author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Simon Arnold, Jr., Defendant-Appellant.
    (No. 57957;
    First District (2nd Division)
    February 19, 1974.

      Thomas W. Hunter, of Park Ridge, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendant was charged in two separate indictments with the crime of murder in violation of section 9—1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9—1). On October 18, 1971, defendant entered a negotiated plea of guilty to both indictments, the sentences to run concurrently. On appeal, defendant’s only argument is that the trial court failed to comply with Supreme Court Rule 402(c) prior to accepting his plea of guilty.

On October 18, 1971, defendant’s case was called and both sides answered ready for trial. Defense counsel requested a pretrial conference with the court. The trial judge replied that he had previously held several conferences and in the absence of an agreement between the defense attorney and the assistant State’s Attorney, he felt that another conference would not be of any value. After a short recess, defense counsel informed the trial judge that there had been an agreement with the assistant State’s Attorney and again requested a conference with the court. The trial court held a pretrial court conference in open corut in the defendant’s presence. The tidal judge indicated that upon a plea of guilty he would sentence the defendant to a term of 20 to 60 years on each indictment, the sentences to run concurrently.

Defense counsel then informed the trial court that the defendant wished to withdraw his previously entered plea of not guilty and enter a plea of guilty to both indictments. The trial court admonished the defendant that by pleading guilty he waived his right to a jury trial. Both indictments were read to defendant, who indicated that he understood the charges. Defendant was informed that upon each indictment he could be sentenced to death or imprisonment for an indeterminate term with a minimum of not less than 14 years and that the sentences could be concurrent or consecutive. Defendant stated that he understood that by pleading guilty there would not be a trial of any kind, and that on a plea of guilty he was waiving his right to a jury trial and his right to be confronted by the witnesses against him. Defendant stated that he was pleading guilty because he was in fact guilty and that he understood that there had been a conference in which he had participated and been present. Defendant stated that there had been no force or threats or promises to induce him to plead guilty and that he understood that he had a right to persist in his plea of not guilty. After these admonishments, defendant persisted in his plea of guilty, which was then accepted.

The assistant State’s Attorney then stated that it would be the testimony of various State’s witnesses that on January 10, 1970, a approximately 2:35 P.M., defendant and Curtis Clark entered the building at 1440 W. 14th Street, Chicago, Illinois, for the purpose of defendant’s getting money to pay a debt he owed Clark arising from the sale of drugs. While on the eighth floor of that building, defendant shot Clark. Clark then fled up to the eleventh, floor where he was pursued by defendant who again shot him several times. At approximately 3:20 P.M., defendant was in the vicinity of 15th Street and Throop Street, Chicago, Illinois. At that time, defendant met Richard Harbour, a friend of Curtis Clark. While Harbour was seated in a car located at that intersection, defendant also shot and killed him. Defense counsel stipulated to the facts as stated by the assistant State’s Attorney and also to defendant’s written statement; all were made part of the record.

In defendant’s written statement which had been given to an assistant State’s Attorney, defendant admitted that he shot Clark and Harbour. Defendant stated that on January 10, 1970, he and Clark were on the eighth floor of 1440 W. 14th Street, Chicago, Illinois, when Clark pulled a pistol out of his pocket, at which time defendant pulled his gun and fired, hitting Clark in the chest. As Clark turned and fled, defendant pursued and kept firing at him. Clark ran up the stairway while the defendant was still firing at him. Defendant had fired all five shots in his weapon. Defendant then proceeded up to the eleventh floor where he found Clark lying on the floor. Clark attempted to pull his gun but defendant took possession of Clark’s gun and fired two rounds into Clark’s head. Defendant tiren proceeded to 1543 W. 15th Street to get more ammunition for his weapon. Approximately an hour later, defendant was in the vicinity of 15th Street and Racine when he saw Richard Harbour, a friend of Clark’s. Harbour was seated in Clark’s automobile. At that time, a car came around the corner and someone hollered, “Get him.” Defendant observed something in Richard Harbour’s hand and immediately fired from tire open window of his car, hitting and IdUing Richard Harbour.

On appeal, defendant’s sole argument is that the trial court failed to comply with Supreme Court Rule 402(c) in that the court did not determine that there was a factual basis prior to accepting his plea of guilty. The gist of defendant’s theory is that the facts, as stated by the assistant State’s Attorney and in defendant’s written statement, fail to demonstrate the prerequisite mental state to commit the crime of murder.

Supreme Court Rule 402(c) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(c)) requires the trial judge to determine whether there is a factual basis for the plea before entering final judgment. The rule requires substantial compliance with its terms. (People v. Krassel, 12 Ill.App.3d 64, 298 N.E.2d 384; see People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30.) The quantum of proof necessary to determine if there is a factual basis for the plea is less than that necessary to sustain a conviction after a full trial.

In the case at bar, there had been at least three pretrial conferences at which the trial judge was informed of the facts of each case. At the plea of guilty, each of the two indictments was read to the defendant, who stated that he understood them. Defendant then stated he was entering a plea of guilty because he was in fact guilty of the crimes as stated in the indictments. Prior to entering his plea, defendant knew the exact sentence he would receive upon a plea of guilty. After all of the proper admonishments, the assistant State’s Attorney stated that the defendant had shot and killed two people, giving the peoples’ names, the addresses, the times and the motives for the shootings. Defendant’s written statement to the police, which was also introduced into evidence in which defendant endeavored to show that there was justification for the shootings, is not sufficient to establish a lack of a factual basis. Supreme Court Rule 402(c) does not require that the trial judge be convinced beyond a reasonable doubt that there is a factual basis for each element of the crime charged. In the case at bar, the trial court had sufficient evidence to determine that there was a factual basis for the plea of guilty voluntarily entered by defendant. People v. Reddick, 11 Ill.App.3d 492, 297 N.E.2d 360; People v. Love, 6 Ill.App.3d 577, 286 N.E.2d 355.

The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

HAYES, P. J., and LEIGHTON, J, concur.


source: Caselaw Access Project

author: Mr. JUSTICE BURMAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy Bunting, Defendant-Appellant.
    (No. 58515;
    First District (4th Division)
    February 20, 1974.

      Michael W. Coffield and Peter J. Mueller, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Barry Rand Elden, Jonathan B. Gilbert, and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Roy Bunting, went to trial on a four count indictment charging him and two others, Gilbert Mims and Jeffrey Dixon, with three counts of murder, including one of felony murder, and one count of armed robbery. Gilbert Mims was tried separately and found not guilty. Jeffrey Dixon was never brought to trial.

Following his arrest, the defendant made an oral statement to police admitting his involvement in the robbery-murder with which he was charged. Subsequently, he signed a typewritten statement in the State’s Attorney’s office. A motion was made by defendant’s attorney to suppress the confessions prior to trial. The motion was heard and denied. Defendant then waived trial by jury and was found guilty in a bench trial as charged. He was sentenced to serve not less than thirty years and not more than sixty years in the Illinois State Penitentiary on the murder conviction. The trial judge held that the offense of armed robbery was part of the same act and did not sentence him on that charge.

The defendant argues in this appeal that (1) the confession should not have been used as evidence against him at trial because it was coerced and obtained without constitutionally required procedures and warnings and (2) the failure of his appointed counsel to call material witnesses deprived him of adequate and competent counsel and the court’s denial of his pro se request for substitution of counsel was an abuse of discretion.

The record reveals that Michael Rose, the victim of a robbery-murder, was employed by Hillmans Company. He was vested with the responsibility of picking up pay envelopes at the Hillman’s Food Store on Washington Street in Chicago and delivering them to the Hillman’s produce center warehouse on South Martin Luther King Drive. Rose Bertrand, the main cashier for Hillmans testified that Michael Rose picked up pay envelopes containing a total of approximately $1600 in cash at the Washington Street store between 10:30 and 11:00 on the morning of May 20, 1970. Upon information received, Officer James Maziarka at approximately 3:45 P.M. on the same day discovered Michael Rose slumped in the front seat of a Chevy station wagon, with a bullet through the back of his head. According to the officer, “he had been dead for some time.” The pay envelopes were no longer in his possession.

Robert Blakely testified that he worked as a truck loader at the Hill-man’s produce center warehouse on King Drive. He said that he was paid in cash on Wednesdays, that he knew Michael Rose, and that Michael Rose would deliver the pay envelopes to the produce center. He testified that he was not paid on Wednesday, May 20, 1970. When he finished work that afternoon, he had occasion to visit his aunt’s house at 2350 South State. Upon arriving he observed squad cars and Michael Rose’s station wagon in the alley of the 2400 block of South State. Blakely further testified that the following day he saw the defendant, Roy Bunting, whom he had known for about nine years, sitting on a bench at 2611 South Calumet. He testified the defendant said to him “You didn’t get paid today, did you?” Blakely asked him how he knew and he replied, “Because we robbed, we got the checks and we robbed Michael Rose.”

