author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES BROWN, Defendant-Appellant.
    First District (6th Division)
    No. 1—86—3448
    Opinion filed June 8, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Julia M. Gentile, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Paul Gliatta, and Catherine Bernard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

After a bench trial the defendant, James Brown, was convicted of attempted murder, aggravated battery and aggravated battery of a child. The convictions were based on acts committed by the defendant against Natasha Gibbs (Natasha) beginning in November 1984 and continuing through January 1985. The judge merged the aggravated battery convictions with the attempted murder conviction and, after finding the defendant eligible for an extended-term sentence, sentenced the defendant to 60 years’ imprisonment and to three years’ mandatory supervised release.

The defendant first contends that the evidence does not establish the element of intent to kill necessary to sustain a conviction of attempted murder. A comparatively detailed recitation of the evidence is required.

The defendant was almost 26 years old; he was six feet five inches tall; he was unemployed. Victoria Gibbs (Gibbs), the victim’s mother, was approximately 24 or 25 years old; she was five feet one inch tall and weighed 89 pounds.

The defendant first met Victoria Gibbs in 1983. She and her three children, Latoya, Anthony and Natasha, moved into the apartment of his friends at 1121 South Mozart in Chicago. The defendant lived with her. Also living in the apartment were Lily Brawner and her boyfriend, Wilbur Page, Jr.; Lily’s two sons, Laverick and Walter Brawner, and Walter’s girlfriend, Shirley McLaurin.

The defendant, Gibbs and her children occupied one bedroom in the back of the apartment. She and the defendant shared a bed while the children slept on a mattress on the floor of their bedroom. They ate in the bedroom.

In November 1984 the Gibbs children were all strong and healthy. However, Gibbs, who was five months pregnant, suffered from morning sickness and anemia. Latoya was five years old; Anthony was 2k years old; Natasha was approximately 16 months old.

The defendant called himself the “boss” and “ran everything” within the household. He disciplined and punished the children and beat them for wetting their clothes. He used to force Latoya and Anthony to stand in opposite corners of the room on one foot from one-half hour to two hours at a time. He would hit Latoya but not as hard as he hit Anthony. He would whip Anthony with a belt whenever Anthony was unable to stand on one foot for the required length of time. He would strike Anthony with his fist and hit him in the chest as hard as he could; Anthony would fall back onto the dresser. The defendant would also whip Anthony with his belt and strike him on the head with it.

Walter Brawner testified that the defendant beat Gibbs and the children all the time, he beat Gibbs every day. He slapped her and hit her in the eye and mouth with both his fists and open hand. He left hand prints on her face and bruises on her back. He would jump on her even though she was pregnant and tried to make her stand in the corner like the children. On another occasion he tied her hands behind her back and struck her repeatedly in the face with a wire clothes hanger.

The defendant insisted on feeding Natasha. Although Gibbs fed Latoya and Anthony, the defendant would not let her feed Natasha; he beat Gibbs when she did feed Natasha. Because Natasha would not eat all the time, he force-fed her. He would grab Natasha off the floor, throw her down, place his left hand on the top of her head, yank her head back, put the food on the spoon and then, while her head was back, force her to eat. When Natasha would not eat, the defendant ' would get angry and throw her down; Natasha would cry or just lie there. He fed her in this manner each day.

Laverick Brawner testified that the defendant would put his hand on the top of Natasha’s head and bend it approximately to her back. While her head was still back, he would take the hand that he placed on top of her head and place it underneath her jaw. Then he would place his hand on either side of her checks and squeeze, causing her lips to purse. He would take a large spoon of food and put it inside her mouth. If she spit out the food, the defendant would slap her with an open hand across the face and knock her down. She would get up, and the defendant would try again, using the same method. He whipped Natasha with a belt on her arms and legs whenever she would spit out the food. After each whipping, he would try to feed her more. When she started to cry, the defendant threw her down on the mattress on the floor in their bedroom and closed the door.

He also assumed the responsibility for Natasha’s toilet training. He grabbed her every morning, threw her down on the training toilet in the bedroom and told her she should not move. When she would try to get up, he would tie her to the training toilet. He tied her hands to the arms of the toilet chair with an extension cord; he used a belt around her waist so that she could be tied down completely; and he tied both her feet together with wire or shoestrings so that she was unable to get up. He made her sit there for an hour or two; he would just let her sit there and cry. If she tried to get up, he struck her repeatedly with his hand across her face and back. On one occasion he struck her in the face with a wet towel two or three times.

From November 1984 until January 1985, he tossed Natasha into the air several times a day. At times her head would actually hit the ceiling. He would either catch her on descent or he would allow her to fall to the mattress on the floor. On one occasion, Shirley McLaurin saw the defendant throw Natasha up to the ceiling a couple of times; Natasha’s head hit the ceiling twice. Then the defendant shook her violently so that her head and feet were jerked backward and forward. On another occasion, Laverick Brawner saw the defendant throw Natasha up three or four times and heard her head hit the ceiling each time. The defendant caught her every time except the last time when he allowed her to fall, face first, to the mattress on the floor.

He also whipped Natasha’s legs and arms with a belt. According to Shirley McLaurin, Natasha did not act right after the defendant started whipping her. On one occasion about two weeks after the defendant and Gibbs moved in, the defendant struck Natasha in the face with an open hand two or three times, causing her to fall to the floor. Then the defendant walked away as she lay crying on the floor. On another occasion in late December or early January, the defendant whipped her with a belt, striking her any place the belt would land. On two or three occasions, the defendant hit Natasha across the face with the end of the belt.

Whenever Gibbs objected to the defendant’s treatment of Natasha, he threatened her and knocked her around. He hit her every time she attempted to feed Natasha or to untie her from the training toilet.

By January 1985, Natasha was in a weakened condition. She could neither stand nor walk without holding onto the walls. When she first came to the Mozart apartment, she was a healthy baby. She smiled and laughed all the time; she was playful; she walked and talked and ate normally; however, she did not act right after the defendant started whipping her. In January 1985 she would not talk, play, smile or laugh; she would not eat well. About the last week before her hospitalization her face began to twitch involuntarily.

On January 20, 1985, Walter saw the defendant throw Natasha into the air; Natasha struck her head on the ceiling with such force that “everything was bunched up.” She looked like she was hurting. On one of the occasions that the defendant threw Natasha into the air, he allowed her to fall from the ceiling to the wooden floor 10 feet below.

After being force-fed, Natasha went limp and she could not sit up right; she could not support herself; she would not even cry. The defendant responded by shaking her violently above the shoulders; her head went all the way back, back and forth. She was weak and began changing colors; she was gasping for breath.

On January 23, 1985, the defendant again force-fed Natasha and tied her to the training toilet. On January 24, Natasha stopped breathing. Gibbs telephoned the paramedics, and the defendant attempted to revive Natasha. He brought her into the bathroom, where he threw water on her, slapped her face, pressed down on her chest and attempted to give her artificial respiration. Gibbs called for-medical assistance, and paramedics took Natasha to Mt. Sinai Hospital.

Before the paramedics arrived, the defendant instructed Gibbs to tell the doctors that her son, Anthony, had jumped on Natasha. At the hospital he again told her to tell the doctors that Anthony had jumped on Natasha. He threatened to harm Gibbs and her children if she did not follow his instructions. He also told the other persons who lived in the apartment either to deny knowing the cause of Natasha’s injuries or to say that Anthony jumped off the bed onto Natasha.

On January 25 Natasha was transferred to Rush-Presbyterian-St. Luke’s Hospital. She was diagnosed as suffering from a functional severing of the spinal cord which resulted from a severe bruising, contusion and swelling of the cord. She was deprived of all muscle control below the neck, including a complete loss of the muscles needed for respiration. The bruising and swelling of her brain stem severely damaged the modulation of other important functions such as blood pressure, heart performance and temperature. Medical testimony established that the injury occurred less than two weeks before her hospitalization and that it could have been caused by throwing her into the air so that she hit the ceiling or by forcefully throwing her head backwards by force-feeding. In the opinion of the expert, a two- or three-year-old child could not have caused the injury by jumping onto Natasha’s back.

Natasha also suffered from a fracture of her spine between the fourth and fifth vertebrae which were located in her mid-back. Had there been no spinal cord injury, the most severe consequences of the fractured vertebrae would have been complete paralysis of the upper and lower extremities and most of the trunk muscles; however, respiratory damage would probably have been avoided. The injury to the vertebrae could have been caused by a fall from a height of six feet or more and would have limited Natasha’s ability to walk.

She also suffered a fracture of the clavicle or collar bone. That injury was two to four weeks old at the time of her hospitalization, and it would have temporarily limited her mobility. It could have resulted only from a very direct and forceful blow to the bone. It could have been caused by a fall onto a fairly firm surface from a height of six feet or more, but it could not have occurred by one child falling on her back.

As a result of the injuries, Natasha required very “aggressive and heroic” therapy to save her life. At every moment during the first 48 hours, it was far more likely that Natasha would not survive.

It was established that she will never breathe without support and will, most likely, require 24-hour nursing care. At the time of the trial she could eat only soft foods, creamy soups and liquids. She could blink her eyes, talk, swallow, wrinkle her nose and move her head from side to side. But if her head fell forward or to the side completely, she could not bring it back; rolled-up baby blankets helped to keep her head in place. She had no control over her bladder or bowels, and her trachea needed to be suctioned at least every three hours.

Over the defendant’s objection, the judge permitted evidence of acts committed by the defendant against other children. From November 1978 through June 11, 1979, Cheryl Caruth lived with the defendant along with her 13-year-old sister, Evelyn; her six-year-old son, Atland; and her 19-month-old daughter, Rhonda Horton. Cheryl and Atland testified for the State.

