decedent were members of the Disciples street gang, and that although codefendant Williams was not a member of the Vice Lords at the time of the incident, codefendant Williams had been a member of that gang. I find the evidence presented was not sufficient to prove King’s gang membership, activity or that the murder was gang related.

Defendant cites People v. Smith (1990), 141 Ill. 2d 40, 565 N.E.2d 900, for the proposition that where the State’s theory of gang membership to show motive is not supported by the evidence, reversal of a defendant’s conviction is required. In Smith, defendant was convicted of murdering a State prison warden who had a reputation for being tough on gang-related activity at the prison. The State’s theory of the case was that the warden had been killed by orders of two inmates who were allegedly gang members and had previously had an altercation with the warden. At trial, an assistant warden testified that he had known decedent all his life. Over defense counsel’s objection, the State attempted to elicit testimony from the assistant warden concerning the type of gang activity existing in the prison system. After a sidebar, the court allowed the State to introduce evidence that: the two inmates had previously had an altercation with the warden; there was gang activity in prison; and decedent was a strict disciplinarian. In reversing the appellate court, the Illinois Supreme Court stated that the evidence offered by the State to prove motive was of little probative value. The only evidence offered indicated that there was a variety of gang-related activity in the prison; that the warden was intolerant of such activity; that two inmates at the prison had had an altercation with the warden; and that defendant had been seen in an apartment of one of these inmates on one prior occasion. The court held that this evidence was “simply too slim a thread upon which to tie the State’s theory of motive.” Smith, 141 Ill. 2d at 59; accord People v. Maisonet (1979), 138 Ill. App. 3d 716, 486 N.E.2d 277, 279.

I find the Smith decision instructive. The fact that King here had been seen in the company of gang members on a prior occasion is inconclusive of whether King in fact was a member of or active with a gang. In reviewing the record, I find no additional evidence to support the State’s theory that the murder of decedent was related to King’s alleged gang affiliation. The witness did not testify to the circumstances of King’s past presence in the company of gang members, or to the number of occasions he had seen King in their presence. There was no evidence of King or anyone else present exchanging gang symbols, no evidence of gang colors, or any other indicia of gang membership, and in fact, no evidence that King even heard decedent’s comment about the “Hooks.” The State’s theory suggested that there was “bad blood” between the Vice Lords and Disciples. However, both Rico and codefendant Williams were friends. Additionally, the evidence at trial revealed that only a shoving and pushing match took place. The State never produced evidence that the group of men leaving the building were Vice Lords, nor that there was rivalry between the two gangs. There is a dearth of evidence to prove that King was acquainted with Stevon or knew him to be a member of any gang. Therefore, I conclude that the improper evidence of gang-related activity prejudiced the jury and constituted a material factor leading to King’s conviction.

Additionally, as King further contends, the State compounded this error by its reference to gang-related activity both during opening statements and closing arguments, which in my judgment deprived him of a fair trial. The evidence of gang affiliation referred to both during the State’s opening statement and in closing argument was nonexistent. The evidence did not show that King was a member of a rival gang and only showed that codefendant Williams once upon a time, but not presently, had been a gang member. There was not a scintilla of evidence that the individuals who came out of the building to watch the fight were members of the Vice Lords. In fact Butler, who was one of the men exiting the building (according to the State— a Vice Lord), and Rico (an admitted Disciple) were the two who broke up the fight. Additionally, Williams (according to the State — a Vice Lord) and Rico (an admitted Disciple) were friends. However, after explaining to the jury its theory of what it expected the evidence would show, it should have become clear after the State’s witnesses testified that the anticipated testimony of gang affiliation did not exist. Moreover, there is nothing in the record to support the allegation that Rico feared retaliation by rival gang members if he was sent to the penitentiary or that Monique told two different stories because she was afraid of gang retaliation.

Attorneys are allowed considerable leeway in making closing and rebuttal arguments, and the scope of closing argument falls within the discretion of the trial court. (People v. Simms (1988), 121 Ill. 2d 259, 520 N.E.2d 308.) However, improper remarks warrant reversal if substantial prejudice to defendant occurs. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

I reiterate that there was a lack of evidence in the record to support the theory that the murder was gang related and that Rico feared gang reprisals if he went to the penitentiary. Therefore, the comments by the prosecutor during closing and rebuttal argument intimating this were substantially prejudicial to King. This is particularly true where the prosecutor persisted in argument after the court admonished him not to refer to Rico’s fear of gang reprisals if he went to prison. People v. Mullen (1990), 141 Ill. 2d 394, 404, 566 N.E.2d 222; People v. Hovanec (1976), 40 Ill. App. 3d 15, 351 N.E.2d 402.