Officer Dale Buehler testified that he and Officer John Ferguson arrested the defendant on June 17, 1970, without a warrant and took him to Area I Homicide Headquarters at 5101 South Wentworth Avenue. Defendant was advised of his constitutional rights and questioned by Officer John Fitzgerald. After approximately half an hour defendant orally admitted his involvement in the robbery-murder. He was then transported to the office of Assistant State’s Attorney John J. McDonnell, who took a written statement from him.

The defendant’s first argument on appeal is that the denial of his motion to suppress the confession and the admission of the confession into evidence was error. This extensive argument can be distilled into three parts: First, that the warnings the defendant received prior to interrogation, as required by Miranda v. Arizona, 384 U.S. 436, were inadequate; second, that defendant did not adequately waive his right to counsel; and third, that the sum of the attendant circumstances, including claimed police threats and promises and the defendant’s “drugged, drowsy, and uncomfortable condition” during his questioning, rendered his statements involuntary.

Before considering these contentions, we note that it is also urged in defendant’s brief at one point in passing, without elucidation, that his warrantless arrest was illegal. This is apparently based in part on his testimony at the hearing on the motion to suppress the confession that the police told him that they wanted him to accompany them to tire police station in connection with some trouble his younger brother was having at school. Defendant’s mother, who directed the police to his whereabouts, testified at the hearing that the police told her that a car was stolen and they wanted him to identify someone else. The arresting police officers testified that they informed the defendant that he was being taken into custody for investigation regarding the homicide of Michael Rose.

We find no merit to the cryptic assertion that the defendant was arrested illegally. The police may arrest without a warrant when a criminal offense has in fact been committed and they have reasonable grounds for believing that the person to be arrested has committed it. (Ill. Rev. Stat. 1969, ch. 38, par. 107—2.) The evidence supports the conclusion that the police had ample information to reasonably believe the defendant might have committed the homicide before making the arrest, and the defendant, neither in the trial court nor on appeal, specifically questioned that the police had such information.

We turn now to defendant’s contention that the warnings given to him before he made a statement do not satisfy the requirements of Miranda and that therefore the State failed to prove that his confession was voluntarily given.

After a lengthy hearing on the motion to suppress, the trial judge concluded that the defendant had been properly given the Miranda warnings before he gave an oral statement and again before he subsequently signed a written one. The evidence overwhelmingly supports this finding.

Dale Buehler, one of the arresting officers, testified that when they were en route to police headquarters he advised the defendant that:

“* * * he had a right to remain silent; that if he did not remain silent that anything he said can and will be used against him in a court of law; that he had a right to have an attorney present during any questioning; and that he also had a right if he had no funds an attorney would be supplied for him [sic].” (Emphasis added.)

John Ferguson, the other arresting officer, testified that:

“Detective Buehler advised him * * * and * * * he was re-advised by Buehler and Detective Fitzgerald * * * [of] his right to remain silent; * * * to have an attorney present at any questioning; * * * to have an attorney appointed for him if he didn’t have sufficient funds to pay for the attorney; * * * that anything he said might be used against him at some future court proceedings.” (Emphasis added.)

John Fitzgerald, one of tire interrogating officers, testified that when he encountered the defendant in the interrogation room at Area I Homicide Headquarters he:

“* * * informed him that he had the right to remain silent, also that if he did give a statement that anything he said could and would be used against him in a court of law. I also told him that he had the right to have an attorney present in the room during the questioning and I also told him that if he could not afford an attorney that the State’s Attorney’s Office would be notified for an attorney to be sent over to represent him. I also told him that if he did give a statement that he could stop the statement anytime he wished.” (Emphasis added.)

Assistant State’s Attorney John McDonnell testified that he again fully advised the defendant of his rights. The extensive warnings given by McDonnell are part of the written statement signed by defendant, and include the admonition:

“[Y]ou have a right * * * to talk to a lawyer and have him present if you want to malee a statement * * * and if you don’t have a lawyer, the Court will appoint one for you * * * and if * * * in the middle of the statement you want to stop and talk to a lawyer, you have a right to do that, too. * * * Now, if you don’t have any money to hire a lawyer, you know the Court will appoint one for you, do you understand that # * * »

The insufficiency of the above warnings is urged in that they failed to advise defendant that he had the right to consult with an appointed counsel before the questioning began. It is asserted that the clear meaning of the language used by Officers Buehler and Ferguson to inform defendant of his constitutional right to appointed counsel is that the State would pay a lawyer to represent him at some future trial. The Assistant State’s Attorney’s reference to counsel being appointed by “the Court,” in his remarks recorded in defendant’s written confession, are also urged as misleading and confusing in this regard. It is further argued that Officer Fitzgerald’s admonition that “if [the defendant] could not afford an attorney that the State’s Attorney’s Office would be notified for an attorney to be sent over to represent him” is misleading because of the reference to the State’s Attorney’s office as the agency supplying an attorney.

Defendant notes correctly, and we fully recognize, that the Miranda decision places the burden on the State’s shoulders in regard to statements made by an accused during incommunicado interrogation. (Miranda v. Arizona, 384 U.S. 436, 475.) We in no way wish to dilute the right of an accused to be informed of his privilege against self-incrimination and his right to retained or appointed counsel before volunteering a statement. But to argue that the language used here did not convey to defendant that he had a right to consult with appointed counsel “prior to any questioning” is to accentuate form in derogation of substance. Defendant was informed that he had a right to have an attorney present “at any questioning” and “during any questioning,” and that if he did not have sufficient funds, one would be appointed for him, and that he need make no statement at all. The clear and undeniable import of this language is that the defendant could consult with counsel immediately if he so desired. As the Illinois Supreme Court stated in People v. Prim, 53 Ill.2d 62, 67, 289 N.E.2d 601, 604;

“Miranda does not specify the precise language to be used in conveying the warnings. Certainly the holding of that case does not contemplate a ritualistic recital of meaningless words. Rather it requires an intelligent conveying to the individual involved of the rights set forth in that decision.”

In Prim, the court rejected an analogous argument and found that where the defendant had been informed that he had “a constitutional right not to give a statement,” followed by the advice that he had “a constitutional right to have an attorney present,” ‘he was clearly told that he had a right to have an attorney present at the contemplated interrogation and not at some future time.” And “[w]hen defendant was further told that if he could not afford an attorney ‘that we [the State’s Attorney] would get one for you he was clearly informed that an attorney would be provided at the interrogation and not at some future proceeding.” 53 Ill.2d at 66-67, 289 N.E.8d at 604.

We hold here that the trial court properly found that the defendant was fully advised of his rights as required by Miranda before both his oral admissions and his written confession.

It is next urged that the testimony fails to reveal a knowing waiver by defendant of his right to remain silent and to have counsel present. We disagree. Defendant’s own reply brief, as well as the State’s brief, recites the following language regarding the form of a waiver contained in People v. Higgins, 50 Ill.2d 221, 227, 278 N.E.2d 68, 72, cert. denied, 409 U.S. 855.

“‘Once the defendant has been informed of his rights and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them.’ People v. Johnson, 70 Cal.2d 541, 450 P.2d 865, 876.”

The record here shows that after the defendant was admonished regarding his rights, he said he understood them and proceeded to make a statement. There was thus sufficient evidence of a knowing waiver, under Higgins.

The final contention relating to alleged error in allowing use of defendant’s confession at trial is that it was involuntary because it was elicited by police threats and promises while he was suffering from cold, lack of sleep and the effect of drugs that he had ingested the night before.

We initially note that whether a statement is voluntary depends upon the totality of the circumstances. The test is whether it has been made freely, voluntarily and without compulsion or inducement of any sort, or whether the defendant’s will was overborne at the time he confessed. (People v. Hester, 39 Ill.2d 489, 497, 237 N.E.2d 466, 472-73.) In making its decision the trial court need not be convinced beyond a reasonable doubt that the confession was voluntary (Lego v. Twomey, 404 U.S. 477), and its finding will not be disturbed on review unless it is contrary to the manifest weight of the evidence. People v. Prim, 53 Ill.2d 62, 70, 289 N.E.2d 601, 606.

Defendant testified at the hearing on the motion to suppress that both the police headquarters and die State’s Attorney’s Office were cold and that he shivered while questioned. He said he complained about this but was told that it was not cold and that he had “bad blood.” He testified further that he had been up virtually all night prior to the morning of his arrest, smoking marijuana and “snorting” heroin and that he was still under the effect of these drugs during his interrogation. He said he was first told by Officer Ferguson at police headquarters that the offense “holds the chair.” After being taken into another room, Officer Fitzgerald allegedly lulled him by telling him he “need[ed] a friend.” He further testified that Fitzgerald said something about a deal and mentioned that there was a $15,000 reward that he would get if he had some knowledge about the crime.