The first night that they all lived together, the defendant sat on Atland’s head and beat his lower body with an extension cord. The defendant beat Atland almost every two days. During Easter week in April 1979 the defendant whipped Atland across the back, arms, buttocks and legs with an extension cord because he thought that Atland had opened an Easter basket. When Atland was sent to school, he could barely walk; school officials took him to St. Bernard’s Hospital. As a result of the beating Atland suffered multiple abrasions over his thighs, arms, back, buttocks, legs and neck. Medical personnel also noted numerous old scars with the same pattern of elongated loops as the new marks.

On June 6, 1979, the defendant beat 13-year-old Evelyn, striking her with his fist and knocking her to the floor. He picked her up by the ankles and swung her into a wall, and then kicked her in the side. He hit her on the head with a skillet, struck her legs and back with a metal mop and sliced around her throat with a knife. He also hit her in the stomach, ear and mouth with a metal burglar bar. She lost consciousness and control of her bladder. Cheryl Caruth intervened, brought Evelyn into the bathroom and tried to revive her. The defendant claimed that Evelyn was “faking” and hit her in the face with a brush, knocking out some of her teeth. Evelyn was taken to Cook County Hospital. As a result of the beating Evelyn suffered blunt trauma to the face and torso and decreased renal function. She had bruises all over her face, a swollen eye, a bruised chest, a tender abdomen, swollen feet and hands, and blood in her urine.

On several occasions the defendant withheld food from Cheryl’s daughter, Rhonda; he said she was getting too fat. He force-fed Rhonda by pulling her entire head backwards in short, quick, jerking movements, shoving food inside her mouth. On several other occasions, he sucked on Rhonda’s cheeks causing her skin to turn black- and-blue. He also chewed on Rhonda’s arm from her wrist to her elbow until the skin appeared similar to that on her face. He threw Rhonda up into the air almost every day. On one occasion Rhonda’s nose started bleeding, but the defendant would not stop. Her head often came close to the ceiling. Cheryl saw Rhonda’s head actually hit the ceiling once; Atland saw it happen two or three times.

The defendant made Rhonda sit on a toilet training chair often, sometimes for hours at a time. On the morning of June 11, 1979, he struck Rhonda about five or six times with his hands and with his slippers; he ordered her to sit on the toilet training chair for hours and then put her to bed. At about 11 p.m. he began throwing Rhonda into the air. He held her by her feet and swung her up and down in circles. Her head hit a radiator. Atland saw Rhonda’s head hit the radiator; he heard a thump; and he heard the radiator make a ringing sound. Cheryl heard the defendant telling Rhonda to wake up and to get up. He brought Rhonda to Cheryl in the bathroom. He splashed water on her and attempted mouth-to-mouth resuscitation. He took Rhonda to the hospital. While on the way to the hospital, he told Cheryl to say that Rhonda fell while Cheryl was with her in the bathroom. Rhonda died at the hospital three days later from cranial cerebral injury and associated bruises. The defendant was charged with the murder of Rhonda. Nine months after his arrest, he pleaded guilty to involuntary manslaughter and served approximately three months’ imprisonment.

The defendant testified that he never did anything more than spank Natasha’s hand. He also admitted playing with her by shaking her from side to side and by tossing her into the air on a couple of occasions. However, he denied that her head ever came close to touching the ceiling, which was very high. He also denied ever failing to catch her on the descent. He said that he helped toilet-train Natasha but denied ever tying her to the chair. He testified that Gibbs frequently struck Anthony and Natasha and that it was Gibbs who caused Natasha to be hospitalized. He saw Gibbs striking Natasha in the back with her fist while Natasha was lying facedown on a pillow. Gibbs was pushing Natasha’s face into the pillow, holding the back of her neck with one hand and hitting her in the back with the other hand. He pushed Gibbs aside and picked Natasha up; Natasha showed no physical signs of injury until she lost consciousness several days later. He told people that Natasha was injured when Anthony jumped on her in order to protect Gibbs; she was afraid and he told her not to get involved.

He testified that he met Cheryl Caruth in 1978 after he befriended her abandoned children. After Cheryl and her children moved in with him and his mother, he and his mother cared for the children. Cheryl was drunk almost every day. He said that he was arrested for the aggravated battery of Atland Caruth; however, although he admitted slapping Atland’s hand on occasion, he denied ever striking him with a belt or an extension cord. Cheryl, who was pregnant at the time, caused Altand’s injuries; Cheryl hit him with a belt. He told the police that, while he hit Atland before he went to school, Atland injured himself when he fell down and cut himself. He denied telling the police that he had hit Atland with a belt.

He testified that he never struck Rhonda. Although he admitted striking Evelyn in the face, causing her to fall on an overturned footstool, he said that Cheryl, while pregnant, caused Evelyn to be hospitalized by beating her with a mop handle. He also testified that Cheryl, while intoxicated, caused Rhonda to fall backwards and hit her head on the radiator which resulted in her death. He tried to revive Rhonda and brought her to the hospital. He ultimately pleaded guilty to the involuntary manslaughter of Rhonda and the aggravated battery of Evelyn so that Cheryl would not be prosecuted for perjury.

Several other witnesses testified for the defendant. They were either friends or relatives. The collective import of their testimony was that the defendant was attentive and caring to the Gibbs and Caruth children and that Victoria Gibbs and Cheryl Caruth were derelict and abusive mothers.

Dr. Richard Penn, a specialist in pediatric neurosurgery with Rush-Presbyterian-St. Luke’s Hospital, testified in rebuttal that Natasha suffered from a dysfunction of the spinal cord in the high cervical area, a thoracic fracture of the fourth and fifth vertebrae and a clavicular injury. While the thoracic fracture of Natasha’s vertebrae could not have been caused by violent force-feeding, it was his opinion that the fracture could have been caused by throwing Natasha into the air so that her head struck the ceiling or by causing her to fall more than six feet onto a hard surface. On the other hand, the high cervical spinal cord injury could have been caused either by force-feeding, by throwing her into the air so that her head hit the ceiling or by causing her to fall from “a sizeable height.” Neither the thoracic vertebrae fractures nor the high cervical spinal cord injury could have been caused by striking a child in the back or neck or by forcing a child’s head into a pillow.

Officer William Jordan testified that the defendant admitted that he had hit Atland with a belt once but that no welts had been made. The defendant told him that Atland had fallen.

In his findings, the judge made direct and candid expressions of his view of the credibility of the witnesses. In sum, he did not believe the defendant or his witnesses; he did believe Atland Caruth, Walter Brawner, Shirley McLaurin and Laverick Brawner. The defendant makes no issue of the judge’s determination of the credibility of the witnesses; nor does he claim that the evidence does not establish that his actions caused the injuries suffered by Natasha. Therefore, a resolution of the question of the sufficiency of the evidence requires that we accept the State’s evidence as true.

The State must prove that the defendant possessed the specific intent to kill Natasha Gibbs and that he did an act which constituted a substantial step toward killing her. (People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535.) Because the specific intent to kill is a state of mind, where it is not admitted, it may be inferred from the character of the assault and the overall circumstances of the case. (People v. McNutt (1986), 146 Ill. App. 3d 357, 496 N.E.2d 1089.) A conviction will be sustained if the defendant is actuated “by wanton and reckless disregard of human life that denotes malice, and the assault is made under such circumstances that, if death had ensued, the killing would have been murder.” People v. Coolidge (1963), 26 Ill. 2d 533, 537,187 N.E.2d 694, 696-97.

There can be no arguable claim that the overall circumstances of the case do not disclose malice against Natasha on the part of the defendant; nor, in our judgment, can there be any claim that if death had ensued, the defendant would not have been guilty of murder. In this regard, we find it particularly significant that the defendant had previously killed a small girl whom he had subjected to a general course of mistreatment strikingly similar to the course of mistreatment to which he had subjected Natasha. With that previous experience before him, the defendant would be hard put to make any claim of accident or negligence for the injuries suffered by Natasha. The defendant apparently argues that the act causing the death of Rhonda was dissimilar to the act causing the injury to Natasha because the killing of Rhonda was caused by the defendant swinging her by the heels so that her head struck a radiator, while he threw Natasha in the air so that her head struck the ceiling. That distinction between the acts is a grim nicety whose significance escapes us.

The defendant relies principally on People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 1270, and argues that his conduct is inconsistent with an intent to kill Natasha. In Mitchell, the prosecution relied primarily on the defendant’s statements to the police. She told them that she had had a quarrel with her boyfriend and, in her anger, struck her daughter several times. After that beating, the child began to play and appeared normal, although bruised, when she was put in bed that night. The following day the child was “not minding and getting into cupboards”; as a result, the defendant “became nervous” and struck the child a number of times with her open hand. She placed the child in a highchair, and the child became unconscious. The defendant placed a cool cloth on the child’s head for 15 minutes and then took her to the hospital. When the police asked why she had beaten the child, she explained that she wanted to give the child away, that the child reminded the defendant of its father, whom the defendant hated, and that she was taking her anger out on the child. The supreme court reversed her conviction of attempted murder.

Factually, Mitchell is wide of the mark. The evidence of a frustrated, angry and truthful mother, who beat her child on two occasions and took the child to the hospital immediately, is in stark contrast to the evidence of a previously convicted child-killer who repeatedly tortured another child over a period of almost three months and then, in a display of consciousness of guilt, tried to foist responsibility on other innocent parties, just as he had done before in another case of child abuse.

