text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC HOSKINS et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1 — 89—0050,1—89—0158 cons.
    Opinion filed September 7, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Mark Floyd Pasterski, Assistant Public Defender, of counsel), for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Jeanette Sublett, and Elizabeth A. McDevitt, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a bench trial, defendants, Eric Hoskins and Gary McWilliams, each were found guilty of two counts of aggravated criminal sexual assault. Hoskins was sentenced to 25 years’ imprisonment, and McWilliams was sentenced to eight years’ imprisonment. In their consolidated appeal, defendants contend that they were not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault because complainant consented to sexual intercourse with them. Additionally, McWilliams contends that the trial court improperly used an accountability theory to find him guilty of the aggravated criminal sexual assault committed by Hoskins, as charged in count VII of the indictment. Similarly, Hoskins contends that the trial court improperly held him accountable for the acts of aggravated criminal sexual assault committed by McWilliams, as charged in count I of the indictment.

The pertinent facts are as follows. Complainant testified that on October 30, 1987, she was with her two children, her friend, Geneva, and Geneva’s two children. At approximately 11:45 p.m., complainant dropped her children off at her house and she, Geneva, and Geneva’s children proceeded to Geneva’s house. Complainant waited outside while Geneva put her children to bed.

While complainant was waiting, a man approached and asked her for a match. She replied that she did not have one. Complainant did not know the man prior to that evening. It later was determined that his name was Briscoll. (Briscoll is not involved in this appeal.) Complainant believed Briscoll had walked away, but he came around her, grabbed her arm, covered her mouth, and pulled her into a building on the corner of 76th and Union Streets. Briscoll pulled complainant through the front door and down into the basement. Complainant screamed as he did so.

Briscoll pulled her into a bedroom and began to hit her. He ordered her to take her clothes off, and when she refused to do so, he hit her and pulled her hair. Complainant took her clothes off, but Briscoll continued to hit her. Briscoll pulled complainant onto the bed and forced her to perform oral copulation. Complainant was crying.

At this point, Hoskins entered the room. Hoskins took his clothes off and slapped complainant down onto the bed. He hit her on the face and put his penis into her mouth. Hoskins then forced complainant to have vaginal intercourse with him. Complainant screamed and cried during this time. Hoskins and Briscoll told her to shut up. When she failed to do so, both men beat her with a belt. They struck her on her back, her arms and her legs. They gagged her with a scarf and tied her hands behind her back with socks. Throughout this time, Hoskins and Briscoll were getting high and drinking beer. They poured beer over complainant’s head and blew cocaine smoke into her face.

McWilliams entered the room and asked Briscoll and Hoskins what they had. Briscoll asked McWilliams if he “want[ed] some.” McWilliams threw the complainant onto the bed and hit her. He then forced her to have vaginal intercourse. Complainant stated that she begged him to stop and to help her.

After this episode, she was allowed to put on a shirt. Hoskins and Briscoll took her upstairs to the front room. There were five men present in the room, McWilliams, Hoskins, Briscoll, Black and Jones. Briscoll hit complainant again, and forced her to perform oral copulation. The four other men watched and laughed. When Briscoll finished, Hoskins took complainant to a downstairs bedroom. Briscoll entered the room, pulled the complainant into the hallway and again forced her to perform oral copulation.

McWilliams came downstairs. Complainant testified that he pulled her head back, stood her up and opened the door to a room. Complainant told him that she would not enter the room, but Briscoll forced her to do so. McWilliams pushed her down onto the bed and told her to lie down. McWilliams got on top of complainant and forced her to have vaginal intercourse. While he was doing so, Briscoll again forced her to perform oral copulation. McWilliams then left the room.

In the back bedroom the following morning, Briscoll forced complainant to perform oral copulation. Complainant then was allowed to dress, and Briscoll took her to Hoskins’ room. Hoskins held complainant in his room while Briscoll escaped. Hoskins held complainant for approximately 30 minutes and then released her. Complainant stated that after her release, she walked to her home. She immediately told her fiance, William Rutledge, and he so testified, that she had been raped and told him where it occurred. Rutledge helped her to the bathtub. When she got into the tub, she and Rutledge noticed bruises all over her shoulders, back and legs. Rutledge also noted that complainant’s face was swollen on the left side.