The record also includes the testimony of all the police officers who were present when the defendant was arrested and questioned as well as the testimony of all other witnesses who had been with the defendant from tile time of his arrest until the completion of his oral admissions and subsequent signed statement. This testimony fully rebuts the defendant’s version of the interrogation. Officers John Ferguson, Dale Buehler, and John Fitzgerald testified that the defendant was fully advised of his constitutional rights and not coerced, abused, threatened, or promised leniency or benefits before he gave an oral confession. They also testified that the defendant showed no signs of fatigue, that the police rooms were comfortable, and that the defendant made no complaints abotit being cold or of threats or abuse. Edward Hand, security director for Hillman’s who was present during most of the defendant’s interrogation at the police station, and also present when the defendant signed a written statement at the State’s Attorney’s office, corroborated the police officers’ testimony as to the absence of threats and promises to, or complaints by, the defendant.

Furthermore when the defendant, after having made an oral statement to the police officers at Area I Homicide Headquarters, was transported to the State’s Attorney’s Office at 26th Street and South California Avenue, he was questioned by Assistant State’s Attorney John J. McDonnell, who was chief of the vice and gambling unit. The record shows that McDonnell had been with the State’s Attorney’s office since February, 1969. Immediately prior to that he was the deputy chief of the criminal division of the United States Attorney’s office for the Northern District of Illinois. Before that he had been an assistant public defender in the criminal court of Cook County. McDonnell testified that he first asked the defendant if the police advised him of and if he understood his constitutional rights, and he answered affirmatively. He then orally advised him again of his rights before proceeding with any questioning. Defendant again acknowledged that he understood his rights and that he wanted to make a statement. He did so and the confession was taken by a court reporter and subsequently read and signed by him. Me-Donnell further testified that the defendant made no complaints of being threatened or mistreated by the police. No promises of leniency or benefits were made to him to induce him to give a statement. He seemed normal. He showed no signs of fatigue or nervousness and was cooperative.

We recognize that voluntariness presupposes a willingness to talk uninfluenced by force, coercion, promise or intimidation of any kind. (People v. Nemke, 46 Ill.2d 49, 55, 263 N.E.2d 97, 100.) Although the defendant asserts that such influences existed, the totality of the evidence belies his charges. The testimony of all those present during his interrogation and oral and signed confessions indicates that the defendant voluntarily related his participation in the robbery in a matter-of-fact manner and was not promised any reward or leniency, nor threatened. The trial judge who saw and heard the witnesses testify was in a superior position than we and could better evaluate and weigh the evidence. His finding that the defendant’s statements were made voluntarily is supported by the evidence and clearly not contrary to its manifest weight. In view of our holding, we need not discuss the many cases cited by defendant for the proposition that where an oral confession is unlawfully obtained it taints and renders inadmissible a later written confession.

Defendant next contends that he was not represented by competent trial counsel, as evidenced primarily by his appointed counsel’s failure to subpoena certain witnesses, and that the court’s refusal to allow him counsel of his choice constituted a violation of his constitutional rights.

The record reveals that counsel for the defendant was appointed by the court and filed his appearance on July 13, 1970. Various continuances occurred and pre-trial motions were made. Extensive hearings on the motion to suppress the confession were heard on October 13 and 14, 1970. When the case in chief was called to trial on Thursday, October 15, defense counsel apprised the court that his witnesses failed to appear despite promises on their part to do so. He moved the court to continue the case for a week. The trial judge asked if he had subpoenaed the witnesses and he replied: “No, I haven’t, Your Honor. I have reason [to believe] that a witness compelled to be in here may be worse for the defendant than no witness at all.” The judge then indicated that, since the State’s case would take both Thursday and Friday to be presented, and the defense would not have to present witnesses until the following Monday, tire case might proceed immediately and the defense would still have four days to elicit the witnesses’ cooperation. Defense counsel responded:

“I undertand, Your Honor, except that the cooperation I was hoping to elicit from these witnesses seems to me goes to the heart of the case and it is difficult for me to prepare a case unless I have some idea of how cooperative they will be, how much information they are willing to lean to our side so I can best be prepared for the prosecution.”

He then stated that he had known of these witnesses for about two months. He had visited their homes and they had all agreed to appear but failed to do so. He urged that, instead of proceeding with the State’s case, the trial be continued because:

“* * * unless I’m fully apprised of the information and cooperation that my witnesses may be able to afford I’m at a loss to know how I will be able to protect my client * * * [o]n the initial cross examination or even on direct * *

After further colloquy the court, in compliance with defense counsel’s wishes, continued the matter to Tuesday, October 20 at 1:30 P.M. with subpoenas.

When the cause was called for trial on Tuesday, defense counsel informed the court that tire defendant had just told him that he was dissatisfied with the representation given him and that he had a request to make of the court. The defendant then said “I want another lawyer.” This was the first time he had made such a request. The State argued that it was “simply a dilatory tactic to avoid his judgment day” and opposed any further delay. The defendant said he did not feel he was getting the right representation because his lawyer told him it was the first experience he had with a murder trial. This prompted the trial judge to ask .Lance Haddix, appointed counsel, to relate his experience. Haddix had been a lawyer for five years. For four of those years he had numerous voluntary assignments from the Chief Judge for indigent defense work, post-conviction proceedings, and the like. He had been involved with criminal cases for three years and had tried approximately forty of them. The judge concluded that Haddix had considerable trial experience in criminal matters and expressed the view that he was satisfied with his competence, noting that he had demonstrated his attention to the case, and that if there was anything during the subsequent trial of the case that supported defendant’s position he (the judge) would be the first to stop it. Haddix then commented that it would be difficult for him to proceed without the whole-hearted cooperation of his client and “if we are going to be working at cross purposes I really think this goes to [the] heart of whether he will get representation of any sort.” The judge could see no evidence of lack of cooperation, but asked tire defendant if he had another lawyer available. He replied that his mother was “working on someone” he might be able to get, but defendant’s mother, in response to the judge’s inquiry, admitted that she had not made any effort to secure one. The judge, finding no evidence of “cross purposes,” ordered the tidal to proceed. The judge then asked if defense counsel had any other witnesses, besides the defendant’s mother whom he decided not to call, so that they could be excluded from the courtroom while not testifying. Mr. Haddix responded:

‘1 had determined that there were no witnesses who would be willing to testify and was of the opinion that hostile witnesses would be more damaging to our case than subpoenaed witnesses; I had expressed this likewise to Mr. Bunting. He seemed to agree but perhaps at this point he has other thoughts about it.”

We are in accord with the trial judge’s view of the competency of defendant’s counsel. Although, as the defendant points out, it is “the duty of the trial court to see that counsel is assigned who has sufficient ability and experience to fairly represent the defendant, present his defense and protect him from undue oppression” (People v. Morris, 3 Ill.2d 437, 445, 121 N.E.2d 810, 815), we find no violation of that duty here. Defendant has failed to establish either actual incompetence or substantial prejudice, both of which must be indicated before reversal will be warranted on the ground of inadequate representation. (3 Ill.2d at 449, 121 N.E.2d at 817.) See also People v. Newell, 48 Ill.2d 382, 268 N.E.2d 17; People v. Harper, 43 Ill.2d 368, 253 N.E.2d 451.

The defendant relies “principally” on the above cited Newell case, which he reads as implying that reversal would be warranted where defense counsel fails to call a key witness. Aside from the distinguishing features of that case, such reliance is improvident in the sense that adequacy of counsel must be determined “solely from the circumstances of each particular case.” (People v. Francis, 356 Ill. 74, 77, 190 N.E. 106, 107.) Here there is no evidence that defense counsel’s failure to call certain witnesses was based on anything other than the exercise of studied judgment and discretion. The statements of counsel in urging a continuance clearly indicate that he felt that the witnesses’ testimony would be crucial only if their cooperation could be obtained. He spoke of “information and cooperation that [the] witnesses may be able to afford,” and of his desire to determine “how much information they are willing to lean to our side.” (Emphasis added.) His final judgment after interviewing them was that their compelled testimony would be more damaging then helpful and he chose a course of action he believed would be in his client’s best interests. His client “seemed to agree” with this decision, although he might have had “other thoughts about it” at the last moment before trial.

In People v. Martin, 44 Ill.2d 489, 256 N.E.2d 337, the defendant was convicted of murder. On appeal he contended that his appointed attorneys’ failure to call an alibi witness and another witness who could testify to the lack of credibility of a State’s witness deprived him of adequate representation. The court affirmed the conviction, finding that the decision not to call the witnesses was based on the exercise of judgment and discretion. In regard to the prospective alibi witness, “the attorneys had observed [his] demeanor over a period of time. The conclusion that the witness might have done more harm than good’ was certainly an exercise of judgment.” (44 Ill.2d at 490, 256 N.E.2d at 338.) And

“It is well settled that review of appointed counsel’s competence does not extend to those areas involving the exercise of judgment, discretion or trial tactics [citation] and this is true even though appellate counsel or the reviewing court might have acted in a different manner.” People v. Wesley, 30 Ill.2d 131, 136, 195 N.E.2d 708, 711.

We also note that to consider, as defendant urges, the fact of acquittal in a separate trial of co-defendant Gilbert Mims, the alleged trigger man in the instant crime, to buttress the contention that defendant’s trial counsel was incompetent, is naive and unjustified. The State’s evidence against defendant Bunting, centering around his own admissions to witness Blakely and confession to the police, was without question very strong and convincing and would be difficult to overcome with any counsel, whatever his tactics.