The defendant also emphasizes two aspects of the evidence which, he maintains, illustrate the weakness in the State’s proof. First, although he now admits that the evidence establishes that he slapped Natasha and that she became unconscious, he points to the fact that he brought her into the bathroom, threw water on her and attempted artificial respiration. He argues that this evidence “belies an intent to kill.” The answer to this argument is that once the elements of attempted murder are complete, abandonment of the criminal purpose is no defense. (People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535.) Second, he maintains that if he intended to kill Natasha, he had ample opportunity available to him and that the fact that this conduct occurred over a three-month period “negates the intent to kill.” We must reject that argument also. Because the defendant did not snuff out Natasha’s life in one act in November 1984 does not mean that a fact finder could not consider the defendant’s entire course of conduct over a three-month period. Attempted murder may consist of a series of acts. (See People v. Koshiol (1970), 45 Ill. 2d 573, 262 N.E.2d 446.) The judge specifically held that the defendant “committed all of these acts” with the intent to injure, maim and ultimately kill Natasha “as part of a continuing pattern of child-abuse.” It is clear that the judge regarded the defendant “as a sadist who preferred” to kill Natasha by degrees. People v. Myers, 85 Ill. 2d at 290.

It is the function of the trier of fact to determine the existence of the requisite intent, and that determination will not be disturbed on review unless it clearly appears that there exists a reasonable doubt of the defendant’s guilt. (People v. Migliore (1988), 170 Ill. App. 3d 581, 525 N.E.2d 182.) When a reviewing court is presented with a challenge to the sufficiency of evidence, the relevant standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) The judge heard all the testimony and observed the demeanor of all the witnesses; he found the defendant to be a “liar” and a “totally unbelievable witness”; and the State’s witnesses to be credible. He specifically ruled that:

“[T]he defendant committed acts which constitute a substantial step towards the commission of murder and that James Brown intended to murder Natasha Gibbs and *** knew that his acts created a strong probability of death or great bodily harm to Natasha Gibbs.”

It is our judgment that the record reveals that the judge, as a rational trier of fact, could have concluded that the defendant intended to commit the offense of murder; that he took a substantial step toward the commission of that crime; and that he would have succeeded had it not been for extraordinary medical measures. We must, therefore, refuse to interfere with the findings of the trial judge; in fact, we agree with his findings'.

The defendant next contends that his convictions for aggravated battery must be reversed because of an alleged variance between the proof and the indictment. The first count of the indictment charged the defendant with causing Natasha bodily harm and permanent disability “by beating her about the body with a belt.” The second count charged him with causing great bodily harm “by beating her about the body with a belt.” The third count charged him with aggravated battery to a child “by beating her about the body with a belt and *** hands.” The defendant maintains that the testimony of Dr. Penn established that the “great bodily harm” or “permanent disability” suffered by Natasha was caused by either her head striking the ceiling or by the violent force-feeding by the defendant, and that it was not caused by his beating her with a belt or his hands.

The State argues that since the judge merged the offenses and sentenced the defendant only for attempted murder, there is no final judgment of conviction for aggravated battery, and, therefore, the appeal of the aggravated battery convictions should not be entertained. There is support for the State’s argument. (People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481; People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.) The defendant has not responded to the State’s argument. However, the absence of a sentence for aggravated battery is not a jurisdictional defect, and we have decided to consider the appeal of the aggravated battery convictions. People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.

It would serve no purpose to repeat all the evidence; suffice it to say that the evidence established great bodily harm caused by the use of a belt and the defendant’s hands. The defendant struck Natasha repeatedly with his hands and a belt over a 2½-month period. By January 1985 she was so weakened that she, a previously healthy little girl, could not play, talk, laugh, or smile. She could not eat well; her face began to twitch involuntarily. She could neither stand nor walk without holding onto the walls. In our judgment a fact finder could conclude from that evidence that a 16-month-old child had suffered “great bodily harm” and that it was caused by the beatings with the belt and the hands of the defendant. (See People v. Reynolds (1980), 91 Ill. App. 3d 683, 415 N.E.2d 685; People v. Cross (1980), 84 Ill. App. 3d 868, 406 N.E.2d 66; People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853.) Moreover, the defendant’s argument ignores the fact that Natasha suffered a broken collar bone in addition to the injuries to her spinal column. A broken collar bone is “great bodily harm.” The defendant also ignores the proof that the severed spinal cord could have been caused by the defendant violently force-feeding Natasha. In our judgment, an injury caused by violently force-feeding a child could be considered an injury caused by the use of the defendant’s hands. Even if we were to conclude that there was a variance between the proof and the indictment, we would further conclude that the variance was hot material. The indictment was sufficient to apprise the defendant of the charge so that he could prepare a defense, and an acquittal would have barred any further prosecution on a charge of aggravated battery of Natasha Gibbs. People v. Figgers (1962), 23 Ill. 2d 516, 179 N.E.2d 626.

The defendant next argues that the court erred in permitting proof that he had abused Rhonda Horton, Atland Caruth, Evelyn Caruth and Anthony Gibbs. Before trial the defendant filed a motion in limine; neither the motion nor the State’s response has been made part of the record. The judge ruled that the evidence of other wrongful acts was admissible to show intent, knowledge of the consequences of the defendant’s acts, motive, absence of mistake and a common scheme or design in dealing with small children. The State argues in this court that the evidence showed the defendant’s intent and his modus operandi.

The admissibility of evidence of other offenses rests within the sound discretion of the trial court, and its decision will not be overturned unless a clear abuse of discretion is shown. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292.) Evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime. People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.

The threshold test is whether proof of another offense tends to prove any relevant fact. Kimbrough contains a comprehensive list of cases illustrating various purposes for which proof of other offenses is admissible. (Kimbrough, 138 Ill. App. 3d at 484-85.) Kimbrough points out that the various purposes identified are not the only purposes and that such evidence may be admissible for more than one purpose. (138 Ill. App. 3d at 485-86.) Among the cases listed are ones upholding admissibility to show intent and absence of accident. Evidence which shows that an event was not caused by accident tends to show that the event was caused intentionally. Evidence of another offense to show intent (or absence of accident) is based on the doctrine of chances. (2 Wigmore, Evidence §302 (Chadbourn rev. ed. 1979).) The basis of the rule was expressed in Commonwealth v. Donahue (1988), 519 Pa. 532, 549 A.2d 121, in which the defendant was charged with homicide due to child-abuse. The prosecution introduced evidence that the defendant had caused the death of another child three years earlier. The supreme court of Pennsylvania upheld the admissibility of the other offense, stating as follows:

“Thus, in order to avail itself of the accident exception to the rule that past crimes are usually not admitted into evidence, the Commonwealth must show that (1) the previous incident(s) are similar to the incident in question and (2) that a similar result obtained in both cases. The basic idea is that although two different children may, at different times, be seriously injured or killed while in a person’s care, and that this may happen without his intentional conduct, as the number of such incidents grows, the likelihood that his conduct was unintentional decreases. It is merely a matter of probabilities.” 519 Pa. at 543, 549 A.2d at 127.

The similarities between the defendant’s acts against Rhonda and his acts against Natasha are strong ones, and the results in both cases are similar, although not identical since Rhonda died. Consequently, we have no doubt that the evidence of the acts committed by the defendant against Rhonda Horton was admissible to show the defendant’s intent or, put another way, the absence of accident when he nearly caused the death of Natasha. That being so, it is unnecessary to consider the State’s argument that the evidence was admissible to establish the defendant’s modus operandi. Although the defendant has not argued the lapse of time between the killing of Rhonda and the assaults against Natasha, we are mindful of that lapse. It is not an overriding fact that would preclude admissibility of the offense against Rhonda; it is, however, a fact which could be considered in determining the weight of the evidence. People v. McMillan (1980), 86 Ill. App. 3d 208, 407 N.E.2d 1137.

The defendant argues that the evidence should not have been admitted under the exception permitting proof showing absence of mistake or accident. He contends that the defense to which he testified was a denial that he force-fed Natasha or threw her into the air so that her head hit the ceiling; his defense was not that the injuries were “the result of inadvertence, mistake or other innocent event.” The defendant apparently misunderstands when the State may introduce proof of other wrongful acts.

The specific intent to kill is an element of the offense of attempted murder. Where specific intent is an element of the crime, the prosecution may introduce evidence of other offenses to establish the element of intent even if the defendant has not placed intent into question. (United States v. Brantley (7th Cir. 1986), 786 E2d 1322.) When the defendant pleaded not guilty, he put the State to its proof, and it was entitled to offer all relevant evidence in its case in chief. (People v. Botulinski (1945), 392 Ill. 212, 64 N.E.2d 486; see also McMichael v. State (1978), 94 Nev. 184, 577 P.2d 398.) The State had no way of knowing whether the defendant would testify or offer any proof. Therefore, it had the right to introduce evidence which would support the conclusion that Natasha’s injuries were not caused by negligence.

We turn next to the admissibility of the assault of Anthony Gibbs. We believe the evidence was admissible for two reasons. The case cited by the State, People v. Milner (1984), 123 Ill. App. 3d 656, 463 N.E.2d 148, is the only Illinois case we have found dealing with the propriety of proof of child abuse against a person other than the victim of the crime for which the defendant was being tried. In that case, the defendant was charged with the murder and involuntary manslaughter of his infant son. The child’s body was so badly decomposed that no cause of death could be found. One of the State’s theories was that the defendant had caused the child’s death by violently shaking him.

The State was permitted to show that the deceased’s twin sister had suffered a fractured arm and knees the previous year and that the defendant had given the police a statement that another child had jumped off a window ledge onto his daughter, thereby injuring her. The defendant also admitted shaking the child hard enough to injure her.

