author: JUSTICE MURRAY

text:
    SHIRLEY KINCAID, Plaintiff-Appellee, v. JERALD W. SMITH, Defendant-Appellant (Ames Department Stores, Inc., d/b/a Zayre Illinois Corporation, et al., Defendants).
    First District (5th Division)
    No. 1—92—4331
    Opinion filed August 20, 1993.

      McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Richard J. Rettberg, Christine L. Olson, and Terry M. Lachcik, of counsel), for appellant.
    Lonny Ben Ogus, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

After the trial court denied defendant Jerald W. Smith’s (Smith’s) motion to dismiss the action against him pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), Smith applied to this court for leave to bring a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). On December 4, 1992, the trial court certified a question for review and, on January 5, 1993, this court granted Smith leave to appeal. The facts of this case are as follows.

On February 26, 1990, plaintiff Shirley Kincaid (Kincaid) filed a complaint against Smith, Santos Cruz (Cruz) and Zayre Illinois Corporation (Zayre), alleging false arrest and malicious prosecution based upon an incident which occurred April 5, 1989. Subsequently, Kincaid learned that Ames Department Store (Ames) had purchased Zayre just prior to the date of the incident, but that she could not amend her complaint and proceed against Ames because on April 20, 1990, Ames filed a petition for relief under chapter 11 of the United States Bankruptcy Code (the Code) (11 U.S.C. §301 (1988)). On May 25, 1990, both Ames and an attorney representing Zayre notified Kincaid’s attorney, Lonny Ben Ogus (Ogus), by letter, that a bankraptcy petition had been filed and that section 362(a) of the Code (11 U.S.C. §362(a) (1988)) provided for an automatic stay of all judicial proceedings, the violation of which could result in civil contempt.

On June 7, 1990, Ogus wrote to Ames, asking whether the automatic stay provided for under section 362(a) of the Code affected his ability to proceed against codefendants Smith and Cruz, who were being sued as employees of Ames. There is no letter of response from Ames. However, in another letter Ogus sent to Ames dated October 2, 1990, Ogus noted that, based upon discussions he had with Ames’ legal counsel, he understood Ames’ position to be that the claims against Smith and Cruz were so closely related to the claim against Ames that the stay applied to them as well. Apparently, Kincaid accepted this position to be fact and then directed her efforts toward lifting the stay.

In December 1990 Kincaid filed a motion with the United States Bankruptcy Court for the Southern District of New York to have the automatic stay lifted so that she could proceed in her civil suit. On March 28, 1991, the bankruptcy court ordered the stay lifted so that Kincaid could serve Ames with process in the action and preserve her rights. Consequently, on April 2, 1991, Kincaid amended her complaint, replacing Zayre with “Ames Department Store d/b/a Zayre, an Illinois Corporation” as party defendant and served process on Ames.

On February 8, 1991, Kincaid filed a second motion in bankruptcy court requesting a modification of the automatic stay. As a result of this motion the bankruptcy court entered an order on November 25, 1991. In this order the bankruptcy court held that, since Ames was insured under a policy issued by Argonaut Insurance, the automatic stay should be modified to allow Kincaid to liquidate her contingent claim, except that any punitive damage award would not be allowed without further order of the bankruptcy court and that the encumbrance of any of Ames’ property was prohibited.

Following this order, Kincaid sent an alias summons and amended complaint to the sheriff’s department in Dona Ana County, Las Cruces, New Mexico, to be served on Smith, who apparently had not yet been served in this matter. Smith was then served by a Dona Ana County sheriff on January 4,1992.

Although it does not appear in the record, Kincaid claims that Smith initially filed an answer to the complaint, pro se, denying the charges. In any event, on May 29, 1992, Smith, through counsel, filed a motion to dismiss the action against him pursuant to Illinois Supreme Court Rule 103(b). 134 HI. 2d R. 103(b).

Subsequently, the trial court denied Smith’s motion, stating that it was unpersuaded by any representations Ames may have made to Ogus regarding the effect of the stay on the other defendants, since an attorney may not rely upon the representations of opposing counsel on matters such as this. Nevertheless, the trial court ruled that when Ames filed for bankruptcy under chapter 11, the action against Smith was also stayed. The court based its decision on the fact that Smith was being sued in his capacity as an agent of Ames. In addition, however, the trial court stated that it believed plaintiff exercised due diligence in light of the attempts to obtain service and various communications made.

Smith filed a motion to reconsider on October 13, 1992, which the trial court denied on October 23, 1992. On December 4, 1992, the trial court granted Smith’s motion for a finding pursuant to Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308) and certified for review the following question:

“Whether the filing of a petition for relief pursuant to Chapter 11 of the United States Bankruptcy Code by Ames Department Stores, Inc. operates to stay the false arrest and malicious prosecution action of Shirley Kincaid filed against co-defendant Jerald W. Smith, an employee of Ames at the time of the incident, but a non-debtor who did not file a petition for relief pursuant to the U.S. Bankruptcy Code.”

On December 18, 1992, Smith petitioned for leave to appeal to this court pursuant to Rule 308. This court granted leave on January 5,1993, and both Smith and Kincaid filed briefs.

Before considering the appeal, we must first address Smith’s motion to strike Kincaid’s brief, or parts thereof, for failure to comply with Illinois Supreme Court Rule 341. (134 Ill. 2d R. 341.) This motion was taken with the case and we now deny the motion. Although there are some unsupported elements contained within the brief, this court is capable of disregarding the inappropriate materials. See Kritzen v. Flender Corp. (1992), 226 Ill. App. 3d 541, 589 N.E.2d 909.

With regard to the appeal, it is Smith’s position that the automatic stay of all judicial proceedings imposed by section 362(a) of the Code and applicable to Ames upon its filing of a petition for bankruptcy under chapter 11 of the Code did not operate to stay the proceedings against him. Additionally, Smith argues that, contrary to the trial court’s findings, Kincaid failed to exercise reasonable diligence by failing to serve him wdth process until after the expiration of the applicable statutes of limitations. Smith concludes that, pursuant to Rule 103(b), the trial court should have dismissed the complaint against him with prejudice.

Kincaid, on the other hand, urges this court to answer the certified question on review in the affirmative and to uphold the judgment of the trial court. Kincaid asserts that Smith was not a mere codefendant in this case because Smith was an agent of Ames and, consequently, Smith’s liability was attributable to Ames. Kincaid argues that under these special circumstances, the stay affected her ability to serve and proceed against Smith. In addition, however, Kincaid argues (1) that even if the stay did not apply to Smith, this court should affirm the judgment based upon the trial court’s ruling that due diligence was exercised in obtaining service of process on Smith, (2) that Smith was served before the running of the statute of limitations on the malicious prosecution count, and (3) that leave to appeal pursuant to Rule 308 was improvidently granted and the appeal should be dismissed.

In reply, Smith contends that Kincaid’s arguments regarding the application of the stay must fail because there exists a basis for holding him liable independently from Ames.

After reviewing all of the arguments presented in the parties’ briefs, we find that we must dismiss the appeal as improvidently granted and remand the case for further proceedings.

Supreme Court Rule 308(a) states as follows:

“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court’s own motion or on the motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.” 134 Ill. 2d R. 308(a).

Appeals under this rule should be available only in the exceptional case where there are compelling reasons for rendering an early determination of a critical question of law and where a determination of the issue would materially advance the litigation. (Renshaw v. General Telephone Co. (1983), 112 Ill. App. 3d 58, 445 N.E.2d 70; Voss v. Lincoln Mall Management Co. (1988), 166 Ill. App. 3d 442, 519 N.E.2d 1056.) The rule should be strictly construed and sparingly ex-erased. Schoonover v. American Family Insurance Co. (1991), 214 Ill. App. 3d 33, 572 N.E.2d 1258.