We finally consider the contention that despite assertions of dissatisfaction with his court-appointed counsel, and despite assertions by counsel himself that he was unable to adequately represent defendant because they were at “cross purposes” as to proper conduct of the trial, the trial court perfunctorily denied defendant’s request for a change of counsel, and that this amounted to prejudicial error. Defendant relies on People v. Green, 42 Ill.2d 555, 248 N.E.2d 116, and United States v. Seale, 461 F.2d 345.

In Green the defendant requested a continuance on his second trial date for the purpose of being represented by privately retained counsel. In response to the judge’s inquiry, defendant said that the retained lawyer was in Washington and that the First Presbyterian Church had paid him. Without further inquiry or attempt at vertification the judge denied his request. The judge then ordered the appointment of a public defender, who had no opportunity to investigate the case. The Illinois Supreme Court reversed defendant’s conviction under those compelling circumstances. The Seale case is also factually dissimilar to the one under consideration in important respects. Suffice it to say that the relevant holding of the court in that case was that it was error for the trial judge to refuse to inquire of the defendant about his dissatisfaction with any counsel except one that happened to be hospitalized.

Neither of these cases compel us to find error in the present case. The defendant here requested a change of counsel after having been represented by appointed counsel for three months, after a lengthy hearing on the motion to suppress had been hqard and the motion denied, and after the court reluctantly granted the defense a final five-day continuance before the case went to trial. In response to the defendant’s objection to the lack of experience of counsel of record, the judge inquired into and was satisfied with his ability to proceed with the case. He nevertheless asked if defendant presently had another lawyer available, and inquired of his mother whether she had made any effort to secure one, whereupon she said she had not. Counsel’s own bald assertion of “cross purposes” between himself and the defendant is not supported by any evidence in the record and the judge properly, we feel, determined that none existed.

We feel the trial judge adequately discharged his duty of considering the merit of defendant’s request for a continuance to seek change of counsel. The record reflects that his decision to proceed to trial was based on his consideration of the untimeliness of defendant’s request, the competency of the appointed attorney, and the defendant’s failure to have contacted substitute counsel at that time. (Cf. People v. Tyson, 130 Ill.App.2d 140, 264 N.E.2d 403.) Under these circumstances we find no abuse of discretion.

For these reasons the judgment is affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Felton Peck, Jr., Defendant-Appellant.
    (No. 56828;
    First District (3rd Division)
    February 21, 1974.
    Charles W. Nixon, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant, Felton B. Peck, Jr., was indicted for murder (Ill. Rev. Stat. 1969, ch. 38, secs. 9—1(a) (1), (a) (2), (a) (3)). After a jury trial in the circuit court of Cook County he was found guilty as charged and sentenced to 100 to 150 years in the penitentiary. He appeals.

Four issues are presented for review. Defendant’s first contention is that the court erred in not suppressing an alleged confession where at the hearing in the motion to suppress defendant testified that police induced him to give a statement by threats and a promise of immunity and the prosecution presented no evidence to rebut such testimony. His second contention is that the court erred in refusing to quash an arrest warrant and suppress the fruits of an alleged unreasonable search and seizure. His third contention is that the court erred in refusing to hold a hearing on a motion to suppress a statement allegedly made at a coroner’s inquest without the benefit of Miranda warnings. Defendant’s fourth contention is that the sentence was excessive.

We reverse and remand.

The murder took place in the late evening of December 21, 1971, in apartment 304 at 3919 South Federal Street in Chicago. The deceased, Terry Tomalak, was a visitor. Mrs. Jacqueline Mack, who lived in the apartment, identified defendant at trial as the man who stabbed the deceased in the back with a kitchen knife. She further testified that she saw defendant and two other men beat the deceased before the stabbing took place. Mrs. Mack also identified defendant in a lineup at the police station either one or two days after the incident. Patsy Taylor, a cousin of Mrs. Mack, testified as to being present in the apartment during the killing and as to her observations of the circumstances of the beating and stabbing. She identified defendant in a lineup at the police station the day after the incident.

Officer Vaisvilas of the Chicago Police Department was the arresting officer who took defendant into custody. He testified that Jacqueline Mack and Patsy Taylor had given him descriptions of defendant. He further testified that he obtained an arrest warrant from Judge Casey at 5 A.M. on the second morning after the killing. He and other officers went to the apartment of Lee Buchannan, a cousin of defendant, at 4500 South State Street, apartment 1003. Defendant was found hiding next to the bed occupied by Buchannan. After the arrest, which was affected at about 5:30 A.M., defendant was taken to police headquarters where his shoes and trousers were inventoried and later sent to the crime lab as they appeared to be blood stained. Officer Vaisvilas testified that Officers Mannion and Tidmarsh interrogated defendant at the police station somewhere between 6 A.M. and the time of the lineup, which took place before noon.

Officer Mannion, who took a two-page typed statement from defendant at the police station, testified as to its contents at trial. The witness identified the trousers and boots which defendant wore the day he was arrested, and these exhibits were later introduced into evidence over defendant’s objection. The witness further testified that Officer Tidmarsh was present throughout the taking of defendant’s statement.

Officer Tidmarsh of the Chicago Police Department also testified that he was present during the taking of the statement. He gave further testimony as to its contents. At trial the statement was introduced into evidence over defendant’s objections that it was illegally taken and that it was the fruit of an illegal arrest.

Scientific testimony was given at the trial, relating to the cause of death, fingerprints on the kitchen knife which was recovered at the scene, and the blood type of the blood stains found on defendant’s clothes and on the knife. Dr. Edward Shalgos, a pathologist, testified that the deceased died from a loss of blood as a result of multiple stab wounds in the back of the chest. Officer Sloane of the Chicago Police Department testified that he dusted the kitchen knife for latent fingerprints but found none. The knife was later admitted into evidence. Officer Vitullo, a microanalyst with the Chicago Police Department Crime Laboraory, testified that the blood type of the blood stains found on defendant’s pants and from the butcher knife matched the deceased’s blood type, which was type “AB”. He further testified that approximately 3 to 4 percent of the population has this blood classification.

Defendant presented no evidence. The jury returned a verdict of guilty and sentence was imposed thereon.

Defendant’s first contention is that the trial court erred in admitting his confession into evidence. Defendant filed a pretrial motion to suppress the written statement he made to Officer Mannion in the presence of Officer Tidmarsh. Defendant alleged that any statement he gave was obtained in violation of his Miranda rights and, in addition, was the result of physical or mental coercion, and was, therefore, involuntary.

At the pretrial hearing, defendant was the only witness to testify. On direct examination he testified that when he was at the police station the police told him that he had a right to remain silent. He further testified that the police did not tell him that he had a right to have a lawyer present or that one would be supplied if he had no money. He further testified that when one of the officers started to take his typewritten statement, he was advised of his rights. Defendant admitted making some of the statements contained on the pages, but maintained that he did not know he had a right to a lawyer before he signed it. He further maintained that he asked to make a phone call but that his request was granted 2 hours later.

On his direct examination defendant also gave testimony relating to his claim of coercion. He testified that before he made the statement which was transcribed, one of the police officers threatened him and made jokes that he might die. He further testified that one of the police officers told him that if he cooperated with them, they would see that he would get “cut loose”. He further testified that he was pushed and shoved into signing the statement. He stated that the police showed him a piece of paper which purported to be signed by George Horton, and which they told defendant implicated him in the killing. He further testified that the police officer told him that if he would sign the statement he would be allowed to go home.

On brief cross-examination defendant testified that he was given his rights before he made the statement which was transcribed. The prosecutor did not cross-examine defendant concerning his testimony about the threats or the promises of leniency. After cross-examination was completed, the trial court interrogated defendant about the time at which he arrived at Lee Buchannans apartment before he was arrested. Without presenting any evidence rebutting defendant’s testimony, the prosecution moved that the motion to suppress be summarily denied on the basis that defendant introduced no facts to support the aUegations of his motion. The trial court denied the motion to suppress. It expressly found that as a whole defendant’s testimony was unworthy of belief because his answers to the court’s questions about the time of his arrival at the apartment were unsatisfactory.

Not considering the Miranda issue, we find that on the basis of the evidence adduced at the hearing concerning threats and promises of leniency the trial court erred in denying the motion to suppress.

The prosecution has designated defendant’s statement as a confession. We have examined the statement and find that it is generally incriminating. As such it should not be admitted into evidence if found to be not voluntary. (People v. Lefler, 38 Ill.2d 216, 230 N.E.2d 827.) A statement which is given in consideration of promises of leniency or immunity is not voluntary and not admissible in evidence. (People v. Martorano, 359 Ill. 258, 194 N.E. 505.) “The fact that the defendant had been fully apprised of his constitutional rights before making his statement is immaterial to the question of its voluntariness if he had been previously promised a reward for the giving of such a statement.” People v. Jones, 8 Ill.App.3d 849, 853, 291 N.E.2d 305, 308.