In addition, the State introduced evidence that another child of the defendant had died seven years earlier. The child had been left in the defendant’s care and died, according to the defendant, when the child had fallen off a bed. An autopsy indicated that the child had died from a brain hemorrhage which could have been caused from a fall, but a more common cause for such an injury would be repeated shaking. The autopsy of that child also revealed several healing fractures of the ribs which had occurred before his alleged fall.

X rays of the twin sister of the deceased revealed a spiral fracture of the arm and small chip fractures of both knees. The spiral fracture was in the same area as the one found on the boy who had died seven years earlier. A radiologist was permitted to testify that he believed those injuries were the “hallmark” of a battered child. X rays of the decedent indicated that he had healing rib fractures and a chip fracture of the left scapula, which were similar to those of his twin sister and the child that had died six years earlier.

The appellate court held that the prior instances of child abuse were relevant to prove a number of facts, including intent. Similarly, other jurisdictions in child-abuse cases have upheld admissibility of other acts of child abuse on the ground that the other acts tended to establish intent or absence of accident. In State v. Morosin (1978), 200 Neb. 62, 262 N.W.2d 194, the defendant was charged with assault based on his intent to inflict great bodily injury on the seven-month-old child of the woman with whom he lived. He also lived with his 3½-year-old son. The seven-month-old child was injured around August 3, 1975. The State was permitted to show that the defendant had abused his own son on June 15, 1975, and on about August 5, 1975. The supreme court of Nebraska upheld the admission of the evidence of the other offenses on the ground that they tended to prove criminal intent. In State v. Riggsbee (1984), 7 N.C. App. 167, 323 S.E.2d 502, the defendant operated a day-care facility in her home for children ranging from infant to five years of age. She was charged with the child abuse of a four-month-old child who had been in her care. The State was permitted to introduce evidence that three months earlier she had abused a seven-month-old child who had also been in her care. The court upheld admissibility on the ground that the evidence tended to show that the act for which she was on trial was not caused by an accident. (See also Commonwealth v. Donahue (1988), 519 Pa. 532, 549 A.2d 121; Umber v. State (1978), 264 Ark. 479, 572 S.W.2d 402; United States v. Woods (4th Cir. 1973), 484 F.2d 127.) We conclude, therefore, that the evidence of the assault of Anthony tended to prove that the defendant intended to harm Natasha.

We believe that the evidence of the beatings of Anthony may be upheld on the additional ground that it formed part of the res gestae of the offense against Natasha. We note that the defendant does not claim any error in the introduction of the evidence of wrongful acts committed by the defendant against Victoria Gibbs; nor does he claim that the State could not show all the wrongful acts he committed against Natasha. (By this observation we do not mean to imply that the evidence was not proper.) The wrongful acts that the defendant committed against Anthony were but part of the general course of conduct in which he engaged against Victoria Gibbs and Natasha at the same place and over the same, period. (People v. Ciucci (1956), 8 Ill. 2d 619, 137 N.E.2d 40; Coleman v. State (Fla. App. 1986), 485 So.2d 1342.) It is not controlling that the judge allowed the evidence on grounds other than the fact that the acts against Anthony were part of the res gestae. See People v. Levy (1989), 186 Ill. App. 3d 842, 542 N.E.2d 930.

For these reasons, we judge that the court did not abuse its discretion in permitting proof of the assault of Anthony. Gibbs. We judge further that the evidence of the wrongful acts against Rhonda and Anthony were highly probative in that they tended to prove an essential element of the crime and that the probative value of the evidence exceeded any prejudical effect it might have.

We concede, however, that we have considerable difficulty in justifying the admission of the acts committed against Atland and Evelyn Caruth. Neither Milner, nor any of the cases from other jurisdictions which we have cited, factually support the State’s argument that proof of the acts against Atland and Evelyn Caruth establishes that the defendant intended to kill Natasha six years later. The acts against Atland and Evelyn are not so strongly similar to the acts against Natasha as were the acts against Rhonda. Most important, the acts against Rhonda caused her death and thus placed the defendant on notice that his assaults of a small child had a strong probability of causing death. It is for those reasons that we have upheld admissibility of the acts against Rhonda to show intent to kill Natasha, while refusing to hold that the acts against Atland and Evelyn established that same intent.

Similarly, we cannot accept the State’s argument that the acts against Atland and Evelyn were proof of the defendant’s modus operandi or any of the other recognized purposes for which such evidence may be received. Evidence of a separate offense may be admissible as proof of modus operandi only upon a strong and persuasive showing of the similarity between the crime charged and the separate offense; there must be a substantial and meaningful link between the offenses being compared. Although the similarities of the offenses being compared need not be unique, some distinctive feature not common to most offenses of that type must be present to show modus operandi. (People v. Partin (1987), 156 Ill. App. 3d 365, 509 N.E.2d 662.) Obviously, there are similarities between the acts committed against Evelyn and Atland and those committed against Natasha in that they were all acts of senseless cruelty to children. But we do not believe that the similarities are sufficient to meet the requirements of the modus operandi exception. That lack of sufficient similarity and the six-year lapse of time between the acts lead us to conclude that the evidence should not have been received. It is apparent that all the evidence shows that the defendant has a propensity to abuse children, to say the least, but unless there is some other relevant purpose for the introduction of such evidence, it must be excluded.

However, we judge that the reception of the evidence in a bench trial was not so prejudicial that the defendant’s conviction should be reversed. (See People v. Kline (1982), 92 Ill. 2d 490, 504, 442 N.E.2d 154, 161.) Our direction comes from the supreme court, which instructs us:

“It is not the policy of this court to reverse a judgment of conviction merely because error was committed unless it appears that real justice has been denied or that the finding of guilty may have resulted from such error. [Citations.]” People v. Morehead (1970), 45 Ill. 2d 326, 332, 259 N.E.2d 8,11-12.

There is no doubt that the defendant did the acts that led Natasha to an almost vegetative state; there is no doubt that he killed Rhonda; and there is no doubt that he repeatedly beat a 2½-year-old boy. In short, the admissible evidence supports the judge’s conclusion that the defendant was a “torturer and abuser of children.” We cannot believe that the judge would have acquitted the defendant if the evidence of the beatings of Atland and Evelyn Caruth had been excluded; nor can we believe that he would not have imposed an extended term.

The wrongful acts that the defendant committed against Natasha alone justified the imposition of an extended term (Ill. Rev. Stat. 1983, ch. 38, pars. 1005—5—3.2(b)(2), (b)(3)(i)); and the evidence of the wrongful acts he committed against all the children would have been properly admitted in aggravation. Consequently, we are convinced that the judge would have imposed the same sentence even if the evidence of the beatings of Atland and Evelyn had not been presented during the trial.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    DENNIS FRIGO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Kelly Beverly Plumbing, Appellee).
    First District (Industrial Commission Division)
    No. 1—89—2859WC
    Opinion filed June 8, 1990.

      Stevenson, Rusin & Friedman, of Chicago (John A. Maciorowski, of counsel), for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago (Michael F. Doerries, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Dennis Frigo, sought worker’s compensation benefits following a knee injury sustained while working for respondent, Kelly Beverly Plumbing. An arbitrator awarded no benefits after finding that, although a work-related accident had occurred, no disability resulted, and the present condition of ill-being was the result of a non-work-related accident which occurred 16 months later. The Commission upheld the arbitrator’s decision in all respects, except that it awarded medical costs for services rendered within a few weeks after the accident. The circuit court confirmed the Commission’s decision. Petitioner appeals, contending the Commission’s decision is against the manifest weight of the evidence.

Petitioner worked as a plumbing superintendent for respondent. On August 14, 1986, petitioner and another man were carrying a 150-pound box when petitioner tripped, striking his left knee on concrete. The box fell on his legs. Petitioner was in “excruciating pain, I was screaming for about it seemed like eternity ***.” He did not work the remainder of the day. That evening he noticed swelling, pain, and a weakness in the leg. He did not seek medical care that day. On August 15, 1986, petitioner saw Dr. Connell. Petitioner testified that Dr. Connell told him to return to work and “take it easy if you could.”

Dr. Connell’s findings were negative. X rays were also negative. Dr. Connell diagnosed a left knee contusion and recommended that petitioner take aspirin, consider an orthopedic evaluation, and return to work.

A Palos Community Hospital worker’s compensation report dated August 15, 1986, states all tests were negative except for “mild supra-patellar joint effusion” and “tender over left medial knee cap area.” Petitioner refused drugs and a knee brace. He was released for light work “for 2 days, rest if possible.”

On the following work day, petitioner returned to work. On August 28, 1986, Dr. Farrell, an orthopod, examined petitioner. He recommended that petitioner continue to watch the knee and, if there was no improvement in a month, have an arthroscopy performed. Petitioner did not return to Dr. Farrell or to any other physician for medical treatment. Petitioner testified that he did not elect to have the arthroscopy because “I don’t like being cut. I don’t like visiting doctors.”

Petitioner continued to work for the next 16 months. His job duties required him to perform “active” plumbing duties several times a week. This required squatting down, kneeling and standing. He noticed “a stiffness in the knee,” and some pain and swelling. The symptoms “never completely” went away. Petitioner missed no work during this time. He did complain to his supervisor and respondent’s owner, Richard Kelly, “periodically,” such as when the weather would change.

From October 1986 through January 1987, and from October 1987 through January 1988, petitioner participated in pheasant and water fowl hunting seasons. Pheasant hunting required walking through fields which were not level. He usually hunted every weekend. After hunting, he noticed swelling, grinding and crunching in his knee.

On January 3, 1988, petitioner was pheasant hunting in a field on snowy, frozen ground. “As I was walking *** my [left] knee gave out on me.” Petitioner described the incident: “It gave out on me and I went down. When I went down, it felt like I fell in a hole, but there was no hole there.” He noticed “excruciating pain.” It was “just about the same pain” that he had experienced 16 months earlier, in August 1986. Petitioner “tried walking and then it buckled up on me and I figured something was wrong.” He returned to the truck and rested while the others continued hunting.