I further find that the court erred by allowing the State to impeach its own witness without laying a proper foundation. During direct examination of Monique Chambers, the following questions were asked:

“[Prosecutor]: *** After the fight ended, where did Wesley and Alan go?
[Monique]: Around to the front of the building.
Q. Did you see whether or not they went into the building?
A. No.
[Defense Counsel]: Objection.
THE COURT: Overruled.
[Prosecutor]: Did you see where they went at all after they went around to the front of the building?
A. No.”

Subsequently, the State called Detective Carey as an impeaching witness. Detective Carey made reference to statements made by Chambers to him, and defense counsel objected. At sidebar, the State made an offer of proof that Detective Carey would testify, among other things, that Chambers told him she saw defendant and Williams run back into the building after the fight. The court determined that the proper foundation had been laid. The court advised defense counsel that Chambers could be subpoenaed back to testify again. Carey then testified as follows:

“[Monique] said after the altercation between Stevon Draine and Mr. Williams that Mr. Williams and an individual by the name of Wesley King left their presence and walked into a building which would have would be approximately — approximately 2409 East 72nd Street. It’s right on the comer of 72nd and Phillips. They went into that building.”

It is true that a witness may be impeached by proof that she made a statement outside of court contradicting her in-court testimony, or that she failed to speak under circumstances where it would have been natural to relate the matter testified to in court if true. However, before a prior inconsistent statement of a witness is allowed into evidence for impeachment purposes, a proper foundation must be laid. (People v. King (1987), 157 Ill. App. 3d 76, 511 N.E.2d 685.) The impeachment of a witness with a prior inconsistent statement must be preceded by directing the attention of the witness to the time, place, circumstances and substance of the inconsistent statement. People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31; People v. Cowper (1986), 145 Ill. App. 3d 1074, 493 N.E.2d 729.

Here, the court itself expressed some doubt in allowing the testimony into evidence. The court stated that, “I may be criticized for [letting it in, but] I’m going to let it all come in, both sides.” The court erroneously determined that a proper foundation had been laid for the statement, and Detective Carey was allowed to testify as to the alleged inconsistent statement.

I have carefully reviewed the record and find that a proper foundation necessary for impeachment was not established. While Chambers acknowledged on direct examination that she had spoken to a detective about having seen Wesley with a gun, having heard a shot and seen fire coming from the gun, she never was asked by the prosecutor whether she told the officer that she saw Williams and defendant enter the building after the fight. The State, in its brief, seems to have misconstrued which statement the defense takes issue with.

The prosecutor did not direct Chamber's attention to the time, place, circumstances and substance of any alleged inconsistent statement purportedly made by her about defendant entering the building. The court’s recollection was in error recalling that the proper foundation had been laid. By failing to require the State to lay the proper foundation before allowing introduction of the prior inconsistent statement, the court erred. The question then becomes whether the error was harmless.

In determining whether evidentiary errors may be categorized as harmless, we must look to whether the “properly admitted evidence is so overwhelming that no fair-minded jury could reasonably have voted to acquit the defendant.” People v. Carlson (1982), 92 Ill. 2d 440, 449, 442 N.E.2d 504.

While the majority concedes that the State failed to lay a proper foundation, but attempts to minimize its significance, the importance of this error becomes evident in the context of what Monique’s testimony had established. It revealed that during the altercation between codefendant Williams and decedent Draine, Monique was standing 35 to 40 feet south on Phillips. The building extended for almost an entire one half of the block on Phillips. When the fight ended, Stevon walked south on Phillips to rejoin Monique, Anita and Rico. It is undisputed that codefendant Williams and King walked around the corner on 72nd Street and both State occurrence witnesses testified that it was impossible to see around the comer. Consequently, it would have been impossible for Monique to have seen Williams or King enter Williams’ apartment building. Moreover it is undisputed that neither of the defendants was armed with a gun during the fight. Hence, the State was unable to show that either of the two defendants ever entered Williams’ apartment after the fight ended to obtain a weapon, which was the State’s theory as it sought to impeach Monique as to this fact. Accordingly, I find the court’s error in allowing the State to impeach Monique in the absence of a proper foundation was prejudicial to King and reversible error.