At the hearing on the motion the prosecution has the burden of going forward with the evidence and the burden of proving that the confession was voluntary. (Ill. Rev. Stat. 1969, ch. 38, sec. 114—11(d).) The order of proof at such hearing is largely within the discretion of the trial judge. It is only necessary that the prosecution make out a prima facie case that the confession was voluntary before defendant is required to present some evidence. People v. Strayhorn, 35 Ill.2d 41, 219 N.E.2d 517.

In the instant case defendant’s testimony about how he would be cut loose or allowed to go home was uncontroverted. Neither of the two police officers who were allegedly present during the taking of the written statement was called as a witness. It was improper for the trial court to disregard defendant’s uncontroverted testimony. (People v. Holick, 337 Ill. 333, 169 N.E. 169.) The trial court’s finding that defendant’s testimony was unworthy of belief was based on the witness’ uncertainty as to the time at which he arrived at Lee Buchannan’s apartment before he was arrested, an area of inquiry which, even assumedlywithin the scope of permissible examination, was nevertheless coUateral to the main issue of whether defendant’s confession was the result of police coercion. In any event, the prosecution did not sustain its burden of proof at the hearing on the issue of voluntariness. The prosecution argues that the error, if any, was harmless. We are not prepared to so find. (See Payne v. Arkansas, 356 U.S. 560, 2 L.Ed.2d 975, 78 S.Ct. 844. But see People v. Landgham, 122 Ill.App.2d 9, 257 N.E.2d 484, cert. denied, 402 U.S. 911; People v. Jenkins, 10 Ill.App.3d 588, 295 N.E.2d 123.) Our holding requires us to reverse the judgment and remand the cause for a new trial. See People v. Armstrong, 51 Ill.2d 471, 282 N.E.2d 712.

Because there will be a new trial we shall briefly discuss the context in which one of defendant’s remaining three contentions arose. After the prosecution had presented six witnesses during its case-in-chief defendant filed a written motion to quash the arrest warrant and to suppress the evidence which was the fruit of the alleged unreasonable search and seizure. The motion contended that new evidence concerning the arrest had emerged at trial that was not available to counsel before trial. In the motion, because much of the evidence sought to be suppressed had allegedly already been introduced at trial, defendant also requested a mistrial. The trial court denied this request for a mistrial, and denied the motion to quash the arrest warrant and suppress evidence.

In view of the fact that we are reversing the matter for a new trial defendant will have an opportunity to make a timely motion and the trial court will be able to conduct a full hearing on the motion to suppress the evidence. Accordingly, defendant’s conviction is reversed and the cause remanded for a new trial.

Judgment reversed and remanded.

McNAMARA, P. J., and MEJDA, J., concur.


author: Mr. JUSTICE DEMPSEY

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    The People of the State of Illinois, Plaintiff-Appellee, v. Pebby Saunders, Defendant-Appellant.
    (No. 57325;
    First District (3rd Division)
    February 21, 1974.

      James J. Doherty, Public Defender, of Chicago (Lebert D. Bastianoni and Michael Weininger, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Alan Brothers and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The defendant, Perry Saunders, was tried without a jury and found guilty of murdering David Watts and Dinard Watts. He was sentenced to the penitentiary to a term not less than 30 nor more than 90 years for each homicide. At his trial Saunders admitted killing the Watts brothers but pleaded self-defense. On appeal he contends that the State failed to prove beyond a reasonable doubt that he was not acting in self-defense, that evidence was improperly excluded concerning his state of mind, and that at the most he committed voluntary manslaughter, not murder.

The double killing occurred about 9 P.M. on August 26, 1971, in the apartment of Annie Long at 6314 South Ellis Avenue, Chicago. People gathered in the apartment during the afternoon and evening, drinking, playing cards and rolling dice. Saunders and the Watts brothers were among them. There had been an argument between Saunders and David Watts on August 4, 1971. Two days later Saunders was shot in the back and he suspected that one of the brothers had done the shooting. However, they drank and shot craps together on August 26 and there were no words between them.

In one of the dice games, James Rush told the other players that he was taking house cuts for Annie Long. David Watts argued about paying the cut and threatened to kill Rush. The argument was settled and the two men left the apartment and went around the corner to have a drink. Later, Saunders also left. He and James Rush returned to the apartment about 9 P.M., went into the kitchen and resumed their drinldng. Ten or fifteen minutes later, David and his brother returned.

Saunders testified that he was sitting on a stool in the kitchen when he heard some sounds in the hallway. He looked up and saw David and his brother coming down the hallway “kind of fast” and saw a gun in Davids hand. He said that he thought they were coming to kill him so he pulled a gun from his belt and started firing. David and Dinard Watts fell to the floor. Saunders kept firing until his gun was empty. He then reloaded and started for the front door. He said that as he was going out he saw David rise up; he shot him again, took the gun from David’s hand and went home.

The police went to his home that night and asked for him and Rush. Saunders’ wife said neither one was there. The police instructed her to tell her husband to get in touch with them. He did not do so. He and Rush were arrested the next day by two policemen who were riding in an unmarked squad car. They were charged with murder.

They were tried together. At the conclusion of the State’s evidence, the trial court granted Rush’s motion for a finding of not guilty. Rush was called as a defense witness. He testified that David Watts was armed. He said he saw David take a pistol from his pocket earlier in the day and that it was raised in his hand that night when he ran down the hallway toward the kitchen. Rush testified that he turned his back until the volley of shots was over. He said that Saunders re-loaded his gun; that David, who was on the floor, raised his, and Saunders shot him again. Rush said that Saunders took the gun from David’s hand, but he was not sure whether Saunders did this before or after shooting David a second time.

Joyce Griffin, Annie Long’s daughter, testified for the defendant. She said that as she was leaving the apartment about a quarter to 9, she saw David and Dinard Watts standing at the front door and heard Dinard say, “[G]et your gun man, get your gun out.”

Another defense witness was Evelyn Williams, who testified that she was playing cards when the shooting took place. She took refuge under the card table and when the shooting ended went out the back door. She said that as she passed David’s body, she saw a gun in his hand.

Rogers Hall was playing cards in the living room at the time Saunders and Rush, and David and Dinard Watts re-entered the apartment. He testified that the latter two said hello to everyone and were laughing and talking as they walked toward the kitchen. About the time they reached the kitchen, Hall heard rapid firing. He thought there were six shots, probably more. He and his fellow card-players went underneath the card table. When he got up, Saunders and Rush came into the room. He saw a pistol in Saunders’ hand and heard one of the men say, “[G]et out of here and .don’t say nothing.” Hall testified that Dinard’s body was in the hallway and no weapons were around it. David’s body was in the kitchen near the back door. There were no weapons near it. The only weapon Hall saw in the apartment that night was the one in Saunder’s hand.

A pathologist for the Coroner of Cook County examined the bodies. He testified that David’s body had five bullets in it, Dinard’s three. One bullet had entered the top of David’s head, one his back and another the side of his chest toward the back. A fourth bullet had entered his chest and a fifth had entered the chest and went sharply downward. Based on the paths of two of these bullets, the pathologist was of the opinion that the barrel of the gun that fired the shots was above the head of the victim.

During his testimony Saunders related that 22 days before he killed the Watts brothers he had a mild argument with David Watts in which David said he was lucky to be in the neighborhood, because if David did not want him around he would not be. His attorney asked him what he took this statement to mean. An objection was made and sustained. Two days after the argument he was shot twice in the back shoulder. Later he was present whén Dinard said to a third person, “You all think you’re smart. We done got one of them.” His attorney again asked what he took this to mean. In sustaining an objection the court said, “I will let what was said in, not what he’s thinking.” The exclusion of the defendant’s thoughts on these two occasions is claimed to be reversible error.

The case was tried without a jury, and tire court’s rulings are said to indicate that the court was not concerned with what the defendant thought and, therefore, would not consider his mental state at the time he shot the Watts brothers. This objection is farfetched. The crucial issue in a self-defense case is not what the accused may have thought 10 to 20 days before the homicide, but what was in his mind at that time. Saunders was permitted to testify freely about his thoughts, his fears and the reasons for them at the time the brothers were in the hallway. He said he saw a pistol in David’s hand, thought they were going to kill him or try to kill him, so he pulled out his gun and started firing. He said he fired the weapon because Dinard had told him one of them had shot him and he was scared one of them was going to kill him. He was permitted to relate prior incidents, quarrels and threats which were pertinent to his plea of self-defense. The exclusion of his mental impressions at the time the earlier statements were made to him or overheard by him, did not prejudice him and was not error. The disallowance of this testimony did not indicate that the court had closed its mind to the defendant’s pertinent testimony.