We believe that, in this case, jurisdiction was improperly invoked under Rule 308(a). First of all, although the question certified for consideration by this court contains a written finding that substantial ground exists for a difference of opinion, nowhere does the trial court state that the resolution of the question would materially advance the litigation. Secondly, nothing in this case indicates that the resolution of the certified question, alone, would materially advance the litigation.

The question certified by the trial court pertains only to the effect of the automatic stay imposed as a result of Ames’ bankruptcy petition. Yet, a decision on this matter would not change the trial court’s ultimate ruling on the Rule 103(b) motion. This is because the trial court not only found that the stay imposed by section 362(a) of the Code applied to Smith, the trial court also held that Kincaid exercised due diligence in serving Smith and declined to dismiss the complaint against him pursuant to Supreme Court Rule 103(b). Therefore, any decision made by this court on the effect of the stay would be rendered meaningless. A meaningless opinion does not materially advance litigation. See Schoonover v. American Family Insurance Co., 214 Ill. App. 3d at 40, quoting Koch v. Spalding (1988), 174 Ill. App. 3d 692, 699, 529 N.E.2d 19, 24 (Harrison, P.J., dissenting).

Recognizing that there are actually two issues involved in this case, i.e., the effect of the stay and the effect of the delayed service, both parties, in addition to addressing the certified question on appeal, present alternative arguments for upholding or reversing the trial court’s judgment based upon the trial court’s discretionary decision regarding due diligence. However, if this court were to consider all of the issues presented in this appeal, it would require this court to go outside the boundaries of the certified question and review decisions which are left to the sound discretion of the trial court.

Appeals under Rule 308 are generally limited to the question certified by the trial court and the appellate court should not review questions which have not been made part of the certified question. (See Schoonover v. American Family Insurance Group (1992), 230 Ill. App. 3d 65, 595 N.E.2d 230; People v. Pollution Control Board (1984), 129 Ill. App. 3d 958, 473 N.E.2d 452; Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045, 416 N.E.2d 1110.) Furthermore, according to the historical and practice notes accompanying Rule 308, matters which are primarily discretionary in nature should not be considered under the rule. For these reasons, we now decline to consider the appeal in this case.

Accordingly, we dismiss the appeal as improvidently granted.

Dismissed.

GORDON, P.J., and McNULTY, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY CAMPBELL, Defendant-Appellant.
    First District (1st Division)
    No. 1—92—2784
    Opinion filed August 23, 1993.

      Philip Krasny and John Alioto, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michelle Katz, and Sang Won Shim, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

Defendant appeals his convictions, after a bench trial, of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12— 14(a)), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)), and aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2(a)(3)).

The State’s principal witness was the victim, who testified that at about 7 p.m. on March 12, 1988, she was walking west on Briar Street near Broadway in Chicago, toward her home. As she walked, she saw a man, whom she later identified as defendant, walking about a quarter of a block ahead of her. The man paused under a street lamp. Becoming “uncomfortable,” the victim stopped as the man walked out of view. She hurried to her apartment building and entered the first of two sets of doors, into a vestibule lighted by an overhead lamp. As she took off her gloves, she heard footsteps. The door opened behind her, and she turned around to see defendant standing in the vestibule, pointing a small, yellow, metal gun at her.

Defendant demanded the victim’s wallet. Although the victim tried to engage defendant in conversation, he ordered her to accompany him outside. The area outside the apartment building is lighted by an alley light, which is located 10 to 15 feet west of the walkway in front of the building. Defendant led the victim east on Briar, walking beside her, with the gun held to her side. They walked about a half block, with conversation continuing. They stopped in front of another apartment building, and defendant led the victim down a gangway to the back of the building, where they descended a flight of stairs into the basement stairwell, which was lighted by a dim bulb and by a light in the alley.

There, defendant forced the victim alternately to perform fellatio and to engage in vaginal intercourse with him. The victim looked at defendant as much as she could to gain a solid impression of him, and she continued to engage the defendant in conversation. Eventually, defendant fled the scene, leaving the victim in the stairwell.

After waiting a few minutes, the victim left the stairwell and cautiously returned to her apartment building. She went to a neighbor’s apartment, from where she called police. When police arrived, she led them to the stairwell where the rape had occurred. She also described her assailant for police as a white male, 20 to 25 years old, about 5 feet 9 inches tall, weighing 145 to 160 pounds, “clean-cut” with blond hair and a moustache. She also described his clothing, noting in particular his blue underwear and white Puma tennis shoes.

Two years passed without an arrest. However, on May 17, 1990, as the victim was walking along a street near her home, a man approached her and asked her what time it was. She looked up and immediately recognized defendant. She walked away, keeping her eye on defendant. She went to a pay phone and called her boyfriend, who told her to call police. While she waited for police to arrive she watched defendant, who stayed in the area by a bus stop, continuing to ask women the time. The police arrived and arrested defendant.

The State also presented stipulated testimony from the investigating and arresting police officers, as well as from the victim’s neighbor, which corroborated the time-frame and descriptive details testified to by the victim.

Defendant presented an alibi defense. According to his mother, defendant was with her at the time of the crime. On that day, Mrs. Campbell was looking at cars in Arlington Heights, Illinois, an hour to an hour and a half in distance from the crime scene. Although the car dealership closed at around 6 p.m., Mrs. Campbell stated that she and defendant went to dinner on the way home. Defendant lives with his mother just a few blocks from where the rape occurred. Thus, it was not possible for defendant to be on Briar Street at the time of the crime. Moreover, according to Mrs. Campbell, defendant never wore underwear. She bought all of his clothes, and he never owned a pair of white tennis shoes.

Peter Pane, a salesman at the Ford dealership in Arlington Heights, corroborated Mrs. Campbell’s testimony up to the time when the dealership closed. In addition, contrary to the victim, Pane recalled defendant’s appearance to be “hippyish” rather than “clean-cut.”

The trial court found defendant guilty and sentenced him to a 12-year prison term.

Defendant asserts that because his identification by the victim was unreliable and because the State failed to refute his alibi defense it did not prove him guilty beyond a reasonable doubt. Defendant urges this court to apply the five-factor analysis established by the United States Supreme Court in Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375, and Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243, and adopted by the Illinois Supreme Court in People v. Cohoon (1990), 104 Ill. 2d 295, 300, 472 N.E.2d 403, to determine the reliability of the victim’s testimony in this case.

Defendant’s reliance on these cases is misplaced because the principle for which they stand is inapposite here. Indeed, they stand solely for the proposition that in the face of overly suggestive pretrial identification procedures employed by police, any in-court identification by a witness, in order to be admissible, must possess certain indicia — the five factors — of reliability independent of the tainted pretrial procedures. (Manson, 432 U.S. at 112-13, 53 L. Ed. 2d at 152-53, 97 S. Ct. at 2251-52; Cohoon, 104 Ill. 2d at 298-301.) Reliability of a witness’ identification testimony, once properly admitted into evidence, is not in any way the concern of Manson and its progeny.

In this case, there were no pretrial identification procedures at all, let alone any that would call into question the admissibility of the victim's identification testimony. The victim saw defendant on the street on May 17, 1990. She called police, who came and arrested him. Under these circumstances, the victim’s identification of defendant is simply evidence to be weighed, like any other, by the trier of fact. (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317.) That the trial judge believed the victim instead of defendant’s witnesses is irrelevant. A trial judge is not required to believe even unrefuted alibi testimony. Slim, 127 Ill. 2d at 315; People v. Berland (1978), 74 Ill. 2d 286, 307, 385 N.E.2d 649, cert. denied sub nom. Wolf v. Illinois (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63.