On January 4, 1988, petitioner sought medical treatment at Palos Community Hospital. A hospital form filled out at 10:15 a.m. states “fell in a hole.” The hospital report includes typewritten information taken down at 10:33 a.m., and states petitioner’s “chief complaint” is: “(L) Knee Injury/Fell in a Hole.” The nurse’s notes written at 11:45 a.m. reads: “male [states] he fell in a hole 1-3-88.” The examining physician’s notes made at about 1:25 p.m. state petitioner complained of “falling in hole with left leg and twisting left knee.”

He complained of pain and weakness in the knee. The examination revealed forward flexion with pain; mild to moderate effusion; tenderness; discoloration from the left knee to the foot; and pain with ambulation. X rays revealed a supra-patellar joint effusion. The diagnosis was left knee joint effusion with 2-degree blunt trauma. Petitioner’s left knee was placed in a knee immobilizer, and he was given crutches. Petitioner did not return to work. Petitioner testified that he did give a history to the admitting nurse, but denied reporting that he fell in a hole, twisting the left knee the previous day.

On January 6, 1988, petitioner saw Dr. Basel I. Al-Aswad, an orthopedic surgeon. In a May 19, 1988, evidence deposition, Dr. AlAswad testified:

“He gave me a history of his past problems dating back to 1986 when he had a possible meniscal tear and he gave me the history that he had given to Dr. Farrell, but there was a new history in that he was out hunting three days prior to him seeing me and his knee gave out on him and it swelled up. But he denied any significant trauma at that time, any new injury or twisting trauma.”

Dr. Al-Aswad testified that there was “a discrepancy between the history given to me and the history that’s on the chart for [January 3, 1988] in the emergency room.”

Dr. Al-Aswad observed effusion, or fluid, of the left knee, tenderness and limited range of motion. Dr. Al-Aswad aspirated 40 cc’s of a bloody fluid from the knee. The excess fluid could have been the result of a twisting incident of the knee. Dr. Al-Aswad testified on cross-examination that the presence of the fluid indicated a recent injury. Fluid accumulates “very rapidly” after trauma. If the knee gave out, petitioner could then have twisted it and fallen. While there was mild effusion seen in August 1986, “[b]y the time he saw me, it just started to accumulate, it became much worse.”

On January 13, 1988, petitioner again saw Dr. Al-Aswad, complaining of pain and inability to bear weight on his left leg. On January 18, 1988, Dr. Al-Aswad performed an arthroscopy. During surgery, he observed Grade II chondromalacia, and synovial hypertrophy, i.e., marked swelling and inflammation of the synovial lining. There was no ligament tear, and no meniscal tear. Dr. Al-Aswad also noted a mild anterior cruciate ligament strain. This condition could have resulted from a twisting incident, or a fall or a variety of incidents. The chondromalacia could occur to “a person who uses his knees a lot in bending.” It can be caused by trauma and can be aggravated by the type of trauma petitioner suffered in August 1986.

Dr. Al-Aswad testified that the negative findings noted by Dr. Connell in August 1986 suggested that no anterior cruciate instability existed, and no collateral ligament instability existed, after the work accident. The lateral collateral ligament tenderness which Dr. AlAswad observed was a new finding compared to the August 1986 examinations. However, “it may be new, but I don’t think it’s that significant from that point of view.” The tenderness and effusion could result from a twisting incident. On May 4, 1988, Dr. Al-Aswad released petitioner for work.

At the May 19, 1988, evidence deposition, Dr. Al-Aswad opined, in answer to a hypothetical question, that petitioner’s present condition was “most likely related to an earlier dat[ed] injury rather than to an acute recent injury, so that it’s related to the original one in ’86.”

At a May 18, 1988, evidence deposition, Dr. James Ryan, an orthopedic surgeon, testified that on May 13, 1988, he examined petitioner at respondent’s request. In answer to a hypothetical question which included the fact that the patient experienced “pain and grinding” in his knee during the 16-month period, Dr. Ryan opined that the January 18, 1988, surgery was necessitated by the hunting incident of January 3, 1988, and not the August 1986 work incident. The effusion seen in January 1988 was the result of a new injury. “[Bjloody fluid in a situation like that is a fresh injury ***.” The bloody fluid would not exist over a 16-month period and was the result of a recent injury. Moreover, the “giving way and locking and swelling *** was something relatively recent.” A twisting incident could cause pain, inflammation, irritation of the lining of the joint capsule and cause the knee to give way.

Dr. Ryan testified further that the chondromalacia seen during surgery was the result of age and overuse. A traumatic episode like the August 1986 accident would not produce Grade 2 chondromalacia. Instead, it would have to produce “a real significant chondromalacia. Probably a Grade 4, a real crack.” If the August 1986 accident had caused the chondromalacia, there “would have been a much more significant type of lesion.” Moreover, chondromalacia, which is a degenerative process of the articular cartilage in the knee, is not considered a classical cause of a knee collapsing. The August 1986 incident could have aggravated a preexisting chondromalacia condition. But the condition “in a man of this age is quite common.”

At the June 9, 1988, hearing, petitioner called Richard Kelly, respondent’s president and owner, to testify. The arbitrator permitted the testimony over respondent’s objection that Kelly’s name had not been included on the list of petitioner’s witnesses.

Kelly testified that between August 14, 1986, and January 1988, petitioner complained about his left knee approximately once each week. Kelly noticed him limping from time to time, “mostly [on] the left leg.” On May 9, 1988, petitioner had returned to work as a supervisor.

The arbitrator denied all benefits, finding that petitioner failed to prove that he sustained any disability on account of the work accident.

The Commission found no causal relationship between the August 14, 1986, accident and the condition of ill-being which required medical services after January 3, 1988. The Commission relied on the fact that petitioner sought no medical treatment after August 28, 1986, and continued to work full time until January 4, 1988. The Commission pointed to the January 4, 1988, emergency room records indicating petitioner fell in a hole the previous day, while hunting. Finally, the Commission relied on Dr. Ryan’s opinion that no causal connection existed. The Commission did, however, award $125 in medical costs for treatment rendered prior to January 3, 1988, finding that those costs were causally related to the August 1986 accident.

The circuit court confirmed the Commission’s decision, finding that it was not against the manifest weight of the evidence.

Petitioner contends that the Commission’s decision is against the manifest weight of the evidence.

It is within the province of the Industrial Commission to determine questions concerning the credibility of the witnesses, the weight to be assigned to the evidence, causal connection, and the extent of disability. (Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401, 459 N.E.2d 963; Neal v. Industrial Comm’n (1986), 141 Ill. App. 3d 289, 490 N.E.2d 124.) A court may not disregard permissible inferences drawn from the evidence by the Commission merely because other inferences might have been drawn. (Long v. Industrial Comm’n (1979), 76 Ill. 2d 561, 394 N.E.2d 1192.) Where expert medical opinions differ, the Commission must determine the weight to be given to those opinions. (Zarley v. Industrial Comm’n (1981), 84 Ill. 2d 380, 418 N.E.2d 717; Long v. Industrial Comm’n, 76 Ill. 2d 561, 394 N.E.2d 1192.) Moreover, questions of whether a preexisting condition has been aggravated concern primarily medical questions, and a finding of fact by the Commission based on medical testimony should be given substantial deference. (Berry v. Industrial Comm’n, 99 Ill. 2d 401, 459 N.E.2d 963; Long v. Industrial Comm’n, 76 Ill. 2d 561, 394 N.E.2d 1192.) We will not disturb the Commission’s findings on these questions of fact unless they are against the manifest weight of the evidence. Berry v. Industrial Comm’n, 99 Ill. 2d 401, 459 N.E.2d 963; Smith v. Industrial Comm’n (1987), 161 Ill. App. 3d 383, 512 N.E.2d 712.

In the present case, the Commission was entitled to conclude that the August 14, 1986, accident produced no disability after August 28, 1986. Petitioner’s examining physician, Dr. Connell, noted that all findings were negative. He recommended aspirin. Petitioner did not need surgery, crutches, medication, or a knee support. He did not miss work. He could walk and engage in everyday activities. During that time, he participated in two full hunting seasons, which required periods of sitting, standing and hiking in cold weather on hard, uneven terrain. At work he performed physical labor in helping the employees with their plumbing tasks. In fact, petitioner continued working for 16 months without complaint to a physician. While petitioner did see Dr. Farrell on August 28, 1986, he never returned for any follow-up treatment.

Dr. Ryan opined that no causal relationship existed between the work accident and the subsequent need for surgery in 1988. Dr. Ryan also stated that the fluid indicated a recent trauma had occurred. The chondromalacia was common in men of petitioner’s age.

Dr. Al-Aswad testified that the negative findings by Dr. Connell’s earlier examination indicated that some of the conditions observed during surgery in January 1988 did not exist in August 1986. Dr. AlAswad also found the tenderness over the lateral collateral ligament was a new finding, and the tenderness could result from a twisting incident. Dr. Al-Aswad admitted on cross-examination that the bloody fluid on the knee indicated that a new injury or trauma had occurred.

Petitioner points to Dr. Farrell’s August 28, 1986, recommendation that petitioner consider an arthroscopy if his condition did not improve in a month. Petitioner, however, never returned to Dr. Farrell. The mere fact that he did undergo an arthroscopy 16 months later is not sufficient to require the Commission to find a causal connection between the condition of the knee at that time and the August 1986 accident.