A person who kills a human being without lawful justification commits murder if he either intends or does great bodily harm to that person. (Ill. Rev. Stat. 1969, ch. 38, par. 9—1(1).) An intent to kill does not necessarily constitute an intent to murder; a person may intentionally kill if the killing is in self-defense, and not be guilty of murder. But the use of force intended or likely to cause death is justified only when the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or to prevent the commission of a forcible felony. Ill. Rev. Stat. 1969, ch. 38, par. 7—1.

Self-defense is an affirmative defense and, once it is raised by a defendant, the State must prove his guilt beyond a reasonable doubt on this issue as well as on the other elements of murder. (Ill. Rev. Stat. 1969, ch. 38, par. 7—14, par. 3—2(a), (b); People v. Johnson (1969), 112 Ill.App.2d 148, 251 N.E.2d 393.) Whether a killing is justified under the law of self-defense is a question of fact to be determined by the judge or jury that tries the case. After the trier of fact has made its finding, this court will not set it aside unless it is palpably contrary to the evidence, or if the State’s evidence is so unsatisfactory that it raises a reasonable doubt of the defendant’s guilt. People v. Brooks (1964), 52 Ill.App.2d 473, 202 N.E.2d 265.

The State’s evidence was sufficient to sustain the trial court’s finding that Saunders committed two murders. It was the court’s responsibility to determine the credibility of the witnesses and the weight to be given their testimony. The court did not have to believe Saunders and those witnesses who said David Watts was armed with a gun. While it was not necessary for him to have been armed to support Saunders’ plea of self-defense, the testimonial conflict about the gun and the lack of any physical evidence concerning it, reflects upon the credibility of those who said he had one.

The gun was never produced nor its absence explained. Saunders said he took it with him when he left the apartment. His witness, Evelyn Williams, who never told the police that she had been in the apartment, testified that when the shooting ended she walked into the kitchen and saw the gun in Watts’ hand. Saunders’ friend, James Rush, who admitted lying to the police, testified that Dinard Watts, whom no one accused of being armed, came down the hall first. He was shot in the ribs, arm and neck and fell in the hallway. Yet his brother David, who was behind him and supposedly out to get Saunders with a gun raised to shoot, did not fire a shot in defense of his brother. In fact, no shots were alleged to have been fired from that gun although the defendant and two witnesses said it was in his hand.

Although Saunders may have had prior trouble with the Watts brothers, he had none the day of the shooting. He had seen them almost every day after the trouble. There were no attempts to harm him during those encounters. The evidence shows no reason why he should have believed he was in danger the day they died. He and they gambled together and drank together before he killed them. One had threatened Rush, but neither had threatened him. They were friendly and jovial seconds before they met their deaths.

There was evidence that tended to prove that Saunders’ action was calculated and deliberate. He did not stay in the apartment or call the police. He did not report the shooting to them. He did not communicate with them when word was left for him to do so. He fled from the scene and had to be apprehended. Upon his arrest, he did not tell the police the story he related in the courtroom. He not only said nothing about having shot David and Dinard Watts, but denied knowing what happened in the apartment.

A .38 caliber revolver was on the front seat of the auto Saunders was driving at the time of his arrest. Ten discharged bullets were found in the kitchen and in the bodies of the victims. Six empty casings were also recovered. It was stipulated that all were fired from the revolver found in the auto.

Saunders admitted that he shot six times, removed the six spent shells, reloaded his revolver and fired some more. These were not the actions of a man who shoots just to protect himself. That his killings were without lawful justification is further shown by the way he shot David Watts: in the back, near the back and through the top of his head.

The court was fully justified in discounting the testimony of Saunders and his witnesses. From the evidence the court could have believed that Saunders sought revenge against the brothers, armed himself for this purpose, sat in the kitchen waiting for them to come in and killed them in cold blood.

The contention that the killings were at most voluntary man-slaughters is untenable. A defendant is guilty of voluntary manslaughter if, in taking an individual’s life, he believes he is in danger of losing his own life or suffering great bodily harm, but his belief is unreasonable. (Ill. Rev. Stat. 1969, ch. 38, par. 9—2(b); People v. Lockett (1967), 85 Ill.App.2d 410, 229 N.E.2d 386.) Implicit in the trial court’s decision that Saunders was guilty of murder was the finding that his life was not in danger and that he did not believe it was.

The judgment is affirmed.

Affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


text:
    Anthony Filosa et al., Plaintiffs-Appellants, v. Carlo Pecora et al., Defendants-Appellees. Michael J. Lowy et al., Intervening-Plaintiffs-Appellees, v. Anthony Filosa et al., Defendants-Appellants.
    (Nos. 58374, 58445 cons.;
    First District (3rd Division)
    February 21, 1974.

      Dennis M. O’Brien, of Schippers, Betar, Lamendella & O’Brien, of Chicago, for appellants.

      Gordon & Brustin, Ltd., of Chicago (Robert E. Gordon, of counsel), for appellees.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

This is an appeal from an order which vacated a consent decree. The order was entered pursuant to a petition filed under section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, sec. 72).

In August 1971, six neighbors: Anthony Filosa, Angelo Morelli, Willis M. Hoffbeck, Martin D. Calis, Paul Pennick and Joseph Graber, entered into a contract with the defendant, Carlo Pécora, to buy a parcel of unimproved land, approximately 600 feet long and 100 feet wide, which bordered on the rear of their six homes. The contract, which was not recorded, provided for Pécora to convey the purchased land in separate deeds and that each deed would be contiguous with the lot of each of the six neighbors.

In September 1971, Pécora contracted to sell a larger tract of land, including the 600-by-100-foot strip, to two real estate developers, Michael J. Lowy and John A. Canna, who intended to construct several condominium apartment buildings on the property.

When Pécora failed to convey the realty they had purchased, Filosa, Morelli, Hoffbeck and Calis sued him for specific performance. Pennick and Graber chose not to. join in the litigation.

Pécora answered the complaint and Lowy and Canna intervened. Pécora charged that the time limit for the completion of the plaintiffs’ purchase had expired and that the required earnest money had not been deposited. The intervenors alleged that the plaintiffs’ contract was invalid and that they did not learn of the contract until their petition to rezone the entire tract of land from a single-family residence district to one which would permit a condominium development was about to be heard by the Zoning Board of Appeals of Cook County. The plaintiffs denied Pécoras affirmative defenses and the intervenors’ allegations.

During the trial on the issues, settlement negotiations were held between the attorney for the plaintiffs and the attorney who represented Pécora, Lowy and Canna. Under the aegis, of the court, an agreement to settle the dispute was reached, subject to its being reduced to writing. Both attorneys participated in the drafting of the agreement. Each prepared a draft, exchanged it with the other attorney, and each made comments and suggestions on the other’s draft. The final agreement, drawn by the plaintiffs’ counsel, included the suggestions of the defendant’s and intervenors’ counsel.

The final settlement provided that the 600-foot strip of land would be narrowed from 100 to 25 feet and that the four plaintiffs and Pennick and Graber would receive individual deeds for 25 feet behind each of their homes and that the six of them would receive $6,000 in damages. The agreement further provided that in the event the intervenors failed to apply for building permits within 120 days after the rezoning of the property was obtained, the 600 x 100-foot parcel would pass to the plaintiffs and their two neighbors for their contracted purchase price subject only to current real estate taxes. A consent decree incorporating the terms of the agreement was entered on May 9, 1972.

For various reasons, including the hospitalization of Pécora, the intervenors’ counsel did not show the consent decree to Pécora or the intervenors until the first week of June. They protested that building permits could not be obtained within 120 days of the rezoning. On June 9, 1972, their attorney filed a motion to vacate or modify the decree. On July llfh he filed a petition under section 72 of the Civil Practice Act to vacate the order of May 9. He also filed an amended complaint and an amended section 72 petition naming Pennick and Graber as defendants. The petition was continued several times and compromises were discussed, but none was agreed upon.

The section 72 petition asserted that there was fraud in the procurement of the consent decree and that it was void because it disposed of the rights of Pennick and Graber over whom tire court had no jurisdiction. The petition was granted and the decree was vacated.

The facts concerning the preparation and presentation of the decree do not support the intervenors’ charge that it was procured by fraud. The gist of the charge was that the plaintiffs did not honor an oral understanding to modify the time restriction for the obtaining of the building permits; that the 120-day limitation was unreasonable and unconscionable; that it proved to be unsatisfactory to the intervenors who needed 240 days because of the time-consuming prerequisites to the acquisition of building permits such as soil testing and securing environmental control permits. The petition alleged that the attorney for fire intervenors only glanced cursorily at the decree and relied upon the representation of the plaintiffs’ attorney to amend the restriction if the intervenors so desired. In seeming contradiction, the petition also declared that the “settlement agreement was the entire terms agreed on between the parties.”

The plaintiffs’ answer denied any understanding to modify the decree. The plaintiffs stated that the final written agreement was the joint effort of both attorneys, and that their attorney advised opposing counsel that he had no authority to change the terms of the written agreement without the approval of all his clients. Exhibits were attached to their answer which substantiated their contentions. One exhibit proved that the original time limitation was 60 days and that it was increased to 120 days at the suggestion of the interveners’ counsel. Another showed the interpolations made by him in the drafts of the agreement, and the order which dismissed the case was in his handwriting. The order stated that the dismissal was “on stipulation of the parties through their respective attorneys” and was “with prejudice to all the parties as said matter has been settled.”