Therefore, the only question in this case is whether the State proved defendant guilty of the crimes charged beyond a reasonable doubt. In so doing this court must ascertain 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.” (Emphasis omitted.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

This case pits the testimony of a lone victim against a defendant. The State presented no evidence linking defendant with the crime other than the victim’s identification testimony. As defendant points out, the victim’s description of the assailant’s hair length is at odds with his appearance in pictures taken both a month prior to and two months after the incident, as well as at the time of his arrest. However, in other respects, the victim’s description to police fits the defendant’s appearance to a tee. She stated that her assailant was 20 to 25 years old, about 5 feet 9 inches tall, weighing between 145 to 160 pounds. The record reveals that at the time he was arrested, defendant stood 5 feet 10 inches tall and weighed 165 pounds. At the time of the crime he was 23 years old. The victim also described her assailant as wearing a moustache, which is consistent with the defendant’s appearance at the time of the crime. For his part, defendant presented the alibi testimony of his mother and of Peter Pane, who both testified that defendant was at an Arlington Heights car dealership at the time of the crime.

As a reviewing court, we lack the trial judge’s advantage of observing the appearance and demeanor of the witnesses as they testified. It is for precisely this reason that this court lacks the authority to reweigh the trial judge’s determinations on the credibility of witnesses. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) Indeed, we may overturn a conviction only if the evidence is “so unsatisfactory” and the witness’ testimony “so lacking in credibility that a reasonable doubt of guilt remains.” (People v. Schott (1991), 145 Ill. 2d 188, 206-07, 582 N.E.2d 690.) Although the substantial corroboration doctrine, overruled in Schott, was still in effect when the offenses in this case were committed, the testimony of even a single witness, if clear and convincing, is sufficient to support a conviction under the pre-Schott standard. Schott, 145 Ill. 2d at 206-07.

Here, the victim never wavered in her assertion that defendant was her assailant. She immediately recognized him when she saw him on the street two years later. That two years had passed since the crime does not render the victim’s testimony incredible. (See, e.g., People v. Rodgers (1972), 53 Ill. 2d 207, 213-14, 290 N.E.2d 251 (two-year lapse).) Indeed, the victim was with the defendant for close to a half an hour on March 12, 1988. Much of this time was spent under well-lighted conditions, particularly the time spent in the vestibule of the victim’s apartment building. Furthermore, the victim testified that she concentrated on the defendant’s appearance at every opportunity, so that she would be able to identify him later.

The defendant quibbles over the victim’s use of the term “clean-cut” to describe defendant because he had long hair and a moustache. However, as the trial judge noted, terms like “clean-cut” have no objective meaning. On the other hand, that defendant wore a moustache is an ascertainable fact, the victim’s testimony to which is corroborated by photographs of the defendant taken around the time of the offense.

The length of defendant’s hair is slightly more problematic because all of the photographic evidence shows it to be longer than the victim’s description. However, the victim testified that on the day of the crime the defendant’s hair was combed behind his ears, which may explain her inability to describe its precise length. Considering the accuracy of the rest of her description, her apparent inaccuracy regarding the length of defendant’s hair is not a crucial discrepancy. (See Slim, 127 Ill. 2d at 302; People v. Frisby (1987), 160 Ill. App. 3d 19, 34, 512 N.E.2d 1337.) In fact, aside from this discrepancy, the record reveals that the victim could not have been more clear and convincing in her recall of the events that took place in March 1988.

Considering all the evidence in the present case, as we must, in a light most favorable to the prosecution, including the victim’s testimony and her identification of the accused as well as the testimony of the investigating and arresting police officers and the victim’s neighbor, a trier of fact could find the defendant committed the acts beyond a reasonable doubt.

Defendant next argues that the State’s destruction of physical evidence denied him due process of law. After the rape, the victim was taken to Illinois Masonic Hospital, where a Vitullo kit was prepared. Vaginal swabs and pubic hair combings were taken from the victim and, on October 30, 1991, they were tested to detect the presence of semen. The tests were negative. Defense counsel was notified of the negative results on November 8, 1991. Prior to trial, the State successfully moved for an order to have the defendant provide pubic and head hair samples for comparison against the hair in the Vitullo kit. Between March 12 and 16, 1992, the State’s Attorney’s office was informed by the Chicago police crime laboratory that the Vitullo kit was missing. The State’s Attorney began a search procedure to locate the kit with the evidence and recovered property section of the police department. On April 1, 1992, the commander of this unit informed the State’s Attorney office that the kit had been destroyed upon its return to the office in November 1991. Pursuant to police regulations, all inventory items in felony cases are destroyed after three years unless the State’s Attorney sends a letter requesting that the evidence be preserved for trial. Defendant filed a motion to dismiss the information based on the State’s failure to preserve the Vitullo kit. The trial court denied the motion.

Citing California v. Trombetta (1984), 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528, defendant argues that had the Vitullo kit not been destroyed, he would have had access to evidence — the pubic hair combings — which if compared to the plucked hairs, could have exonerated him. However, in Arizona v. Youngblood (1988), 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289, 109 S. Ct. 333, 337, the Court emphasized that in cases like the present one, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process.” This court has consistently followed the Youngblood “bad-faith” test. (E.g., People v. Young (1991), 220 Ill. App. 3d 488, 581 N.E.2d 241; People v. Stallings (1991), 211 Ill. App. 3d 1032, 570 N.E.2d 820, appeal denied (1991), 141 Ill. 2d 556, 580 N.E.2d 130.) We decline to depart from it now.

Here, no more can be said of the evidence remaining in the Vitullo kit prior to its destruction than that it might possibly have exculpated defendant. Under these circumstances, Youngblood requires defendant to show bad faith on the part of the police in the destruction of the evidence. No such showing was even attempted by defendant. Indeed, the record makes clear that police were following standard procedure in destroying the evidence. Furthermore, it strains credulity to conclude, absent evidentiary basis, that the State’s Attorney would seek to have the kit destroyed in this case when he was in the process of preparing to further test its contents. Thus, the trial court properly denied the motion to dismiss.

Defendant’s final claim is that the trial court considered evidence outside the record in determining his guilt. In ruling on defendant’s motion for directed verdict, the trial court launched into an extended discussion of the intensity of alley streetlights in Chicago even though no evidence had been presented in this regard. Also, defendant assails the trial judge’s statements in which he inferred that, because defendant lived in the area near the crime, he probably had the opportunity to “scout” the area of the crime.

The State argues that defendant has waived this claim because he failed to object to the trial judge’s comments when made. However, defendant did include his current contention in his post-trial motion. Our supreme court has recently stressed that “application of the waiver rule is less rigid where the basis for the objection is the trial judge’s conduct.” (People v. Nevitt (1990), 135 Ill. 2d 423, 455, 553 N.E.2d 368.) Here, the trial judge uttered the allegedly objectionable comments in ruling on a motion. It is not surprising that defense counsel did not object. Indeed, given the context of the judge’s remarks, objecting at the time was hardly opportune. Under the circumstances, we find good reason to relax the waiver rule.