Officer Elijah Harris testified that on October 31, 1987, he was sent to her home to speak to complainant. She was upset and crying. She informed him that she had been raped by three men at 76th and Union Streets. Harris called for additional officers. The officers proceeded to the building with complainant. As they approached the building, two men came across the street. Complainant identified one as McWilliams. McWilliams and Cornelius Black, a resident of the building, were taken into custody.

Detective Martin Tully testified that he took part in the investigation at 746 W. 77th Street. After speaking to other officers, complainant, and Rutledge, Tully proceeded to 7658 South Union Street. He found Hoskins hiding in the storage area in the basement under a pile of debris. Hoskins was placed under arrest. Tully remained in the house with complainant after the arrests took place. He walked through the house with complainant as she described what happened in the various areas of the house. Tully recovered a black leather belt with a silver buckle from one of the bedrooms.

Complainant was taken to the emergency room at Little Company of Mary Hospital. Patricia Lee, a staff nurse, testified that she examined the victim. The complainant informed Lee that she had been assaulted both vaginally and orally by three assailants from midnight of October 30 until noon on October 31. When complainant disrobed, Lee observed that complainant had bruises on her left upper arm, left shoulder blade, and right thigh. Lee noted no bruises, abrasions or cuts about complainant’s facial area. Lee was present as a physician took vaginal and oral specimens for a Vitullo kit.

The parties stipulated that if Christine Anderson, a Chicago police department serology expert, were called to testify she would state that she tested vaginal smears and swabs from the Vitullo kit taken at the hospital. The smear specimen marked vaginal tested positive for spermatozoa. The smear and swab marked oral tested negative for spermatozoa or sperm.

Cornelius Black testified for the defense that he lived at 7658 Union with Hoskins, Jones, McWilliams and Woods. On the day of the incident, he was in the upstairs area of the house. He testified that he saw Briscoll upstairs with a young lady. She was sitting on the end of the sofa. She was whimpering and quite likely was crying. Later, the girl was offered to Black for sex. At this time, she did not have clothes on and she was whimpering. Black did not see the young lady being forced by Briscoll to perform fellatio.

On rebuttal, Detective James Cloonan testified that when he spoke to Black, Black stated that Hoskins and the “other dude” came upstairs with a girl. The girl was nude, crying and asking for help. Black also told Cloonan that the girl was forced to perform fellatio with Briscoll.

William Woods testified for the defense that on the date of the incident, he lived at 7658 South Union on the first floor. At approximately 9 p.m., he heard someone knocking on the door and he started to answer it. A young lady came out of the basement and started walking towards him. She asked where the front door was and he told her. The young lady then let Hoskins into the house and went downstairs with Hoskins. (On rebuttal, complainant denied this.) Woods left the house at 10 p.m. and returned at 2 a.m. When he returned, there was no one in the living room. Woods identified complainant as being the young lady he saw that evening. He admitted that defense counsel had shown him a picture of complainant prior to his testimony.

In their appeal, defendants first contend that they were not proved guilty of aggravated criminal sexual assault beyond a reasonable doubt. They maintain that complainant consented to the sexual acts which occurred that evening. Our review of the record reveals no support for defendants’ contention.

A reviewing court will not reverse a conviction unless, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) It is the function of the trier of fact to determine the credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247; People v. Ahern (1983), 119 Ill. App. 3d 532, 456 N.E.2d 852.) When there is a conflict in the testimony, it is the duty of the trier of fact to resolve the conflict and to determine which witnesses are credible. People v. Rynberk (1980), 92 Ill. App. 3d 112, 415 N.E.2d 1087.