Petitioner argues that the evidence does not support a finding that any accident occurred in January 1988. However, the Commission could properly find that the history given by petitioner at the emergency room was correctly recorded as reported by petitioner. The hospital records filled out by four different people at four different times over a four-hour period repeatedly indicate that petitioner reported falling in a hole.

Interestingly, two months later, on March 16, 1988, Dr. Al-Aswad noted that petitioner was anxious about what history he had previously given. Dr. Al-Aswad observed that petitioner had a previous problem and was out hunting and had been injured prior to an initial visit of January 4, 1988.

Petitioner’s argument that section 16 of the Act mandates exclusion of the hospital records is without merit. (See Ill. Rev. Stat. 1987, ch. 48, par. 138.16 (medical records are not “conclusive proof of such matters”).) Notably, it was petitioner who introduced the hospital records into evidence.

Petitioner relies heavily on the testimony of Kelly, respondent’s owner, that petitioner complained of knee problems intermittently during the 16-month period before January 1988. In view of the medical evidence, however, that testimony does not compel a finding that a new, non-work-related injury did not occur on January 3, 1988. Significantly, Dr. Ryan considered the fact that petitioner complained of knee problems throughout the 16-month period. It did not alter his opinion that no causal connection existed between the August 1986 accident and the condition of the knee in January 1988.

The Commission was entitled to find that Kelly’s brief testimony provided only vague confirmation that petitioner experienced some difficulty. It did not detract from the fact that the condition of his knee did not interfere with petitioner’s work duties, that the knee required no medical attention until January 1988, and that the medical findings at that time were significantly different than the August 1986 medical findings.

Petitioner also relies on Kelly’s testimony that petitioner telephoned in January 1988 and said “that he had problems with his leg, and that he wouldn’t be able to come in to work,” and that petitioner had reported that the leg “collapsed.” The Commission need not have found this tends to indicate one way or the other whether the leg “collapsed” when petitioner stepped in a hole.

For the foregoing reasons, the judgment of the circuit court of Cook County, confirming the Industrial Commission’s decision, is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FAYGIE FIELDS, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—0299
    Opinion filed June 11, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Thomas M. Donnelly and Julie Hull, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Diann Doppelt, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial, defendant, Faygie Fields, was found guilty of murder, felony murder, armed robbery, home invasion and armed violence. (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1(a)(1), 9—1(a)(3), 18—2(a), 12—11(a), 33A—2, respectively.) Judgment was entered as to the murder and felony murder convictions only, all other offenses having merged with the murder conviction. Defendant was then sentenced to a prison term of 40 years. On appeal, defendant contends that: (1) defense counsel’s failure to investigate defendant’s psychiatric history constituted ineffective assistance of counsel; (2) the trial court erred in failing to hold a fitness hearing sua sponte; (3) defense counsel’s failure to move to suppress the bullets seized in a warrantless search of defendant’s home constituted ineffective assistance of counsel; (4) the testimony of Jeffery Hill, sole eyewitness, was so unlikely and improbable as to be insufficient to sustain defendant’s conviction; and (5) the trial court erred in entering judgment on two counts of murder when only one person was murdered. For the following reasons, the judgment of the trial court is affirmed in part, vacated in part, and remanded for resentencing.

The record sets forth the following facts. At the preliminary hearing on June 8, 1984, defense counsel Meismer requested a behavior clinic examination of defendant prior to arraignment. The trial court granted the request and ordered the examination. Dr. Stephen Cann, staff psychiatrist for the Psychiatric Institute, examined defendant and found that he was not fit for trial at that time. Dr. Gann’s report stated that defendant would most likely become fit for trial within one year if he underwent treatment and that defendant’s sanity at the time of the offense could not be evaluated at that time due to an absence of police reports. The matter was continued to August 1, 1984, at which time the State requested that defendant be given another psychiatric examination. The trial court granted the State’s request. The record contains a psychological exam interim form signed by Dr. Michael Rabin, staff psychiatrist at the Psychiatric Institute, dated August 9, 1984, which stated that defendant was fit for trial and had been legally sane at the time of the offense. The record also contains two reports, dated September 28, 1984, and October 17, 1984, in which Drs. Gerson Kaplan and Gilbert Bogan, also staff psychiatrists at the Psychiatric Institute, concurred with Dr. Rabin’s earlier opinion that defendant was fit for trial and had been legally sane at the time of the offense.

Subsequently, on October 31, 1984, defense counsel David Beister requested a full hearing on defendant’s fitness with all examining psychiatrists as well as Dr. Chin, the psychiatrist who had been treating defendant for the past year, in attendance. The trial court granted defense counsel Beister’s request and continued the matter to November 27, 1984. On November 27, defense counsel Meismer stated that Dr. Chin’s report had not yet been received and requested and was granted a continuance to December 21, 1984. On January 8, 1985, defense counsel Meismer stated that because no order had been prepared allowing a private doctor to examine defendant, defendant’s private doctor, Dr. Busey, had not been permitted to examine defendant at the jail. The court then signed the order allowing defendant to be examined by the private doctor.

On January 29, 1985, defense counsel Meismer informed the trial court that defendant’s mother had requested a new attorney. Accordingly, Meismer moved to withdraw and tendered his files to the court. Thereafter, on February 5, 1985, attorney Marshall Weinberg filed his appearance on behalf of defendant. The court turned over defendant’s files to Weinberg and granted a continuance to March 6, 1985. On that date, Weinberg moved to withdraw as counsel on the ground that the family refused to cooperate and he needed their cooperation because defendant was underage. Weinberg stated that if the family cooperated, he would withdraw his motion. Thereafter, on April 10, 1985, Weinberg renewed his motion to withdraw, stating that defendant was indigent and had requested a public defender. On May 8, 1985, the court-appointed public defender informed the court that a private attorney had been retained by defendant. On May 10, 1985, private attorneys Muslim and Wilkie filed appearances on behalf of defendant. Discovery was tendered to the new counsel, and the trial court told them that they would not be permitted to withdraw.

Following several continuances, at the hearing on September 25, 1985, defense counsel Wilkie informed the court that the matter was before the court to determine defendant’s competency to stand trial. The court asked, “When did this come up?” The State interjected that reports filed in September and October 1984 had indicated that defendant was fit for trial. The court then asked, “How would the issue be up today then? The case was set for trial July 8th.” Defense counsel Wilkie replied that a prior attorney for defendant had made the motion and he was informed that, at that time, defendant had been found to be incompetent to stand trial. However, Wilkie acknowledged that defendant had been examined subsequently and had been found to be competent to stand trial. Defense counsel Wilkie then withdrew his motion for a competency hearing. On the next court date, October 24, 1985, the State reiterated that all fitness reports showed defendant to be fit and sane and wanted to be sure that defense counsel understood there was no need for a fitness hearing. Defense counsel concurred and stated that any motion regarding fitness had been withdrawn. Following several continuances, trial commenced on December 16,1985.

At trial, Jeffery Hill, cab driver for his parents’ cab company, testified for the State that approximately 8 p.m. on May 27, 1984, he had picked up defendant at defendant’s mother’s house in Robbins, Illinois. Defendant wanted to go to Harvey. On the way to Harvey, Hill stopped at the home of Irvin Parker in Robbins to pick up and to pay for a package of drugs for another party. At Parker’s house, both Hill and defendant got out of the cab. After Parker and Hill made the exchange, Parker said he wanted to talk to defendant alone. Hill walked back to his cab, and defendant went into Parker’s house. Approximately five minutes later, defendant came out and told Hill that he wanted to go back to his mother’s house to pick up something. At that time, Hill received a dispatch to return the cab to his parents’ home. Hill drove defendant to his mother’s house and returned the cab to his house. He then walked to his sister’s house, approximately three blocks away, and borrowed her car, after which he picked up defendant and drove back to Parker’s house so that defendant could complete a deal with Parker.

At Parker’s house, both Hill and defendant got out of the car. Once again, Parker told Hill that he wanted to speak to defendant alone. Parker and defendant went inside and Hill remained outside. After waiting approximately 10 minutes, Hill went into the house. He peered into the front bedroom and saw Parker. Defendant then walked out of the bedroom, past Hill, into the living room and closed the front door. While defendant was in the living room, someone knocked at the front door. Hill heard defendant talking to a female, but could not discern what the female was saying.

Meanwhile, while defendant was out of the bedroom, Parker told Hill that he did not have any money and asked Hill to tell that to defendant for him. Parker then attempted to climb out of the bedroom window. At that time, defendant returned to the bedroom and said, “We cannot have any of this,” and closed the window. Parker sat on the bed. Defendant was standing and holding a gun.

Hill then left the bedroom and stood in the living room, approximately three paces from the bedroom door. Defendant was standing inside the bedroom with his back to Hill. Hill could hear Parker pleading with defendant not to kill him and telling defendant that he did not have any money. Hill then saw Parker jump up from the bed with his hands in front of his face and heard four to six gunshots. Hill testified that he thought defendant was going to shoot him next. However, defendant said he was not going to shoot him and, instead, started to ransack the house. Hill saw Parker lying on the bedroom floor with blood around his head. He also noticed that telephone cords had been ripped out of the wall.

Defendant then said, “Let’s go,” walked out of Parker’s house carrying a portable television set, and asked Hill to drive him to his brother’s house in Markham. Hill suggested that they drive to the home of Tammy Holmes in Robbins instead. When they arrived at Holmes’ trailer, Hill honked the car horn and Tammy came to the door. Hill told her that defendant had a television set he wanted to sell. When Tammy said that she did not have enough money to buy it, defendant telephoned his brother from Tammy’s house and arranged for him to pick up the television there.