In order for the comments by a judge to constitute reversible error, “the defendant must show that the remarks were prejudicial and that he was harmed by them.” (People v. Garcia (1988), 169 Ill. App. 3d 618, 622, 523 N.E.2d 992, appeal denied (1988), 122 Ill. 2d 584, 530 N.E.2d 255.) Even assuming that the trial judge’s remarks regarding the lighting in alleys and streets in Chicago were improper, they were not prejudicial to defendant. As the facts indicate, the victim had ample time to form an impression of the defendant, even in dim lighting. Furthermore, the victim made an in-court identification of defendant. The trial judge’s comments regarding defendant’s possible “scouting” of the crime were not improper. A finder of fact is permitted to draw any appropriate inferences from the evidence presented. (People v. Saunders (1990), 206 Ill. App. 3d 1008, 1013, 565 N.E.2d 183, appeal denied (1991), 137 Ill. 2d 670, 571 N.E.2d 154.) Here, the evidence showed that the defendant lived not far from where the incident occurred and that he had been walking in the area immediately prior to the rape. In any event, the finding of guilt here was predicated on the identification testimony of the victim and not on whether the defendant staked out the area.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE HARTMAN

text:
    RAYMOND E. LYNCH, Plaintiff-Appellee, v. ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellant (C R S Services, Inc., et al, Defendants).
    First District (2nd Division)
    No. 1—92—1557
    Opinion filed August 24, 1993.
    Barry M. Lewis & Associates, of Chicago (Kurt E. Olsen, of counsel), for appellant.
    Anesi, Ozmon & Rodin, Ltd., of Chicago (Richard L. Rumsey, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Raymond Lynch, sued defendant, Illinois State Toll Highway Authority (Authority), for personal injury damages. The Authority moved to transfer this matter to Du Page County pursuant to sections 2 — 103, 2 — 104, 2 — 106 and 2 — 107 of the Civil Practice Law (HI. Rev. Stat. 1991, ch. 110, pars. 2-103, 2-104, 2-106, 2-107 (now 735 ILCS 5/2-103, 2-104, 2-106, 2-107 (West 1992)) (sections 2 — 103, 2 — 104, 2 — 106, 2 — 107)), which plaintiff resisted. After a hearing, the circuit court found that the Authority is an administrative agency and not a governmental corporation for the purpose of venue. The motion to transfer was denied. We granted the Authority’s petition for leave to appeal (134 Ill. 2d R. 306(a)(lXiv)), and we reverse and remand.

Plaintiff filed a four-count complaint to recover for injuries he allegedly suffered in a February 22, 1989, accident at 1-88 and Finley Road, in the Village of Downers Grove, County of Du Page, Illinois. The Authority was named in counts I and II. Count I alleges a violation of the Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, par. 59.90 et seq. (now 740 ILCS 150/0.01 et seq. (West 1992))). Count II is based on negligence.

The Authority’s principal office is located at 2001 West 22nd Street, Oak Brook, Du Page County. The Authority moved to transfer venue to Du Page County pursuant to sections 2 — 103, 2 — 104, 2 — 106 and 2 — 107. The motion to transfer was supported by the affidavit of Katherine L. Nee, special assistant Attorney General assigned to act as assistant corporate counsel for defendant. A copy of an order from a previous proceeding, involving the same issue and the Authority, was submitted to the circuit court. In that proceeding, before a different judge, the circuit court found that defendant was a public or governmental corporation under section 2 — 103 and transferred the case to the circuit court of Du Page County.

The issue was raised again by plaintiff, which is the present case. The circuit court found that the Authority was an administrative agency, not a governmental body, and held that section 2 — 103 did not apply, denying the motion to transfer. The circuit court largely relied on section 1 of the Toll Highway Act (111. Rev. Stat. 1991, ch. 121, par. 100 — 1 (now 605 ILCS 10/1 (West 1992)Xsection 1)), which states that the Authority was created as “an instrumentality and administrative agency of the State of Illinois.”

The Authority maintains that the circuit court incorrectly determined it is only an administrative agency and not a governmental corporation for venue purposes and therefore wrongfully denied the motion to transfer. Plaintiff claims that because there is no charter or certificate of incorporation, defendant is not a corporation.

The statute establishing the Authority permits it to operate under its own bylaws; it is empowered to act by the provisions of the Toll Highway Act; it has its own corporate seal; it is authorized to employ and discharge employees without regard to any civil service or personnel law; it has the power and authority to enter into contracts in its own name; it is solely funded through revenue bonds and toll revenues; it does not receive tax revenues from the State; it operates to carry out the public and governmental function of building, operating and maintaining a system of toll highways; and it is organized to fulfil its duties and responsibilities. Ill. Rev. Stat. 1991, ch. 121, par. 100 — 1 et seq. (now 605 ILCS 10/1 (West 1992)).

Although the enacting statute refers to the Authority as “an instrumentality and administrative agency” of the State, this does not require a finding that it is not also a governmental corporation for venue purposes as well. It is clear from the substantive statutory provisions referred to above that the Authority is statutorily organized and is empowered to act as a body corporate in order to fulfill its duties and responsibilities. The statutory appellation of “administrative agency” does not vitiate the patent legislative intent expressed by the substantive provisions of the statute. In this regard, the opinion of the supreme court in Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Comm’n (1969), 42 Ill. 2d 385, 402, 251 N.E.2d 253, is instructive:

“A construction should be adopted which it is reasonable to presume was contemplated by the legislature. (Board of Education v. Brittin, 11 Ill. 2d 411, 414.) ‘[W]hile courts are and should be cautious about adding words, as such, to a statute generally, they will not hesitate to read into the sense of some section or provision a qualifying or expanding expression plainly implied by the general context of the act, which has been palpably omitted and which is necessary to prevent the legislative purpose from failing in one of its material aspects.’ (People ex rel. Barrett v. Anderson, 398 Ill. 480, 485; see also Trustees of Schools v. Sons, 27 Ill. 2d 63, 66.) Here, as we have stated, it is clear that the omission from section 17 discussed was through oversight by the legislature. In accord with the manifested and dominating expression of legislative intent, we conclude that any resolution authorizing the issuance of bonds under section 17 of the Authority Act ‘shall be valid only upon approval by the Governor.’ ”

In a number of cases, including Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority (1970), 45 Ill. 2d 243, 258 N.E.2d 569, Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Comm’n (1969), 42 Ill. 2d 385, 251 N.E.2d 253, and People v. Illinois State Toll Highway Comm’n (1954), 3 Ill. 2d 218, 120 N.E.2d 35, the Illinois Supreme Court has treated the Authority and its predecessor as an independent legal entity, principally because the legislature has delegated to it such administrative and financial autonomy as has been detailed above. Typically, such autonomy is an indicium of a distinct and separate legal entity synonymous with the definition of corporate existence. (See Main Bank v. Baker (1981), 86 Ill. 2d 188, 427 N.E.2d 94.) Section 2 — 103 provides that any public, municipal, governmental, or quasi-municipal corporation may invoke section 2 — 103 to fix venue. The courts have construed this provision so as to include such State entities as the Illinois Racing Board (Knott v. Illinois Racing Board (1990), 198 Ill. App. 3d 364, 555 N.E.2d 1052), although, unlike the Authority, the decisions of the Illinois Racing Board are made subject to review as an administrative agency (Ill. Rev. Stat. 1991, ch. 8, par. 37 — 46 (now 230 ILCS 5/46 (West 1992))), and the Illinois Department of Transportation (Lake Ka-Ho, Inc. v. Kramer (1985), 131 Ill. App. 3d 782, 475 N.E.2d 1379), which is an agency of the executive branch of government. (Ill. Rev. Stat. 1991, ch. 127, par. 49 et seq. (now 20 ILCS 2705/49 (West 1992)).) We hold that section 2 — 103 applies to the instant circumstances and the circuit court erred in denying the Authority’s motion to transfer venue.

The cause is reversed and remanded for further proceedings in accordance with the foregoing conclusions.

Reversed and remanded.

SCARIANO and DiVITO, JJ., concur.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY WILLIAMS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—1648
    Opinion filed August 24, 1993.