A consent decree is based upon the agreement of the parties. It may supersede both pleadings and evidence and even go to the extent of pointing out and limiting the relief to be granted. Such a decree is conclusive upon the parties and cannot be amended or varied without the consent of each of them. (People ex rel. Stead v. Spring Lake Drainage & Levee District (1912), 253 Ill. 479, 97 N.E. 1042.) A consent decree reflects the determination of the parties to end their controversy. It is like a written contract and should be enforced as written. City of Kankakee v. Lang (1944), 323 Ill.App. 14, 54 N.E.2d 605.

A written contract cannot be set aside on the ground that it is fraudulent where the alleged fraudulent provision appears on the face of the contract so that it was equally open to the knowledge of both parties, or where the party charged with the fraud neither urged its acceptance upon the other nor misled or induced the other to accept and execute it by any statement or misrepresentation as to its meaning or legal effect. (Paine v. Doughty (1911), 251 Ill. 396, 96 N.E. 212.) Likewise, a court will not vacate a consent decree without a showing of fraudulent misrepresentation or coercion in the making of the agreement, or the incompetence of a contracting party or gross disparity in the position or capacity of the parties. Guyton v. Guyton (1959), 17 Ill.2d 439, 161 N.E.2d 832; Jackson v. Ferolo (1972), 4 Ill.App.3d 1011, 283 N.E.2d 247.

The interveners’ aHegation of fraud is unsubstantiated and untenable. They would have us believe that an important right to amend the terms of the consent decree was left out of the agreement and embodied in a gentlemen’s understanding between counsel. Yet their attorney assured the trial court that the agreement as written constituted the entire agreement between the parties. The interveners are bound by the written agreement and the representation made to the court by their attorney.

The purpose of a petition filed under section 72 of the Civil Practice Act is to obtain relief from final orders, judgments and decrees. (Ill. Rev. Stat. 1969, ch. 110, par. 72(1).) The petition must be filed no later than two years after the entry of the decree (sec. 72(3)) and is available to correct errors appearing upon the face of the record or to bring before the court facts not appearing in the record which could not reasonably have been disclosed at or prior to the time the decree was entered and which, if known to the court at the time the decree was entered, would have prevented its entry. Decrees are not set aside simply because a party adversely affected by the decree comes into court and boldly asserts that it was premised on false facts. (Bennett v. Gollant (1970), 127 Ill.App.2d 224, 262 N.E.2d 34.) Section 72 was not intended to relieve a party of the consequences of his own mistake or carelessness. The burden is on the petitioner to allege and prove the facts justifying relief, and he must show that through no fault or negligence of his own, the error of fact was not made known to the trial court. (Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294.) The interveners’ petition gave no reasonable explanation why the time allegedly required to obtain building permits could not have been known to them while the agreement was being prepared or when it and the decree were presented to the court. Long negotiations, during which there was ample time for attorneys to talk to clients and for clients to talk to others, preceded the decree. If the 120-day limitation proved too restrictive, the intervenors have only themselves to blame. Their petition did not establish a basis for relief and it should have been denied.

• 7, 8 The argument is made that the consent decree was void because it disposed of the property rights of Pennick and Graber who were not parties to the suit. A decree is void if the court lacked jurisdiction over either the subject matter or the parties to a suit, and a void decree may be attacked directly or collaterally at any time in any court. (Escue v. Nichols (1948), 335 Ill.App. 244, 81 N.E.2d 652.) With exceptions not pertinent here, it is the general rule that the interests of parties not before the court are not bound by a decree. But because the decree may be void as to Pennick and Graber does not mean that it is void in its entirety. There is no claim that the court did not have jurisdiction over the subject matter of the suit and of all the parties named as defendants. If parts of a decree are clearly separable, only that part which is in excess of the authority of the court is void and the rest of the decree is valid. Chapman, Mazza, Aiello, Inc. v. Ace Lumber and Construction Co. (1967), 83 Ill.App.2d 320, 227 N.E.2d 562.

The contract with Pécora called for the 600' x 100' parcel of land to be conveyed to the six neighbors in six separate deeds. Each buyer was to receive a deed for the land contiguous to his own property and would be required to pay the real estate tax only on that portion of the land which he received. There was no joint interest in the tract of land as a whole. The determination of whether a contract is joint or several or joint and several is made by considering the intentions of the parties as revealed by the language of the contract and the subject matter to which it relates. (Annot, 122 A.L.R. 1336 (1939).) Contracts will be construed to be joint or several as the case may be, where the intent of the respective parties appears on the face of such obligations, and that construction will be adopted which is most consistent with the words employed to express the undertaking of the several parties. Combs v. Steele (1875), 80 Ill. 101.

In Combs, adjacent neighbors contracted to pay for street paving in front of their homes by the foot and wrote next to their names in the contract the number of feet at the front of their respective property. The court found that each neighbor thereby agreed to pay for a definite number of feet of paving and held that the contract was several. In Corrington v. Pierce (1888), 28 Ill.App. 211, two neighbors contracted with a third landowner to settle a boundary dispute by having a surveyor survey their land. One neighbor breached the agreement. The court held that the other neighbor’s obligations under the contract were not affected; that the neighbors had no joint interest in the boundary line and their obligations under the contract were separate and distinct.

The contract between Pécora and the six neighbors was several and each of the neighbors could-enforce his interest separately. When Pecora did not comply with the contract, four of the six sued him for specific performance. The decision of Pennick and Graber not to enforce the contract as to their portions of the land did not affect the right of the others to complete their purchase.

While Pennick and Graber were not necessary to an adjudication of the plaintiffs’ rights under the contract, it would have been well if they had been named as defendants. The failure of the plaintiffs to so name them, however, did not vitiate the plaintiffs’ right to relief. Moreover, their interests were protected by the plaintiffs. The decree provided that they, as well as the plaintiffs, were to receive deeds to that portion of the disputed land contiguous to their property and that, in addition, each one would receive $1,000.

Although Pennick and Graber had been unwilling to participate in the effort to obtain their share of the land, after the decree was entered they notified the intervenors that they did not consider themselves bound by the decree. The intervenors, to avoid any cloud on their tide, thereupon amended the intervening complaint and the section 72 petition and made them party defendants. What contractual right they may have to the land behind their homes must be determined between them and the intervenors.

The court had jurisdiction of the plaintiffs and their interests under the Pecora contract. The parts of the decree affecting diem are separable from the parts affecting Pennick and Graber. The decree is not void as to the plaintiffs; they have a valid and binding contract with the interveners, confirmed by the consent decree. They may pursue the remedies stated in the decree.

The order vacating the consent decree is reversed.

Reversed.

McNAMARA, P. J., and McGLOON, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Bell, Defendant-Appellant.
    (No. 58437;
    First District (3rd Division,)
    February 21, 1974.

      MEJDA, J., took no part.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Lewis, Defendant-Appellant.
    (No. 58668;
    First District (3rd Division)
    February 21, 1974.

      DEMPSEY, J., took no part.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago, for appellant.

Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Thomas A. Manet, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Elmore Jordan, Defendant-Appellant.
    (No. 58104;
    First District (5th Division)
    February 22, 1974.

      James J. Doherty, Public Defender, of Chicago (John M. Kalnins, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis. and Roger Horwitz, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was found guilty of rape and armed robbery and sentenced to a term of 20 to 60 years for rape and 10 to 30 years for armed robbery, tire sentences to run concurrently.

On appeal defendant contends that he was denied a fair trial by the introduction into evidence of testimony that defendant committed unrelated rapes and other misconduct, that he was deprived of due process when tire prosecution filed a false answer to defendant’s discovery motion, that he was denied a fair sentencing hearing, and that his sentence was excessive.

At trial, Leona Franklin, the complaining witness, testified that at approximately 2:15 P.M., on February 3, 1971, she was at home, when she saw a man, later identified as defendant, with a scarf covering his face, standing in the doorway of her living room, holding a knife to her daughter’s throat. After threatening to kill the child, he grabbed Mrs. Franklin by the neck and then held the knife to her neck. He then forced her into the kitchen. He took twelve or thirteen dollars from her. He tied the hands of each and, after blindfolding, her, he forced her into the bedroom where he raped her. During intercourse, the blindfold slipped off, allowing her to see defendant, who had removed the scarf covering his face. Defendant said, "You saw my face, turn over, I’m going to tie you back up again.” A two minute struggle ensued, during which she observed defendant’s face from a distance of eight to ten inches. The bedroom drapes were open, and light was coming into the room through the window which was at the head of the bed. She escaped to the kitchen where she again observed defendant, this time from approximately ten feet while he was getting dressed. She called the police and gave them a description.