Moreover, the State presented two witnesses, one of whom was a convicted felon who was given leniency in a pending case in exchange for his testimony in the case at bar. The other was Monique Chambers, whose prior inconsistent statement placed the gun in King’s hand. However, at trial she recanted that statement. Ms. Chambers’ credibility, or lack thereof, was placed into issue by the State, notwithstanding that she was a prosecution witness.

While the State suggests in its brief that Monique’s statement was offered both as impeachment and as substantive evidence, the State apparently misconstrues the requirements of the statutory provision that allows certain prior inconsistent statements to be received as substantive evidence. As a prerequisite to its admission under the statute, the prior statement must either have been made under oath at a trial, hearing or proceeding, or proved to have been written or signed by the witness, or the witness acknowledged under oath the making of the statement, either in his testimony at a trial, or in some other hearing, or the statement is proved to have been sound recorded by electronic means.

As previously pointed out, at trial the State failed to elicit from Monique whether she acknowledged making the prior statement and clearly there is no evidence that the prior statement was under oath, in writing or sound recorded. Hence, it is clear that the State failed to meet the requirements of the statute and the statement was not properly received as substantive evidence.

Credibility was the crux of the ease, and the evidence was not close to being overwhelming considering the type of witnesses the State presented. The court expressed its willingness to accept Chambers’ statement provided the proper foundation was laid. The court stated:

“Substantive or impeaching is one thing but I think you should lay a foundation first *** just lay a foundation.”

After a lengthy colloquy with both counsel, the court appears to have accepted all of Detective Carey’s testimony as impeachment. The court ruled:

“I’m going to let it all in because you’re still going to go to impeachment. I’ll let it all in.”

It clearly appears from the record that the proper foundation had not been laid for impeachment, although the court allowed the statement into evidence for that purpose. Hence, I would find that the error was prejudicial and mandates reversal.

King further maintains that the trial court erred by refusing to allow a defense witness to proffer testimony that would have impeached the credibility of the State’s key witness. The State asserts that the court acted within its discretion by disallowing the testimony into evidence because the witness had already admitted making the statement upon cross-examination. Defense counsel asked the State’s witness, Rico, if he recalled stating to Krawczyk that if he were called to testify he might lie or he might tell the truth. Rico stated on cross-examination:

“No. I told him that if I was called, I would tell the truth. I told him — I told him that. I told — I told, you know, you know, I told him a story, you know. That is what I told him. I told you, if they do call me, I will tell the truth. I am not going to —.”

During King’s case, defense counsel asked Albert Krawczyk whether Rico was questioned about his testimony in the case. The State objected on the grounds that the witness had admitted talking with Krawczyk and that any additional testimony would be cumulative hearsay. The court held a sidebar, after which it stated that the witness had admitted that he made the statement. Therefore, according to the court’s recollection, any testimony by Krawczyk would not have been impeaching, and the State’s objection was sustained.

However, as reflected by the above quotation from the record, clearly Rico denied making a statement to attorneys that he might lie on the -witness stand if called to testify. Defense counsel then made an offer of proof that Krawczyk would testify that Rico said if he was called to testify in the case he did not know if he would lie or tell the truth. The court’s ruling not to allow the impeachment testimony was based on its imprecise recollection that Rico had admitted to making the statement and that the statement would therefore not be impeaching.

The majority concludes that defendant failed to raise this argument in his post-trial motion and that it is therefore waived. Although it is true that defendant faded to raise the issue of the court’s failure to allow impeachment of Krawczyk in his post-trial motion, I have carefully reviewed the State’s brief and find that no issue arguing waiver is raised therein. Further, there are exceptions to the waiver rule when there has been plain error affecting substantial rights which deprive the accused of a fair and impartial trial. (People v. Smith (1990), 141 Ill. 2d 40, 55, 565 N.E.2d 900.) Application of the plain error exception is appropriate here in light of the State’s prejudicial reference to gang-related activity and the type of witnesses presented by the State. There was no evidence of defendant’s membership in or activity with a gang, nor did the witness who testified provide evidence of the circumstances surrounding defendant’s past presence in the company of gang members. Moreover, as mentioned earlier, one of the witnesses presented by the State was a convicted felon who was given leniency for his testimony, and Chambers’ testimony was less than credible. The errors committed in opening and closing arguments by the State could conceivably have inflamed the jury. Moreover, the trial court allowed testimony by Chambers into evidence without requiring the proper foundation.