      Michael J. Pelletier and Pamela Z. O’Shea, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Martin Head, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court;

A jury found defendant Terry Williams guilty of first degree murder (111. Rev. Stat. 1989, ch. 38, par. 9 — 1 (now codified as 720 ILCS 5/9 — 1 (West 1992))) and he was later sentenced to 40 years in the custody of the Illinois Department of Corrections. On appeal, he contends that (1) the State purposely utilized its peremptory challenges during voir dire to discriminate against blacks and exclude them from the jury; and (2) the circuit court erred in not defining a term used in the instructions despite the jury’s request for clarification.

On May 18, 1990, at approximately 5 p.m., Dion Lowe was standing on the corner of 64th Street and Seeley Boulevard in Chicago with several members of his street gang, the Gangster Disciples. Suddenly, a car drove up, and four men got out and began shooting at the group. No one was injured, however. Lowe recognized one of the shooters as “Big Stuff,” a member of the Vice Lords, a rival gang.

At approximately 7 p.m. that evening, while Lowe was discussing the incident with fellow gang member Robert Hawkins at the corner of 64th and Seeley, defendant, “the right hand man” to “Santana,” the leader of their gang, walked up and joined the conversation. Defendant said that “something had to be done about” the shooting and that they “had to take care of Nation business,” and then produced a revolver from his waist. After checking to make sure it was loaded, he and Hawkins started walking toward the comer of 65th and Damen Avenue. Defendant then handed the gun to Hawkins.

Meanwhile, the decedent, Ricky Lee Moore, was standing at a pay phone outside a restaurant on the corner of Marquette (67th) and Damen. He was talking on the phone to Ricky Campbell, a friend who had paged him about 45 minutes earlier in order to make plans for the evening. Throughout their conversation, various girls would take the receiver from Moore and speak to Campbell. Later, as Moore was speaking, Campbell suddenly “[h]eard the receiver of the phone hit up against some steel.” After waiting about three minutes for his friend to resume the conversation, a “young lady picked up the phone and said the guy [he] was talking to *** was just shot in the head.”

At the same time, Michael Clark walked out of his house at 6629 S. Damen to speak with some neighbors about the lottery drawing he had just watched on television. As he spoke with his neighbors, Clark heard a “pop, like a firecracker” coming from the corner of the block at Marquette and Damen. Clark spun around to see what had happened but, at first, saw nothing. A moment later, however, he noticed two men wearing baseball caps running towards him and away from the corner restaurant. One of the men was approximately 6 feet tall and was wearing a blue jacket and jogging suit. The other man was shorter, about 5 feet 7 inches, and was wearing a blue, “silk-like” jogging suit. As he ran by, Clark saw the taller one tuck a gun into his pants. Clark walked to the corner where he saw a body lying on the ground near a pay phone. He then told a police officer what he had seen.

About 15 minutes later, defendant returned to the corner of 64th and Seeley, breathing heavily. Lowe asked defendant where Hawkins was, but defendant stated that he did not know. Defendant then told Lowe that he instructed Hawkins “to get the one on the phone [while] he *** [got] the one that was walking.” Defendant said that after Hawkins shot the person at the pay phone, they both ran away.

A few minutes later, defendant was seen running in the area of 64th and Seeley by Chicago police officer James Ochoa. Having just heard the radio description of the suspects in the shooting, Ochoa arrested defendant because he fit the description, placed him in the back of the squad car, and brought him to Clark’s house. There, Clark identified defendant as the shorter of the two men he had seen running from the corner. Later that evening, Clark went to the police station and again told the officers what he had witnessed. After speaking to the officers for approximately 20 minutes, Clark identified defendant from a photo array. Defendant was detained and questioned at the station, but was released when it was determined that insufficient evidence existed to charge him at that time.

Two days later, on May 20, 1990, defendant and Hawkins went to Lowe’s house in the afternoon. Defendant told them not to talk about what happened “or [they] knew what would happen to [them].” Lowe understood this to mean that harm would come to them or their families if they told about the shooting.

On May 21, 1990, Hawkins was arrested for the shooting. At that time, Hawkins told the police that defendant gave him the gun and told him that Santana ordered that he kill Moore, or be “violated” by the gang. Hawkins also told the police to find Lowe, because he would corroborate his story. After the police questioned Lowe, they arrested defendant for the murder of Ricky Lee Moore.

On February 15, 1991, Hawkins pled guilty to the murder and was sentenced to 29 years’ imprisonment. During those proceedings, the State entered a statement of facts into the record which named defendant as his accomplice and made no mention of Lowe. Hawkins swore at that time that the stated facts were true and that his plea was voluntary. At defendant’s trial, however, Hawkins asserted that he agreed to the plea bargain only because he feared receiving a harsher sentence following a trial, and that in order to accept the State’s offer, he was required to accept its statement of facts as true. Hawkins further testified that Lowe, rather than defendant, handed him the gun and accompanied him as he walked to the corner to shoot Moore.

As previously noted, defendant was found guilty of first degree murder and sentenced to 40 years in prison. This appeal followed.

Defendant first contends that the circuit court erred in concluding that the State’s proffered explanations for four of its peremptory challenges against black veniremembers were sufficiently race-neutral under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. The State responds that defendant has waived this issue by failing to include it in his post-trial motion even though a timely objection was made at trial. In the alternative, the State argues that defendant failed to satisfy his burden of establishing a prima facie case of discrimination, and that the reasons proffered by the State were nevertheless sufficiently race-neutral.

During voir dire, after the State had used its fourth and fifth peremptory challenges to exclude two black women, defense counsel pointed out to the court that neither prospective juror gave an indication that she was prejudicial to either side. The court then instructed the State to give “race neutral reason [sic] for all black jurors” that it had already excused and those it would excuse in the future. When the assistant State’s Attorney asked the court if it was making a finding that a prima facie case of discrimination existed, the court responded by stating that it was requiring the State to provide appropriate explanations for each of its peremptory challenges. The State then proffered explanations for each of its peremptory challenges against the four black venirepersons. The circuit court accepted the explanations as sufficiently race-neutral and denied defendant’s Batson motion.

During selection of alternate jurors, the State excused another black woman. The court accepted the State’s explanation and again denied defendant’s Batson motion. At the end of voir dire, the circuit court summarized the proceedings: two jurors were excused for cause, one white and one black; five of the State’s seven peremptory challenges were against blacks and the other two were against whites; six of eight venirepersons excluded by defendant were white, one was black, and one was Latino. Including the two alternates, the jury was composed of 12 whites, one black, and one Latino. The court also stated that both defendant and the decedent, as well as all the civilian witnesses expected to be called, were black.

The United States Supreme Court set out in Batson a two-step mechanism to determine whether the State violated the equal protection clause by using its peremptory challenges to exclude potential jurors from the venire on the basis of race. (Batson, 476 U.S. at 96-98, 90 L. Ed. 2d at 87-89, 106 S. Ct. at 1722-24; accord People v. Andrews (1992), 146 Ill. 2d 413, 424, 588 N.E.2d 1126, 1133.) First, the defendant must make a prima facie showing that the State exercised its peremptory challenges in a racially discriminatory manner. (Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1722-23.) If he is successful, the burden shifts to the State to provide racially neutral explanations for striking each juror in question. (Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723-24.) The court must then consider those explanations and determine if purposeful discrimination occurred. Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1724.

It is well settled that both a contemporaneous objection and a post-trial motion are necessary to preserve an issue for appeal. (See People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Although defendant objected during voir dire to the State’s use of its peremptory challenges, he failed to include the Batson issue in his post-trial motion. We therefore conclude that defendant has waived the issue for purposes of appellate review. For the reasons that follow, however, defendant's assertion of a Batson violation fails under plain error analysis as well.