Officer Donald Davis of Robbins police department testified that approximately 10:45 p.m., on May 28, 1984, he had received a telephone call from Willie Evans, informing him that there was a body at Parker’s address. When Davis arrived at Parker’s house, he noticed that the front door was wide open. He entered the house and found Parker’s body lying facedown in the bedroom. A telephone cord was wrapped around his fingers. Davis stated that the house had been ransacked. Two days later, Jeffery Hill called the Robbins police station to report the murder.

Officer Sylvester Stewart of the Robbins police department testified that he had investigated the murder scene on May 28, 1984, and had interviewed Hill on May 31, 1984. After interviewing Hill, Officer Stewart secured an arrest warrant for defendant on June 1, 1984, and arrested him at his residence later that day. At the time of the arrest, Officer Stewart recovered a Victor patch tube containing .22 caliber cartridges from defendant’s residence. Earlier that day, Nathanial Fields, defendant’s brother, had reported to the Markham police that his .22 caliber gun was missing. A .22 caliber bullet had been recovered from Parker’s body.

At the conclusion of the State’s case, defendant’s motion for a directed finding was denied. Defense counsel Wilkie then entered a stipulation that none of the fingerprints found at the murder scene matched those of defendant and rested his case. Following closing arguments, the trial court found defendant guilty of murder, felony murder, armed robbery, home invasion and armed violence. Judgment was then entered on the convictions for murder and felony murder, all other offenses having merged with the murder conviction. Prior to the sentencing hearing, defendant was examined by two psychiatrists from the Psychiatric Institute and found mentally fit for sentencing. At the sentencing hearing, defendant’s motion for a new trial was denied. After hearing arguments in aggravation, the court found defendant eligible for the death penalty. However, after defense counsel’s argument in mitigation, the court determined that the death penalty would not be imposed and sentenced defendant to a prison term of 40 years. Defendant’s appeal followed.

Initially, defendant contends that defense counsel Wilkie’s failure to investigate his psychiatric records and Wilkie’s failure to present an insanity defense constituted ineffective assistance of counsel. Defendant claims that an investigation of his medical records would have led to a different action at the fitness hearing and might have led to an insanity defense at trial.

In order to establish ineffective assistance of counsel, defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. The defendant bears the burden of proving that, absent counsel’s errors, the fact finder would have had a reasonable doubt as to his guilt. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Baldwin (1989), 185 Ill. App. 3d 1079, 541 N.E.2d 1315.

In the present case, defendant’s contention that he had been denied effective assistance of counsel is based on a faulty premise, a misleading interpretation of the record and conjecture. First, defendant argues at several points that defense counsel Wilkie had failed to investigate defendant’s psychiatric records. However, the record contradicts this contention. Each time defense counsel withdrew and new counsel was substituted, the trial court supervised the transfer of all prior discovery, including psychiatric reports. Moreover, prior to trial, defense counsel Wilkie informed the court that he was aware that defendant had been found unfit to stand trial at one time, but that three subsequent examinations had found him fit. Thus, defense counsel Wilkie was familiar with the psychiatric reports relevant to defendant’s fitness to stand trial and to his sanity at the time of the offense.

Defendant’s reliance on the single report of unfitness as grounds for a conclusion that he would have been found unfit upon further investigation is misplaced. The report of unfitness was subsequently refuted by five psychiatric reports which found him mentally fit and concluded that he had been sane at the time of the offense. The first three reports were prepared prior to trial and the last two were prepared after trial and prior to sentencing. Furthermore, the single report of unfitness stated that, with treatment, defendant would most likely become fit. Thus, the facts do not support defendant’s claim that the reports raised a reasonable doubt as to his mental condition. To the contrary, the record supports defense counsel’s decision that an incompetency defense was not appropriate.

In addition, defendant has erroneously relied on People v. Baldwin (1989), 185 Ill. App. 3d 1079, 541 N.E.2d 1315, People v. Murphy (1987), 160 Ill. App. 3d 781, 513 N.E.2d 904, and People v. Howard (1979), 74 Ill. App. 3d 138, 392 N.E.2d 775, for his contention that a more complete investigation would have produced a different trial result as to his fitness. Baldwin, Murphy and Howard are factually distinguishable from the present case on the pivotal issue of the impact of fitness evidence not brought forward at trial. In Baldwin, on defendant’s motion, a pretrial fitness hearing was held at which Dr. Markos, a psychiatrist, testified on behalf of the State that he had reviewed a psychological summary prepared by another psychiatrist which detailed defendant’s admissions to various psychiatric institutions; diagnosed defendant as paranoid schizophrenic and concluded that defendant was unfit to stand trial. Dr. Markos concurred with the diagnosis and opined that defendant had a serious psychotic illness. Defendant then testified, stating that he was fit to stand trial, and answered several of the court’s queries, indicating an awareness of the proceedings. The trial court ruled that defendant was fit to stand trial. On appeal, the reviewing court held that the trial court should not have rejected the expert’s conclusion without more than just defendant’s own testimony that he was fit, and that defense counsel’s failure to investigate and to discover certain pertinent psychiatric records until after the trial clearly prejudiced defendant and constituted ineffective assistance of counsel.

By contrast, in the present case, there is no evidence that any psychiatric records of significance were overlooked. Moreover, any argument as to the possible impact of such records is mere conjecture which cannot support a claim for ineffective assistance of counsel. (People v. Gierbolini (1984), 128 Ill. App. 3d 794, 471 N.E.2d 625.) Further, as previously stated, the fact that three different psychiatrists had found defendant to be fit for trial effectively refuted any doubt as to defendant’s mental condition, precluding the need for further investigation into defendant’s past medical records. People v. Schultz (1989), 186 Ill. App. 3d 976, 542 N.E.2d 1272.

Defendant’s reliance on People v. Murphy (1987), 160 Ill. App. 3d 781, 513 N.E.2d 904, is also misplaced. In Murphy, the reviewing court held that defendant had been denied effective assistance of counsel by his trial counsel’s failure to investigate his mental condition or to obtain records of his prior hospitalizations when he had sufficient reason to suspect that defendant might not be fit to stand trial. Similarly, in People v. Howard (1979), 74 Ill. App. 3d 138, 392 N.E.2d 775, the court determined that defense counsel’s failure to discover and to use defendant’s psychiatric records severely prejudiced the outcome of the competency hearing and required a reversal of defendant’s conviction.

In both Murphy and Howard, defense counsel had failed to investigate defendant’s psychiatric records when surrounding facts and circumstances raised a reasonable doubt as to the competency of the respective defendant. In neither case had there been psychiatric reports stating that defendant was fit to stand trial or that he had been sane at the time of the offense. In the present case, the only indication of unfitness was the first report prepared shortly after defendant had been arrested. As mentioned, this report stated that, with treatment, defendant would likely become fit to stand trial. The three subsequent psychiatric reports prepared before trial found defendant to be fit to stand trial and to have been sane at the time of the offense, thereby refuting any doubt as to defendant’s competency or sanity.

Finally, there is no evidence in-the record that had a fitness hearing been held, the results of the trial would have been different. (Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) The same doctors who had filed reports would have testified as to their content. Therefore, defense counsel Wilkie properly determined that the need for a fitness hearing or the pursuit of an insanity defense was inappropriate.

Next, defendant contends that because the trial court had enough information about his mental condition to raise a reasonable doubt as to his competency, the court had a duty to hold a fitness hearing sua sponte, and it erred in failing to do so. Instead of holding the hearing, defendant argues that the trial court “actively discouraged defendant from seeking a fitness hearing and silently acquiesced when the State told defendant’s new counsel that all the psychiatrists examining defendant had found him fit.”

The determination of whether a bona fide doubt as to defendant’s fitness to stand trial has been raised to warrant a hearing depends on the facts of each case and is largely within the discretion of the trial court. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) In the present case, the circumstances surrounding defense counsel Beister’s initial request for a fitness hearing and defense counsel Wilkie’s withdrawal of the motion are pertinent to the issue of whether the trial court had a bona fide doubt as to defendant’s fitness to stand trial. On October 31, 1984, defense counsel Beister requested a fitness hearing at which the psychiatrists who had submitted written reports and the psychiatrist who had been treating defendant for the past year would be present. The trial court granted the request and set November 27, 1984, for the hearing. No further reference to a fitness hearing was made until September 25, 1985, even though 10 hearings had been held in the interim. At one point, a trial date had even been set for July 8, 1985. On September 25, defense counsel Wilkie stated that the matter was before the court on defendant’s motion for a fitness hearing. Expecting the case to go to trial, the court asked, “When did this come up?” Defense counsel Wilkie explained that a prior attorney had made the motion. However, because defendant had since been found competent to stand trial, defense counsel Wilkie withdrew the motion. The court commented that there had been no such issue raised on July 8, and that they would proceed to trial. The cause was continued to October 24, 1985, at which time the State sought to confirm defense counsel’s position that there would be no fitness hearing. The State mentioned the psychiatric reports which had found defendant fit for trial, but failed to mention the first report which had found him unfit. However, regardless of this omission by the State, the record indicates that defense counsel Wilkie was aware of all of the reports and that the State was not introducing any new information. Defense counsel acknowledged that he had withdrawn the motion for a fitness hearing. The trial date was then continued three times to December 16, 1985. Contrary to defendant’s characterization of the trial court’s role in the withdrawal of the motion for a fitness hearing, the trial court did not “actively discourage” defendant from seeking a fitness hearing, nor did the trial court “silently acquiesce” to the State’s statement that there was to be no fitness hearing. The State merely sought confirmation of that fact from defense counsel.