I find that King was denied a fair trial by the cumulative effects of the court’s admission of testimony and argument relating to gang affiliation, the admission of a State witness’ testimony without the requisite foundation being laid, and the court’s failure to grant defendant the opportunity to impeach a State witness. I conclude that these factors were substantially prejudical and constituted a material factor leading to his conviction. (Smith, 141 Ill. 2d at 79.) Accordingly, I would reverse and remand for a new trial.

Therefore, I respectfully dissent.


author: PRESIDING JUSTICE McCULLOUGH JUSTICE RARICK,

text:
    STEPHEN C. PICKETT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The Cook County Department of Corrections, Appellee).
    First District (Industrial Commission Division)
    No. 1—92—1631WC
    Opinion filed August 6, 1993.
    Rehearing denied December 1, 1993.
    Jerome E. Cihak, of Hennessy & Cihak, P.C., of Chicago, for appellant.
    Karen A. Covy, Deputy State’s Attorney (Frank J. Oles and John P. Carreon, Assistant State’s Attorneys, of counsel), for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant, a Cook County sheriff’s department correctional officer, filed an application for adjustment of claim over injuries he received while playing in a basketball game as a member of the sheriff's department team. The arbitrator awarded benefits, concluding that the accident occurred in the course of employment due to respondent’s control and supervision of, and the benefit it enjoyed from, the operation of the team. The Industrial Commission (Commission) affirmed the arbitrator. On review, the circuit court reversed the Commission on the basis its decision was against the manifest weight of the evidence because plaintiff’s participation on the team was entirely voluntary. Plaintiff appeals, contending the Commission’s determination that his injuries occurred in the course of his employment was not against the manifest weight of the evidence.

The facts are largely undisputed. Claimant was employed as a correctional officer with the Cook County sheriff’s department for five years prior to his accident. He was a member of the basketball team sponsored by the sheriff’s department for two of those years.

The team participated in an organized league composed of members from other sheriffs’ offices and correctional departments around the State and country. The sheriff’s department supplied the uniforms and a gymnasium in which to practice. Claimant’s team played at least once a week and was involved in a tournament at the end of the season. The team coach was a coemployee of the Cook County sheriff’s office.

On July 21, 1987, during a tournament game with the Chicago police department, claimant injured his left knee while retrieving a rebound. The extent of his injuries is not at issue.

Claimant testified that the games usually occurred in the late afternoon and on occasion during normal working hours. When he had to travel with the team or play during working hours, he was allowed time off from his correctional officer duties and was paid for those hours.

On cross-examination, claimant stated that he played no role in the organization of the basketball team. He did not pay for his uniform and it was returned to the sheriff’s department at the conclusion of the season. A prison gymnasium in which the team practiced was secured by the coach. Claimant’s coach was not his immediate supervisor.

Claimant stated his normal work schedule consisted of four consecutive eight-hour shifts followed by two days off. He worked the same schedule during basketball season and was paid for any time he spent playing in games. If his schedule conflicted with the basketball games, he would work fewer hours at his correctional officer duties.

Claimant admitted, however, that on occasion he took personal days off to arrange his playing schedule around his normal work shift. He also conceded he was never asked by his immediate supervisor to play on the team, was never told he had to play on the team, and was never informed that something untoward would happen if he did not play on the team. Team members were also responsible for arranging their own transportation to and from games.

The arbitrator concluded the award was compensable. The Commission affirmed the arbitrator on that issue, but reduced the amount of permanent partial benefits which had been awarded. On further review, the circuit court reversed the Commission’s decision concluding there was absolutely no evidence that claimant’s participation on the basketball team was anything other than completely voluntary.

The relevant statutory provision concerning recreational activities is section 11 of the Workers’ Compensation Act (Act) (111. Rev. Stat. 1991, ch. 48, par. 138.11), which provides:

“Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program.”

In reviewing Commission decisions, we apply a familiar standard:

“The Commission’s findings of fact are not to be set aside by a reviewing court unless contrary to the manifest weight of the evidence. [Citation.] Its determinations will not be set aside if they are supported by credible evidence in the record. [Citation.] Even though the facts are undisputed, where such facts permit more than one reasonable inference, then a question of fact is presented, and the conclusion of the Commission on the fact will not be disturbed by a reviewing court unless it is against the manifest weight of the evidence. [Citation.] A reviewing court will not overturn the Commission’s findings simply because different inferences could be drawn, or otherwise substitute its judgment for that of the Commission.” Cary Fire Protection District v. Industrial Comm’n (1991), 211 Ill. App. 3d 20, 25, 569 N.E.2d 1338, 1341-42.