Because the circuit court ruled on the ultimate issue of whether valid reasons existed for the State’s exercise of its peremptory challenges, we need address only the propriety of that finding despite the fact that no express finding of a prima facie case of discrimination was ever made. Once the State provides race-neutral explanations for its peremptory challenges and the court rules on the existence of purposeful discrimination, the preliminary question of whether defendant established a prima facie case becomes moot. (See Hernandez v. New York (1991), 500 U.S. 352, 358, 114 L. Ed. 2d 395, 405, 111 S.Ct. 1859, 1866; People v. Mitchell (1992), 152 Ill. 2d 274, 289, 604 N.E.2d 877, 886, cert. denied (1993), _ U.S. _, 124 L. Ed. 2d 685, 113 S. Ct. 2936.) Although we conclude that the issue is moot, we believe it necessary to stress that in the future, the circuit court must take care to avoid “collapsing *** [the] methodical Batson hearing procedure into an undifferentiated review of defense and State contentions.” People v. Garrett (1990), 139 Ill. 2d 189, 201, 564 N.E.2d 784, 789-90.

In order for the State to rebut the charge of intentional discrimination, its explanations must be clear, reasonably specific, and legitimate. (Mitchell, 152 Ill. 2d at 291, 604 N.E.2d at 887.) Although mere assertions of good-faith or nondiscriminatory motive will not rebut a prima facie case, the explanations need not rise to the level of a challenge for cause. (People v. Harris (1989), 129 Ill. 2d 123, 174, 544 N.E.2d 357, 379, cert. denied (1990), 494 U.S. 1018, 108 L. Ed. 2d 498, 110 S. Ct. 1323.) Instead, the explanation need only be subjectively neutral. (People v. Kindelan (1991), 213 Ill. App. 3d 548, 555, 572 N.E.2d 1138, 1142, appeal denied (1991), 141 Ill. 2d 552, 580 N.E.2d 126.) Furthermore, a circuit court’s determination of the ultimate question of discriminatory intent is a question of fact which is entitled to great deference and will not be overturned on appeal unless it is contrary to the manifest weight of the evidence. Harris, 129 Ill. 2d at 175, 544 N.E.2d at 380.

In the instant case, the circuit court accepted the State’s explanations as racially neutral for the exclusion of the five black veniremembers, thereby rejecting defendant’s Batson claim. On appeal, defendant asserts that the court’s conclusion was against the manifest weight of the evidence with regard to four of those jurors. We do not agree.

The State explained that it excused Elaine Sappington because her brother-in-law, with whom she spoke “quite often,” was a deputy sheriff in the Cook County criminal court complex. In response to the court’s question, Sappington stated that she did not know which building he worked in at that time, but that he had been assigned to the Cook County jail in the past. The State argued that because her brother-in-law may have had contact with defendant while he was incarcerated, Sappington might acquire information about defendant or his case from an inappropriate source. Defendant asserts that the explanation was pretextual because the State failed to ask supplemental questions in order to clarify which building her brother-in-law worked in, and because the State accepted other white jurors who had friends or relatives in law enforcement with whom they spoke.

We believe that any further questioning of Sappington would have been fruitless because she clearly stated that she did not know where her brother-in-law was assigned. Furthermore, while it is true that several other prospective jurors had close connections to persons in law enforcement, the record does not show that any of the others had an opportunity to hear about this particular defendant from an extrajudicial source. The mere fact that a portion of the State’s explanation may have been applicable to a white juror who was not challenged will not render the State’s explanation pretextual, for the white juror may have exhibited some other trait which made that juror desirable as a juror. People v. Andrews (1993), 155 Ill. 2d 286, 295, 614 N.E.2d 1184, 1189-90; People v. Young (1989), 128 Ill. 2d 1, 23-24, 538 N.E.2d 453, 458-59.

With respect to Clarence Stanley, the State explained that he was excused because it found it “extremely peculiar” that a 45-year-old man did not know the ages or occupations of his children. During voir dire, Stanley stated that he was divorced and worked as a doorman at a northside building. This exchange then occurred:

“Q. And do you have any children?
A. I have three kids.
Q. And what are their ages?
A. They are with their mother.
Q. Do you know what they do?
A. I sure don’t.”

While the record does not expressly demonstrate that he did not know the ages of his children, it does support the conclusion that he did not know what his children did for a living.

Defendant asserts that the proffered explanation was pretextual because the prosecutors never asked Stanley any additional questions in order to clarify their concerns. (See People v. Powell (1991), 224 Ill. App. 3d 127, 134, 586 N.E.2d 589, 596, appeal denied (1992), 144 Ill. 2d 640, 591 N.E.2d 29 (holding that the court must determine if an attempt was made to uncover unknown information when the State's explanation rests on insufficient information about the prospective juror).) In Powell, the State excused a black woman who, in response to a question regarding her children, failed to mention two of her six children. The State asserted that her answer was evasive and that she was purposefully withholding information. The circuit court ruled that such an explanation was race-neutral. The appellate court reversed, holding that the proffered explanation was merely pretextual because the State did not probe the issue and therefore the record was insufficient to rebut the prima facie case of discrimination. Powell, 224 Ill. App. 3d at 135, 586 N.E.2d at 596.

Powell is distinguishable on its facts. There, the State’s rationale was based on an assumption that could be proved or disproved easily with supplemental questions, i.e., whether the juror was being evasive about her other two children or merely overlooked them when answering the question. In the instant case, however, while supplemental questions would establish whether or not Stanley knew his children’s ages, such questions could not clarify what they did for a living, as he clearly stated that he did not know. Therefore, any attempt to question Stanley regarding this basis would have been pointless. Because “Illinois courts have recognized that a challenge based upon the particulars of a venire member’s family history is valid” (Andrews, 155 Ill. 2d at 298, 614 N.E.2d at 1191), we hold that the State’s proffered explanation was sufficiently race-neutral.

Finally, the State explained that it excused Barbara Brooks and Lisa Moore because both lived in an area near the El Rukn mosque. The assistant State’s Attorney stated that he was concerned that they might not be impartial jurors because he did not know what their impressions or opinions of gangs might be since they lived in that area.

The law is well settled that a prospective juror properly may be excused if she lives in an area with particular attributes which the State considers undesirable for a juror. (People v. Johnson (1991), 218 Ill. App. 3d 967, 983-85, 578 N.E.2d 1274, 1285-86, appeal denied (1991), 142 Ill. 2d 659, 584 N.E.2d 135 (holding that no Batson violation occurred when the State excused a potential juror for the stated reason that he lives and works in high-crime area and would therefore, in the prosecutor’s opinion, not be a fair and impartial juror); see also Harris, 129 Ill. 2d at 176-78, 544 N.E.2d at 380-81 (affirming the circuit court’s finding, but not agreeing with its truth, that the State’s proffered explanation for excluding a juror because she lived in Hyde Park where the residents are “more scholarly and open to new ideas than other Chicagoans,” as sufficiently race-neutral).) In the instant case, the two women were excluded because they lived in an area with considerable gang activity. In light of Johnson and Harris, we believe that the circuit court properly determined that the State’s explanation was race-neutral, particularly where much of the evidence to be presented at trial involved gangs and gang activity.

Accordingly, we conclude that the circuit court’s finding that no Batson violation occurred was not against the manifest weight of the evidence.

Defendant also contends that the circuit court erred when it refused to define the term “aiding and abetting” after the jury sent a note requesting a definition. After the evidence was presented, the jury was instructed on the applicable law, including an instruction on accountability. A short time after it began deliberating, the jury sent a note to the court requesting either a picture or description of Santana. In response, the court instructed the jury, with everyone’s agreement, that it had heard all the evidence and should continue to deliberate. Approximately 35 minutes later, the jury sent another note, requesting:

“1. [A] copy of the oath that we took.
2. [A] definition of
a. Aiding and Abetting
b. Reasonable Doubt.”