Furthermore, the trial court’s initial agreement to hold a fitness hearing does not constitute irrefutable bone fide doubt, as defendant suggests. (See People v. Eddmonds (1984), 101 Ill. 2d 44, 461 N.E.2d 347.) In Eddmonds, defendant was charged by information with murder and deviate sexual assault. Upon the assistant public defender’s request, the trial court ordered a psychiatric examination of defendant. Subsequently, on December 6, 1977, Dr. Reifman of the Psychiatric Institute submitted his report, stating that defendant was unfit for trial. As a result, the public defender petitioned for a fitness hearing by jury. The court entered an order setting January 12, 1978, for a fitness hearing. On that date, the public defender submitted a report from another psychiatrist stating that defendant was fit for trial. Consequently, another examination was ordered, and, on January 25, 1978, a private psychiatrist reported that defendant was unfit for trial. The public defender again petitioned the court for a fitness hearing by jury, and a hearing was set for March 8, 1978. The hearing was continued three times by agreement.

On May 25, 1978, the public defender informed the trial court that he had spoken to Dr. Reifman, the first examining psychiatrist, and Dr. Reifman had requested that he be allowed to examine defendant again prior to the hearing. Dr. Reifman reexamined defendant on June 6, 1978, and found him fit to stand trial with medication. The public defender then asked the court to order a psychiatric examination to determine defendant’s sanity at the time of the offense. The order was entered. However, the psychiatrist reported that he could give no opinion as to defendant’s sanity at the time of the offense.

The Eddmonds court stated that the transcript of the proceedings on March 13, 1979, indicated some confusion as to whether defendant had been found unfit to stand trial. Finally, on April 4, 1979, in an attempt to clarify the situation, the public defender requested a reexamination of defendant as to his sanity at the time of the offense and as to his fitness to stand trial. Defendant was reexamined and found fit for trial.

In May 1979, defendant, appearing pro se, moved that the court appoint an attorney from the bar association to represent him rather than a public defender. The court appointed a new attorney, who promptly moved for a psychiatric examination of defendant to determine his sanity at the time of the offense. The examining doctor reported that, in his opinion, defendant was sane at the time of the offense. Defendant then requested a second examination. This exam was ordered, but the record on appeal did not contain the results. Following a bench trial, defendant was convicted of murder and deviate sexual assault and sentenced to death for the murder conviction and to 40 to 80 years’ imprisonment for the deviate sexual assault conviction.

On direct appeal to the supreme court, defendant argued, inter alia, that the trial court had erred in proceeding to trial without conducting a fitness hearing when it had a bona fide doubt of his fitness as evidenced by its two orders for a fitness hearing. Based on the surrounding circumstances, the Eddmonds court held that the trial court had not erred in failing to order another fitness hearing sua sponte. The supreme court found the following circumstances relevant to its determination: (1) the most recent psychiatric reports available to the court tended to show defendant was fit for trial; (2) defense counsel had made no further request for a fitness hearing; (3) defendant had testified lucidly at both the pretrial hearing and at the trial; (4) the only evidence of defendant’s unfitness for trial was reports by one doctor who subsequently changed his opinion, and of another doctor whose report of unfitness was made more than two years prior to trial.

In the present case, the evidence refuting any bona fide doubt as to defendant’s fitness to stand trial is even stronger than that in Eddmonds. Here, the three most recent psychiatric reports indicated that defendant was fit for trial and had been sane at the time of the offense. After the initial request for a fitness hearing, none of the four subsequent defense counsel made a further request for such a hearing. Although defendant did not testify at trial, the record indicates he understood the trial proceedings by his voluntary waiver of a jury at trial and at sentencing, and his awareness of his family’s desire to have him represented by private counsel rather than by the public defender’s office. Finally, the only evidence as to defendant’s unfitness was one psychiatric report which had been filed IV2 years prior to trial and had been refuted by three subsequent psychiatric reports. Accordingly, pursuant to People v. Eddmonds (1984), 101 Ill. 2d 44, 461 N.E.2d 347, the trial court did not abuse its discretion in failing to order a fitness hearing sua sponte.

Defendant next contends that defense counsel Wilkie’s failure to move to suppress the only physical evidence linking defendant to the crime constituted ineffective assistance of counsel. Defendant’s contention is predicated on the State’s introduction into evidence of bullets seized in defendant’s home at the time of his arrest. At the outset of his argument, defendant makes several references to a “warrantless search of defendant’s home.” In fact, defendant was arrested in his home pursuant to a valid arrest warrant and, although there was no search warrant, there is no evidence that defendant’s home had been searched. In light of the fact that there is no question as to the validity of the arrest warrant, the bullets could have been properly seized incident to the lawful arrest.

Failure of counsel to suppress evidence is not per se incompetence. Whether or not the motion should be filed is a question of trial tactics and generally has no relation to counsel’s competence. (People v. Gierbolini (1984), 128 Ill. App. 3d 794, 471 N.E.2d 625.) In the present case, defendant claims that it is “reasonably probable” that had the motion been filed, the verdict would have been different because the conviction would rest solely on the testimony of Hill, an admitted drug courier. Defendant’s argument is mere conjecture and has no basis in fact. It is well recognized that a claim of ineffective assistance of counsel cannot be based on mere conjecture. (People v. Gierbolini (1984), 128 Ill. App. 3d 794, 471 N.E.2d 625.) Accordingly, whether a motion to suppress would have been successful is not so clear as to conclude that had the motion been filed, the outcome of the trial would have been different.

Defendant further argues that the testimony of Jeffery Hill, the sole eyewitness, was so “preposterous” and “improbable” as to fail to support defendant’s conviction. Defendant bases this claim on the following: (1) Hill’s testimony was guaranteed by a court order and a bond; (2) Hill stated that he had charged defendant for transporting him to and from Parker’s house twice; (3) Hill claimed that he had been acting in the capacity of a cab driver even when he was driving his sister’s car; (4) Hill’s primary contact with Parker was drug dealing; (5) Hill never drove defendant to his original destination; (6) it took an unexplained six hours for Hill to get his sister’s car; (7) Hill claimed that he never saw the shooting although he had been standing a few paces outside the bedroom door; (8) after defendant shot Parker, Hill claimed he was in fear of his own life, yet he refused to drive defendant to his brother’s house; and (9) Hill did not report the murder for two days.

It is well established that a reviewing court will not substitute its judgment for that of the trier of fact who heard the evidence and had the opportunity to observe the witness’ demeanor unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to defendant’s guilt. (People v. Cooper (1987), 164 Ill. App. 3d 734, 518 N.E.2d 260.) In the present case, this standard for reversal has not been satisfied.

First, whether Hill’s testimony had been guaranteed by a court order and bond does not impact on the reasonableness or probability of his testimony. (See People v. Cooper (1987), 164 Ill. App. 3d 734, 518 N.E.2d 260 (a grant of immunity from prosecution and the dropping of other unrelated charges is not indicative of unreasonable or improbable testimony).) Second, with respect to the allegedly “preposterous” statements referenced by defendant, none of these statements is so unreasonable or improbable as to raise a reasonable doubt as to defendant’s guilt. Hill’s statements that he had been acting in the capacity of a cab driver, had charged defendant for the ride, and had delivered drugs to Parker are not relevant to a determination of defendant’s guilt. They are simply factors to be considered by the trial court in assessing Hill’s credibility. (People v. Cooper, 164 Ill. App. 3d 734, 518 N.E.2d 260.) The fact that Hill never drove defendant to his original destination is not preposterous in light of the intervening events. Regarding the events at Parker’s house, Hill testified that, at the time of the shooting, he had been standing outside the bedroom doorway and defendant had his back to him. Thus, he would not have been able to see defendant actually shoot Parker. However, he stated that defendant had a gun, he heard shots coming from the bedroom, and he later saw Parker lying on the floor in a pool of blood. After the shooting, Hill was afraid that defendant was going to shoot him. Defendant said he had no plans to shoot Hill, but wanted Hill to drive him to his brother’s house so that he could give his brother the television set he had taken from Parker’s house. Not wanting to drive defendant to his brother’s house, Hill offered to drive defendant to Tammy Holmes’ trailer to see if she wanted to buy the television. Defendant agreed to the alternative plan, and when Holmes did not want to buy the television, he called his brother from her trailer and told him to pick up the television there. Defendant incorrectly states that Hill testified that it had taken six hours for Hill to get his sister’s car. In fact, Hill testified that it took him approximately one hour to get the car and to pick up defendant, explaining that it had taken some time to convince his sister to let him use her car. Finally, Hill’s failure to report the shooting for two days is indicative of nothing more than fear for his life. When he did report the shooting, he did so on his own volition. The fact that he did not keep his initial appointments with the police merely confirms his fear. Accordingly, we conclude that Hill’s testimony was not so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify reversal of defendant’s conviction.

Lastly, defendant argues that the trial court, improperly convicted him of both murder and felony murder when only one death occurred. On appeal, the State agrees with defendant that where only one person is murdered, there can be but one conviction, and that the sentence must be imposed on the most serious offense. (People v. Hosty (1986), 146 Ill. App. 3d 876, 497 N.E.2d 334.) Accordingly, because intentional murder has the more culpable mental state, the conviction for murder should be affirmed and the conviction for felony murder vacated. In addition, because it is not clear from the record whether the sentence was predicated on defendant’s conviction of both murder and felony murder, the matter should be remanded for re-sentencing on the murder conviction. See People v. Plummer (1986), 151 Ill. App. 3d 94, 502 N.E.2d 1120.

For the aforementioned reasons, the judgment of the trial court as to defendant’s conviction for murder is affirmed; the conviction for felony murder is vacated, and the cause is remanded for resentencing.

Affirmed in part; vacated in part and remanded for resentencing.

O’CONNOR and MANNING, JJ., concur.

       Apparently, Dr. Chin had refused to further examine defendant and Dr. Busey was substituted as the private doctor.