Moreover, a conviction for aggravated criminal sexual assault, where defendant denies the charge, will be upheld when there is either some corroboration of the prosecuting witness or where that testimony is otherwise clear and convincing. (People v. Geneva (1990), 196 Ill. App. 3d 1017, 554 N.E.2d 556.) If the complainant’s testimony is clear and convincing, her testimony alone will suffice to sustain the conviction. (People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019; In re C.K.M. (1985), 135 Ill. App. 3d 145, 481 N.E.2d 883.) The testimony of the complaining witness, however, need not be perfect in order to be deemed clear and convincing. (People v. Nelson (1986), 148 Ill. App. 3d 811, 499 N.E.2d 1055; People v. Powell (1985), 138 Ill. App. 3d 150, 485 N.E.2d 560.) Any shortcomings in the complainant’s testimony do not destroy her credibility, but merely go to the weight to be afforded the testimony by the trier of fact. People v. Hutson (1987), 153 111. App. 3d 1073, 506 N.E.2d 779.

Here, complainant’s testimony was clear and convincing, and it was corroborated by other persuasive evidence. Complainant testified that she was dragged into a house by a man named Briscoll. While in the house, she was forced to perform fellatio on both Briscoll and Hoskins on several occasions. She stated that Briscoll and Hoskins hit her and beat her with a belt on her back, her arms and her legs. They gagged her mouth and tied her hands behind her back. Additionally, she was forced to have vaginal intercourse with McWilliams on two occasions. McWilliams slapped her several times. The ordeal continued for 12 hours. Two residents of the house, Black and Woods, admitted that they had seen complainant at the house that evening. Black informed Detective Cloonan that he had witnessed one of the acts of fellatio which complainant had been forced to perform.

When complainant was allowed to leave, she immediately went home and told her fiance that she had been raped. He helped her to the bathtub and noticed bruises all over her body and saw that her face was swollen on the left side. When the police arrived, complainant told them she had been raped by three men and went with them to the scene of the incidents. Complainant identified defendants.

The nurse at the hospital to which complainant was taken observed bruises over complainant’s body. A physician took slides and swabs from complainant’s mouth and vagina. The specimen from complainant’s vagina tested positive for spermatozoa.

In our view, complainant’s testimony established that she had been sexually assaulted by defendants, and that this assault resulted in bodily harm. Complainant’s testimony was corroborated by that of Rutledge, the physician, the nurse, and Officers Tully and Cloonan. Any conflicts with the testimony of Black and Woods were properly resolved by the trier of fact.

Defendants suggest that complainant was at the house that evening in order to exchange sex for cocaine. Defendants point out that complainant testified that at the point Hoskins first entered the bedroom, she was thinking about leaving. Our review of the record reveals no evidence which would support defendants’ argument. The evidence shows only that the complainant was thinking of trying to escape, but was afraid of further beatings.

We believe that the trial court was in the best position to resolve any conflicts in the testimony and to draw proper inferences from that testimony. (People v. Rynberk, 92 Ill. App. 3d 112, 415 N.E.2d 1087.) The evidence amply supports defendants’ convictions.

We next address each defendant’s individual contentions. McWilliams contends that he was improperly held accountable for the acts of Hoskins under count VII of the indictment, and that he was improperly convicted of aggravated criminal sexual assault as he maintains that he did not inflict bodily harm on complainant. Similarly, Hoskins contends that he was improperly held accountable for the acts of McWilliams. Hoskins also contends that he did not inflict bodily harm on complainant.

With respect to McWilliams’ contentions, we find that he was properly convicted of aggravated criminal sexual assault, but that he was improperly held accountable for certain acts perpetrated by Hoskins.

An individual commits aggravated criminal sexual assault when he

“commits criminal sexual assault and any of the following aggravating circumstances existed during the commission of the offense:
* * *
(2) the accused caused bodily harm to the victim ***.” (111. Rev. Stat. 1987, ch. 38, par. 12 — 14(a).)

Bodily harm for purposes of this provision of the statute defining aggravated criminal sexual assault should be defined the same as bodily harm for purposes of the battery statute. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 3(a)(1), 12 — 14(a)(2).) In interpreting the phrase “bodily harm,” our supreme court has noted that although it may be difficult to articulate exactly what constitutes bodily harm, some sort of physical pain or damage to the body, such as lacerations, bruises or abrasions, whether temporary or permanent, is required. People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633. See also People v. Wallace (1986), 145 Ill. App. 3d 247, 495 N.E.2d 665; People v. Boyer (1985), 138 Ill. App. 3d 16, 485 N.E.2d 460.