The court responded by supplying the jurors with a copy of the oath and by telling them: .

“Number Two: Common definition applied to the word used in the instruction. The Supreme Court recommends that no instruction be given on the meaning of reasonable doubt.”

When asked by the court for comments on its response, defense counsel stated that she had “[n]o objection.” The jury continued to deliberate and found defendant guilty of first degree murder.

Defendant asserts that because the issue of accountability was central to the State’s case, the court’s failure to respond adequately to the jury’s request caused him to be substantially prejudiced. He also maintains that because the evidence was closely balanced, and because the word “abet” is not part of a typical vocabulary, the court abused its discretion by failing to provide the definition to the jury. The State first responds that defendant has waived this issue for purposes of appeal because he failed to make a timely objection to the court’s response and to include the issue in his post-trial motion. In the alternative, the State maintains that the court’s response was a proper exercise of discretion.

Although a circuit court should attempt to clarify the jury’s question regarding a specific point of law over which there is doubt or confusion (People v. Jackson (1980), 89 Ill. App. 3d 461, 479, 411 N.E.2d 893, 906), the court may, in its discretion, refrain from doing so if the given instructions are readily understandable and sufficiently explain the relevant law. (See People v. Reid (1990), 136 Ill. 2d 27, 39, 554 N.E.2d 174, 179.) Furthermore, “[w]here a defendant acquiesces in the circuit court’s answer to the jury’s question, the defendant cannot later complain that the circuit court abused its discretion.” (Reid, 136 Ill. 2d at 38, 554 N.E.2d at 179.) Therefore, because defendant neither objected to the court’s response, nor raised it in his post-trial motion, he has waived this issue for purposes of appeal.

Moreover, even if the issue were properly preserved, defendant’s arguments would be unavailing. The record before us does not support the conclusion that the jury was confused regarding the definition of “abet.” The question was asked only once, and upon being told to apply the common definition, the jury was able to proceed and reach a verdict. This court has held that it is not an abuse of discretion to deny a jury’s one-time request for a clarifying definition. (People v. Waldron (1991), 219 Ill. App. 3d 1017, 1040-41, 580 N.E.2d 549, 565-66 (holding that the circuit court properly exercised its discretion when it responded to the jury’s one-time request for the definition of “intent” by referring back to the original instructions).) No abuse of discretion occurred here.

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

Affirmed.

HARTMAN and SCARIANO, JJ., concur.

       defendant does not contest the propriety of the court’s finding that race-neutral reasons existed for the State’s exclusion of venireperson Beverly Wellington since she lived in the vicinity of the scene of the crime. See People v. Hooper (1989), 133 Ill. 2d 469, 509-10, 552 N.E.2d 684, 701, cert. denied (1990), 498 U.S. 911, 112 L. Ed. 2d 239, 111 S. Ct. 284 (holding that the State may properly exclude a prospective juror because of geographic proximity to either the crime scene or the defendant’s residence).


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRELL WILKINS, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—0913
    Opinion filed August 26, 1993.

      Rita A. Fry, Public Defender, of Chicago (Mary C. Arundel, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica Calderon, and Marcia G. Northrup, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Darrell Wilkins, was tried separately but simultaneously with two codefendants in the circuit court of Cook County. Following defendant’s bench trial, he was convicted of delivery of a controlled substance (111. Rev. Stat. 1987, ch. 5Q1k, par. 1401(a)(2)), and sentenced to a prison term of 1 &-I2. years. On appeal, defendant contends (1) the trial court erred in denying his pretrial motions; (2) the trial court improperly denied his motion for a continuance; (3) he was not proved guilty beyond a reasonable doubt; (4) the trial court improperly admitted hearsay evidence; and (5) he was prejudiced by the State’s failure to disclose that the informant had been paid.

We affirm.

At trial, police officer Claude Kaysen testified that on December 29, 1988, he was working in an undercover capacity when he met defendant at a restaurant to discuss a drug transaction. When defendant arrived at the restaurant, confidential police informant Steve Bouchet, also known as Steve Glover, introduced Kaysen to defendant as “Jeff.” After exchanging greetings, defendant informed Kaysen that he was carrying two kilos of cocaine inside his coat. Kaysen suggested defendant find something else to carry the cocaine in, after which defendant made a telephone call and then left the restaurant. When defendant returned moments later carrying a plastic bag, he and Kay-sen began discussing the purchase price.

Defendant stated that his father, who owned the cocaine, wanted $20,000 per kilo. He also stated that if the transaction went smoothly, Kaysen could purchase cocaine for $15,000 per kilo in the future. Rejecting defendant’s offer, Kaysen suggested that defendant arrange a lower purchase price. Defendant made another call using Kaysen’s mobile telephone and spoke with someone about the price. Subsequently, defendant and Kaysen went to the bathroom where they tested the cocaine. Defendant and Kaysen later left the restaurant and met on a street corner two blocks away. There Kaysen told defendant he was not ready to make the purchase and the two exchanged telephone numbers before leaving.

On January 3, 1989, Kaysen spoke with defendant twice by telephone concerning the drug buy; however, they could not agree upon a price. During one of these conversations, defendant discussed the sales price with his father and, according to Kaysen, he overheard defendant’s father ask defendant, “how do you know that he’s [Kay-sen] not the police working undercover?” Kaysen unsuccessfully attempted to contact defendant two days later but learned that defendant’s telephone had been disconnected.

On January 23, 1989, defendant contacted Kaysen and the two agreed to meet at a restaurant later that afternoon. The informant was also present at this meeting. At the restaurant, Kaysen asked defendant about his whereabouts since their last meeting. Defendant stated he had been in Florida conducting cocaine business with his father. After some discussion, defendant told Kaysen the cocaine would cost $23,000 per kilo. Kaysen agreed, but said he needed time to get more money. Defendant said he would contact Kaysen on his pager once a meeting place had been selected.

Defendant contacted Kaysen later that evening and they agreed to meet in a restaurant parking lot located on South Racine Avenue, in Chicago. When defendant arrived, he approached Kaysen’s car and stated he had to count the money before having the cocaine brought over. Kaysen refused to remove the money from the trunk and the two went inside the restaurant. After some discussion, defendant made a telephone call and then told Kaysen his father would send over the cocaine and notify them by signaling defendant’s pager. When defendant’s pager rang, he and Kaysen went outside to the parking lot.

Once outside, defendant patted Kaysen down for a wire before entering Kaysen’s car. Moments later, defendant exited the car and walked over to a light blue truck parked nearby. Defendant soon returned to Kaysen’s car and made several calls, using Kaysen’s mobile telephone. Thereafter, defendant again exited the car, after which Kaysen, using a police radio, requested that the surveillance vehicle parked across the street be moved as defendant indicated that he thought it was a police vehicle.

Moments later, defendant returned to the gas station across the street, riding in the blue truck which was followed by a brown car. Defendant and his codefendants exited the two vehicles and stood talking at the gas station. Then, defendant and a codefendant crossed the street and approached Kaysen’s car. They asked to count the money, but Kaysen refused stating that defendant had already done so. Defendant and the codefendant went back across the street and defendant retrieved a brown bag from the driver of the truck. Defendant entered the brown car, which was then driven across the street and parked near Kaysen’s car. Defendant entered Kaysen’s car and handed him the bag containing two kilos of cocaine. After opening the packages, Kaysen gave the pre-arrest signal and the surveillance officers arrested defendant. The informant was not present when the transaction took place.