Several cases have been subject to our review since the adoption of the amendment to section 11 of the Act, which excludes recreational activities from coverage. These decisions stand for the principle that an employer’s support for and the benefit derived from recreational activities it sponsors is not, of itself, sufficient to bring claimant’s injury within the course of his employment. (Kozak v. Industrial Comm’n (1991), 219 Ill. App. 3d 629, 579 N.E.2d 921; Chicago Transit Authority v. Industrial Comm’n (1992), 238 Ill. App. 3d 224, 228, 606 N.E.2d 240, 243.) Simply put, accidental injuries incurred by an employee while participating in a voluntary recreational program are excluded from coverage by section 11 of the Act. Law Offices of William W. Schooley v. Industrial Comm’n (1987), 151 Ill. App. 3d 1069, 503 N.E.2d 1186.

Appellant focuses, as did the arbitrator and the Commission, on the control which the sheriff’s department asserted over the basketball team. Among those facts over which there is no meaningful dispute is that someone within the sheriff’s department organized the team, which participated in a league comprised of teams from other police departments. The sheriff’s department provided uniforms to the players, and the coach was a coemployee of claimant but not his immediate supervisor. The coach was responsible for securing a gymnasium in which the team could practice and claimant was paid his regular salary during any normal working hours when he was playing with the team. Claimant’s schedule was adjusted so that he could participate in games although there is some evidence, based on claimant’s own testimony, that he would, on occasion, take a personal day to accommodate his working schedule with that of the basketball team.

While there is certainly evidence of control and there is no serious dispute that the employer may have received some intangible benefit by sponsoring the team, this alone is insufficient to render the injury compensable. (Kozak, 219 Ill. App. 3d at 632, 579 N.E.2d at 923.) The statute explicitly excludes coverage even if some or all of the costs of the recreational activity are borne by the employer.

Respondent correctly points out that the pivotal issue which determines whether the activity is within the coverage of the Act is whether the employee is ordered or assigned to participate in the activity, since this is the only exception to section 11 exclusion from coverage. Chicago Transit Authority, 238 Ill. App. 3d at 229, 606 N.E.2d at 243.

In its meticulous opinion, the circuit court, after examining the record, concluded there was not a scintilla of evidence that claimant’s participation on the team was anything other than voluntary. He had worked for the department for five years and was only on his second year of participation on the team. Claimant did not organize the team or the league. He was never asked by his supervisor to participate on the team, was never told he had to play, and was not advised that he would suffer some work-related detriment if he failed to play on the team. In short, the only evidence in this record is that respondent organized a basketball team and claimant voluntarily chose to be a part of that team. There is nothing to suggest that respondent did anything other than make the recreational activity available to employees who wished to participate.

For these reasons, this case is readily distinguishable from the situation presented in Chicago Transit Authority, where the evidence supported the conclusion that the employee was expressly recruited and hired by transit authority personnel to play basketball although he was nominally an employee of the authority. In this case, there was no such evidence, and nothing to indicate that personnel from the sheriffs department actively solicited claimant to play on the team, much less that he was ordered or assigned to do so.

Claimant maintains that evidence concerning respondent’s control and supervision of, and the benefit derived from, the activity by the employer may be considered as part of the totality of the circumstances in determining whether the injury is compensable. Cases which support this standard, however, predate the existence of the amendment to section 11 of the Act, and it is now clear that the principle issue in determining whether recreational activities are compensable is whether the employee’s participation was voluntary in the sense that it was ordered or assigned by the employer. Kozak, 219 Ill. App. 3d at 633, 579 N.E.2d at 924; Cary Fire Protection District, 211 Ill. App. 3d at 25, 569 N.E.2d at 1342; Chicago Transit Authority, 238 Ill. App. 3d at 229, 606 N.E.2d at 243.

While an employer’s control over the recreational activity may corroborate a claim that an employee’s participation was ordered or assigned, it is not, of itself, sufficient to either demonstrate that fact or support an award of benefits independent of proof of an employer’s assignment or direction to participate in the activity.