On February 19, 1971, she recognized defendant as she walked by him on the street. When she asked a passerby to call the police, defendant ran away. He had a scar on the left side of his face. On June 4, 1971, she noticed a squad car parked in front of her house and observed defendant sitting in the back seat. She said, “That is him”; whereupon, defendant jumped out and ran. Later that day she went to the police station and identified defendant in a lineup. Subsequently, she saw defendant twice at her back yard fence, and on each occasion he made faces at her, rolled his eyes and started laughing.

Charles Brown, a police officer, testified that on June 4, 1971, he and his partner were working on a “rape crime pattern” and pursuant to a description they arrested defendant. While transporting the defendant to the police station, he decided to stop at the home of “one of the victims” to notify her to come to the station to view a lineup.

Defendant testified that he was never in the complaining witness’ house and that he could not recall his whereabouts on February 3, 1971. On cross-examination, he denied telling the police that he worked at Switchcraft on February 3, 1971.

Officer Brown, recalled in rebuttal, testified he was present while defendant was being questioned and he heard him say that he was at work at Switchcraft on February 3, 1971. He prepared a police report but did not include any reference to defendant’s statement that he was at work at the time of the alleged offense.

A stipulation was entered that if Dr. Weinberg were called to testify, he would testify that an examination of the complaining witness on February 3, 1971, disclosed large amounts of spermatozoa.

Prior to trial, both the prosecution and the defense filed motions for discovery. Defendant’s motion requested the production of any written or oral statements made by him. The prosecution answered that defendant had made no statements.

OPINION

I.

Defendant’s first contention on appeal is that prejudicial evidence was admitted at trial which implied that he was connected with other crimes.

He argues that Officer Brown’s testimony that he was working on a rape crime pattern, and that after the arrest he stopped at the home of one of the victims, was evidence admitted under the guise of showing an arrest which implied that defendant allegedly committed a number of rapes. It is his contention that such testimony was sufficiently prejudicial to constitute reversible error. Defendant further points out that the subject of the rape crime pattern was first brought out during the motions to suppress the identification and to quash the arrest so that the State knew Officer Brown would reply that “we were working on a rape crime pattern” when asked, “At that time did you have any specific assignment that you were working on?”

The State contends that this testimony, taken as a whole, had a high probative value tending to show the arrest of defendant pursuant to an accurate description furnished by the complaining witness and that the crime pattern statement in no way implicates defendant in any offense other than that for which he was on trial.

The general rule is that evidence of the commission of other crimes by an accused is inadmissible unless it is relevant to establish identity, intent, knowledge, motive, a common scheme or design or a fact material to the issue on trial. (People v. Scott, 100 Ill.App.2d 473, 478, 241 N.E.2d 579.) Although the State argues that Officer Browns testimony as to the “rape crime pattern” was important to show that the arrest of defendant was made pursuant to the complaining witness’ description, we are of the opinion that the statements made by Officer Brown do not fall within any of the recognized exceptions to the rule excluding evidence of other crimes.

Although defendant argues this testimony may have induced the jurors to believe that defendant had been involved in other crimes, the ultimate question we must decide is whether this testimony so prejudiced the rights of defendant that he did not receive a fair trial.

Here defendant claims he was never in the complaining witness’ apartment, making it necessary for the State to prove all the elements of the crime beyond a reasonable doubt. It appears clear that defendant was viewed by the complaining witness (1) for two minutes during the occurrence, under good lighting conditions; (2) as she walked by him on the street; (3) in front of her apartment while he was sitting in the squad car; and (4) at the lineup. In addition, she gave an accurate and detailed description which aided the police in arresting the defendant. When the competent evidence shows beyond all reasonable doubt that a defendant is guilty, an error in the admission of the evidence of other offenses does not call for reversal, when as here the jury could not have reasonably found the defendant not guilty. People v. Allen, 1 Ill.App.3d 197, 272 N.E.2d 296.

Defendant further argues that the trial court erred in admitting testimony that he made faces, rolled his eyes, and laughed at the complaining witness subsequent to his arrest. He contends that this evidence had little, if any, probative value and thus was highly prejudicial to his case. Although it may have been error to admit this testimony, we believe its admission was harmless error in view of the overwhelming evidence of guilt. People v. Scott, 52 Ill.2d 432, 288 N.E.2d 478.

II.

Defendant next contends he was deprived of due process and of his right against self-incrimination when the State filed false answer to his discovery motion which requested, among other things, any written or recorded statements and the substance of any oral statements made by the accused. The State answered that no statements were made by the accused. Prior thereto, in response to the State’s motion for discovery, defendant had answered that he would assert an alibi defense.

At trial, the defendant stated that he was never in the complaining witness’ apartment and that he could not recall where he was on February 3, 1971, the date of the alleged raped. On cross-examination, he stated that he was not employed on that date and that he did not tell the police that he worked at Switchcraft on February 3, 1971.

Officer Brown testified, in rebuttal, that he was present during the questioning of the defendant and the record discloses that the following colloquy took place:

“PROSECUTOR: Was the defendant asked as to his whereabouts on February 3rd of 1971?
WITNESS: Yes, he was.
PROSECUTOR: Did he give a reply?
WITNESS: Yes.
PROSECUTOR: Would you indicate to the ladies and gentlemen of the jury what he stated?
WITNESS: He stated that at that time—He says, ‘Oh, I was at work.’
PROSECUTOR: Did he indicate where he worked?
WITNESS: Yes. He stated ‘Switchcraft.’
PROSECUTOR: Did he state whether he worked there on February 3rd or not?
WITNESS: He stated that at the time he allegedly was accused of doing something, he was at work. He says, ‘I was at work at that time.’
PROSECUTOR: What hours did the defendant work? What hours did the defendant say he worked?
MR. WHITNEY (Defense Counsel): Objection, Judge. I think there was no question that he asked him what hours he worked.
THE COURT: The objection is sustained. Unless you can further bring it out in further conversation, stick with this point now.
PROSECUTOR: Did the defendant say anything about the hours he worked or what hours he worked?
WITNESS: No, he didn’t give us his hours.”

On cross-examination, Officer Brown admitted that he had prepared a police report, but that he did not include defendant’s statement that he had been at work at the time of the alleged rape.

Defendant urges that the State’s conduct was highly prejudicial and constituted a violation of due process.

The State contends that it was not shown that the statement was intentionally withheld and that defendant waived this issue by not objecting at trial and by not raising tire issue in his motion for a new trial. In People v. Killebrew, 55 Ill.2d 337, 341, 303 N.E.2d 377, the court stated:

“‘Objections to evidence may be waived by failure to interpose proper objections in apt time, even though based upon constitutional grounds.

A ground of objection not presented in the trial court will ordinarily not be considered on review. People v. Canaday, 49 Ill.2d 416, 275 N.E.2d 356.

In the case at bar, defendant objected only to a question asked of Officer Brown which concerned defendant’s hours of work, and as ground therefor defendant’s attorney stated, “I think there was no question that he asked him what hours he worked.” No objections were made to any other questions asked of Brown, including those concerning defendant’s statement that he was working at Switchcraft, nor was any motion made to strike the testimony given. Objections to evidence may be waived by failure to interpose proper objections in apt time even though based upon constitutional grounds. (People v. Trefonas, 9 Ill.2d 92, 136 N.E.2d 817.) The rationale for this rule is found in the need for resolution of evidentiary questions at the time of trial. It is significant here that defendant does not raise a reasonable doubt argument, and that the statement was used in rebuttal. Neither does defendant contend the State (1) knew it would be his testimony that he did not know where he was on the day of the offense; or (2) that he had made the statement to Brown. Under these circumstances, we believe that the statement was not plain error which affected defendant’s substantial rights. People v. Killebrew, supra.

III.

Defendant finally maintains he was denied a fair sentencing hearing, and that his 20-to-60-year sentence for rape is excessive. We believe that testimony of a preliminary offer by tire State of a lesser sentence was properly refused by the trial court and, from our further examination of the record, we are of the opinion that a proper hearing in aggravation and mitigation was conducted. It does not appear that the trial judge was aware of any plea bargaining offer by the State, so that any disparity between the alleged offer and the sentence imposed could not, as contended by defendant, be an indication of punishment for taking a jury trial. People v. Blakely, 7 Ill.App.3d 1012, 289 N.E.2d 269, cited by defendant, stands for the principle that, under the circumstances there, the imposition of three consecutive rather than concurrent sentences was an abuse of discretion. Here concurrent sentences were imposed.

The imposition of a sentence is peculiarly within the discretion of the trial court, and unless clearly abused a reviewing court will not interfere therewith. (People v. Williams, 130 Ill.App.2d 192, 199, 264 N.E.2d 589.) In the instant case, defendant raped and robbed the complaining witness in her apartment. In addition, he held a knife to the throat of the young daughter and threatened to kill her, and then grabbed the complaining witness and held a knife to her neck before committing the crimes. Considering the violent nature of these offenses, we are unable to say that the trial court clearly abused its discretion in sentencing the defendant to a term of 20 to 60 years for rape.

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

Affirmed.

DRUCKER and LORENZ, JJ., concur.