Also at trial, defendant’s mother testified that during every weekend in 1988 she lived with defendant and his wife and son in a apartment on Erie Street in Chicago. Likewise, defendant’s wife also testified that she lived with defendant in the same apartment until January 1989. Defendant’s wife and mother each stated that during the latter part of 1988 defendant often received telephone calls from a person named Steve.

In his defense, defendant testified that he met the confidential informant in the fall of 1987. Defendant was unemployed for approximately four months in the beginning of 1988. During this time, the informant told defendant he could earn extra money if he would attend a few parties hosted by the informant and sell drugs to the guests. Defendant refused despite the informant’s repeated requests.

Defendant further testified that in June 1988 he borrowed $450 from the informant. Five months later, after defendant had failed to repay the loan, the informant told defendant the debt had increased to $1,500. In December 1988, the informant told defendant that he would excuse the debt if defendant would find cocaine for him and his brother-in-law. Defendant testified that he contacted his uncle, who agreed to give defendant the cocaine. Defendant met the confidential informant and his brother-in-law, Jeff, at a restaurant later that same night.

Following his bench trial, defendant was found guilty of delivery of a controlled substance. The trial court later denied his motion for a new trial. The trial court sentenced defendant to I6V2 years in the Illinois Department of Corrections. Defendant then filed this appeal.

Defendant first contends that the trial court erred in denying his pretrial motions requesting that the State produce the informant and that the State demonstrate it made a good-faith effort to locate the informant. The State responds that it had no obligation to produce the informant or establish it made a good-faith attempt to locate the informant because defendant failed to establish the need for disclosure.

At the outset, we note that, while defendant claimed he was entrapped by the informant, this case does not involve the nondisclosure of the informant’s existence or identity. Defendant acknowledges that he was aware of the informant’s name prior to trial, and that the State had provided him with the informant’s last known whereabouts. In dispute, however, is whether the trial court’s failure to require the State to show it made a good-faith effort to locate the informant or to produce the informant violated defendant’s due process rights.

Before the State is obliged to produce an informant, or to show that it made a good-faith effort to locate the informant, defendant must first establish the materiality and relevance of the informant’s testimony. (People v. Torres (1989), 189 Ill. App. 3d 494, 501.) Here, defendant argues that he sufficiently demonstrated the relevance of the informant’s testimony. Based on the evidence, we cannot agree. No evidence was presented indicating that the informant either participated in the crime or was present near the scene of the crime when defendant was arrested. This leads us to believe that the informant’s testimony would have done little to aid defendant’s theory of defense. See People v. Hodges (1987), 159 Ill. App. 3d 38, 41.

Moreover, unlike the defendant in People v. Connor (1988), 176 Ill. App. 3d 900, defendant here offered no credible evidence or specific details to support his allegation that he was entrapped. We agree with the trial court that defendant’s mere speculation of the informant’s exculpatory statements was insufficient to grant defendant’s pretrial motions. Hence, we hold that the trial court properly denied defendant’s pretrial motions.

Second, defendant argues that the trial court erred in failing to grant him a continuance to locate the informant. Defendant asserts the trial court abused its discretion because it failed to rule on his pretrial motion to disclose the informant’s identity in a timely manner, and he was given only four days in which to locate the informant.

Motions for a continuance are addressed to the sound discretion of the trial judge whose ruling will not be disturbed unless a clear abuse of discretion is shown. (People v. Amos (1990), 204 Ill. App. 3d 75, 83.) An abuse of discretion cannot be found where the defendant fails to show that he was prejudiced by the lack of additional time. (People v. Coleman (1990), 203 Ill. App. 3d 83, 100.) Here, we are unpersuaded that defendant was in any way prejudiced by the trial court’s denial of a continuance. The evidence supports the trial court’s determination that the informant was not transactional and, as such, his testimony would have done little to aid defendant’s defense. (See People v. Hodges (1987), 159 Ill. App. 3d 38, 41.) Moreover, the trial court ruled, based on the circumstances before it, that the informant was not within the control of either party and could not be located. Under these facts, we find no abuse of discretion in the trial court’s denial of the motion for continuance.

Next, defendant contends that the State failed to prove him guilty beyond a reasonable doubt by its failure to disprove the evidence of entrapment. Pointing out that he lacked any prior drug convictions, defendant argues that he sufficiently raised the defense of entrapment which the State was required to prove the absence thereof. In response, the State maintains that defendant’s conviction should be affirmed because the evidence supports the trial court’s finding of guilt.

Where a defendant has properly raised the defense of entrapment, the prosecution must then prove the nonexistence thereof before defendant can be convicted. (Ill. Rev. Stat. 1987, ch. 38, par. 7— 12.) (See also People v. Gannon (1991), 213 Ill. App. 3d 560, 565.) Whether defendant was entrapped or merely afforded an opportunity to commit an offense is determined by the trier of fact. (People v. Tipton (1980), 78 Ill. 2d 477, 487.) Following a conviction, a reviewing court must affirm where, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) This same standard of review is applicable to entrapment cases. Gannon, 213 Ill. App. 3d at 565.

In the case at bar, the trial court determined that defendant had not properly raised the defense of entrapment as there was no credible evidence presented in support of the defense. The trial court found the testimony by defendant and his mother and wife to be unbelievable. Undoubtedly, the trier of fact determines the credibility of witnesses. (People v. Saunders (1990), 206 Ill. App. 3d 1008, 1013.) Based on our review of the record, we find that the evidence, when viewed in the light most favorable to the prosecution, supports the trial court’s finding of guilt.

Defendant also argues that he was prejudiced by the trial court’s admission of testimony regarding what Officer Kaysen overheard during a telephone conversation with defendant on January 3, 1989. At trial, Officer Kaysen testified as to what defendant’s father had said during Kaysen’s conversation with defendant. While defendant objected to this testimony at trial, he failed to raise the issue in his post-trial motion; therefore, he has waived this issue on appeal. People v. Enoch (1988), 122 Ill. 2d 176, 186.

Finally, defendant argues that the State committed prejudicial error by failing to disclose the fact that the informant had been paid. Defendant asserts a new trial is warranted because the State’s failure to do so impacted his tactical decision to waive his right to a jury trial.

In response, the State correctly notes that when defendant was made aware that the informant had been paid he failed to take any affirmative action at the trial concerning the discovery violation. Where a defendant learns that the prosecution has failed to disclose requested discovery information, he must either seek a continuance or request appropriate sanctions; otherwise, the issue is waived. People v. Williams (1980), 91 Ill. App. 3d 631, 633.

Notwithstanding the waiver rule, Supreme Court Rule 615(a) provides that plain error or defects affecting substantial rights may be considered although they were not brought to the attention of the court. (107 Ill. 2d R. 615(a).) However, the plain error rule may be invoked in criminal cases only where the evidence is closely balanced or the error was of such magnitude as to deny defendant a fair trial. (People v. Young (1989), 128 Ill. 2d 1, 47.) In light of the strong evidence of defendant’s guilt, and the absence of any evidence in the record that he was denied a fair trial, we consider the plain error doctrine inapplicable here.

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

Affirmed.

JIGANTI, P.J., and HOFFMAN, J., concur.


text:
      In re MARRIAGE OF MARGARET H. CAMPBELL, Petitioner-Appellee, and THOMAS CAMPBELL, Respondent-Appellant.
    First District (3rd Division)
    Nos. 1—91—2189, 1—91—4050, 1—92—4315 cons.
    Opinion filed August 11, 1993.
    Modified on denial of rehearing November 17, 1993.
   In re Marriage of Campbell, Nos. 1—91—2189, 1—91—4050, 1—92—4315 cons., originally published at 252 HI. App. 3d 653, was subsequently withdrawn and vacated by court order dated December 14,1994.