In view of the foregoing, we need not consider appellant’s final contention that the circuit court usurped the Commission’s function by improperly drawing different inferences from the facts and making erroneous determinations of what the evidence showed with respect to the employer’s control over the recreational activity. None of these alleged errors, even if resolved in claimant’s favor, touch upon the central issue of whether the record is devoid of any evidence suggesting that the employer assigned or ordered claimant’s participation on the basketball team.

Accordingly, we affirm the judgment of the circuit court which determined that the Commission’s decision was against the manifest weight of the evidence.

Affirmed.

STOUDER and EGAN, JJ., concur.

JUSTICE RARICK,

dissenting:

I believe that the Commission’s decision was not against the manifest weight of the evidence and accordingly I dissent. The majority, in my opinion, misses the point when it focuses on the first sentence of the second paragraph from section 11 of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.11), which provides in pertinent part that “[accidental injuries incurred while participating in voluntary recreational programs *** do not arise out of and in the course of employment even though the employer pays some or all of the cost thereof.” Citing Law Offices of William W. Schooley v. Industrial Comm’n (1987), 151 Ill. App. 3d 1069, 503 N.E.2d 1186, the majority states: “Simply put, accidental injuries incurred by an employee while participating in a voluntary recreational program are excluded from coverage by section 11 of the Act.” (252 Ill. App. 3d at 358.) I have no quarrel with this statement. The issue in this case, however, is not whether claimant’s participation was voluntary, but whether his participation could reasonably be considered an assignment.

The second sentence of the second paragraph of section 11 of the Act provides that the voluntary recreational activity exclusion does not apply if the “injured employee was ordered or assigned by his employer to participate in the program.” (Ill. Rev. Stat. 1991, ch. 48, par. 138.11.) The arbitrator and the Commission found that the claimant was assigned to play basketball. It is well established that a reviewing court cannot disregard or reject reasonable inferences drawn by the Commission from the established evidence merely because different or conflicting inferences might be drawn. (Holthaus v. Industrial Comm’n (1984), 127 Ill. App. 3d 732, 736, 469 N.E.2d 237, 239.) If the undisputed facts give rise to reasonable conflicting inferences, it is the function of the Commission to resolve the conflict and draw permissible inferences, and its decision as to the weight of the evidence will not be disturbed on review. (Greene v. Industrial Comm’n (1981), 87 Ill. 2d 1, 5, 428 N.E.2d 476, 477; Old Ben Coal Co. v. Industrial Comm’n (1991), 217 Ill. App. 3d 70, 83-84, 576 N.E.2d 890, 899.) I believe the Commission’s finding that claimant was assigned to play basketball was not against the manifest weight of the evidence. The undisputed facts are that the employer sponsored a team and supplied uniforms. The employer also provided a gymnasium for the team to practice, supplied a coach, and provided transportation to and from the games. In addition, if claimant worked a schedule which conflicted with a basketball game or had to travel with the team when he was scheduled to work, he was not only allowed time off from his duties as a correctional officer, but also paid for that time. I find it incongruous for the employer to acknowledge that it paid claimant to play basketball yet argue that basketball was not part of claimant’s assignment. Both the arbitrator and the Commission concluded that claimant’s assignment during certain hours was to play basketball. Certainly, there are facts in the record which support that finding.

In both Kozak v. Industrial Comm’n (1991), 219 Ill. App. 3d 629, 579 N.E.2d 921, and Cary Fire Protection District v. Industrial Comm’n (1991), 211 Ill. App. 3d 20, 569 N.E.2d 1338, which were relied upon by the majority, this court held that the Commission’s determination of whether the claimant was excluded under section 11 was not against the manifest weight of the evidence. Schooley, cited by the majority, not only fails to support the majority’s position, but in fact supports the claimant’s position in the instant case. In Schooley, an attorney was allowed to recover for injuries incurred during voluntary participation on a softball team sponsored by his father’s law firm. It should also be noted that the appellate court reached this decision despite a contrary finding by the Commission. In Chicago Transit Authority, we affirmed the finding of the Commission that claimant was assigned to play basketball. Neither Kozak nor Cary Fire Protection District contains facts that even approach the strength of claimant’s facts in this case. While Schooley and Chicago Transit Authority contain facts tending to show that those claimants were assigned to voluntary recreational programs, neither case is as strong as the facts in the case at bar.

I would reverse the judgment of the circuit court, which determined that the Commission’s decision was against the manifest weight of the evidence, and reinstate the decision of the Commission.

WOODWARD, J., joins in this dissent.