McWilliams contends that there was no evidence connecting any action on his part to any “bodily harm” sustained by complainant. McWilliams notes that complainant testified that the beatings with the belt were to her back, arms and legs, and were inflicted by Hoskins and Briscoll, not by McWilliams. He further argues that the only allegation of physical injury attributable to his conduct was the allegation that he slapped complainant’s face. McWilliams concludes that this allegation was insufficient to support a finding of bodily harm.

In support of this contention, McWilliams relies on this court’s decision in People v. Boyer. In Boyer, the complainant testified that she had been slapped by the defendant and had experienced pain. Additionally, the complainant’s mother testified that she had observed a bruise on complainant’s leg. We found that because there was no testimony linking any physical harm to the assault, the evidence was insufficient to prove bodily harm. People v. Boyer, 138 Ill. App. 3d 16, 485 N.E.2d 460.

The situation under consideration here is distinguishable from that in Boyer. Complainant testified that McWilliams slapped her several times with an open hand, that he slapped her down onto the bed, and that he forcibly pulled her head back. Her fiance testified that he, when he saw complainant, noticed bruises on her back and swelling on the left side of her face. Thus, complainant presented specific testimony linking a physical injury to McWilliams’ actions.

While the emergency room nurse made no mention of facial injuries, nevertheless, it is the function of the trier of fact to resolve conflicts in testimony and to determine credibility. (People v. Rynberk, 92 Ill. App. 3d 112, 415 N.E.2d 1087.) This court will substitute its judgment for that of the trier of fact on questions involving the credibility of witnesses only when the evidence is so improbable as to raise a question of reasonable doubt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) The evidence here is not so improbable as to raise such a question of reasonable doubt. The trier of fact heard the testimony of complainant, her fiance and the emergency room nurse. Further, a photograph depicting complainant’s face as it was following the incident was entered into evidence. Thus, the trier of fact had sufficient evidence upon which to base its conclusion that McWilliams’ actions resulted in bodily harm to complainant. We will not disturb that conclusion.

McWilliams further contends that the trial court improperly held him accountable for certain acts perpetrated by Hoskins. Defendants were found guilty of count VII of the indictment, which charged defendants with aggravated criminal sexual assault based upon the contact between Hoskins’ penis and complainant’s mouth. McWilliams alleges that he was improperly held accountable for these acts because he did not arrive at the house until approximately one hour after the encounter took place. McWilliams notes that there is no reference in the record to any repeat of this act after his arrival and concludes, therefore, that the conviction for count VII necessarily was based on the act occurring prior to his arrival.

An individual is legally accountable for the conduct of another if, either before or during commission of the offense and with the requisite intent, “he solicits, aids, abets, agrees or attempts to aid” the person in planning or committing the offense. (People v. Martinez (1980), 84 Ill. App. 3d 79, 405 N.E.2d 405; People v. Ware (1980), 82 Ill. App. 3d 297, 402 N.E.2d 762; Ill. Rev. Stat. 1987, ch. 38, par. 5— 2(c).) For purposes of accountability, “conduct” encompasses any criminal act done in furtherance of the planned and intended act. People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29.

It is true that one may aid and abet without actively participating in the offense. (People v. Jones (1989), 184 Ill. App. 3d 412, 541 N.E.2d 132; People v. Bolden (1978), 59 Ill. App. 3d 441, 375 N.E.2d 898.) Nonetheless, the State is unable to cite, and we are unable to find, any case in which a defendant has been held accountable for an offense which he did not contemplate, plan or solicit, and which was committed in his absence. The application of accountability principles in such a situation is erroneous. (See People v. McClelland (1968), 96 Ill. App. 2d 410, 238 N.E.2d 597.) Here, there was no evidence of a common plan or scheme existing prior to McWilliams arrival at the scene. Moreover, McWilliams was not present during the act upon which Hoskins’ conviction was based. Accordingly, McWilliams’ accountability conviction must be reversed. See People v. Ware, 82 Ill. App. 3d 297, 402 N.E.2d 762.

Although we reverse McWilliams’ accountability conviction, we need not remand his cause for resentencing. McWilliams was convicted of a Class X felony (111. Rev. Stat. 1987, ch. 38, par. 12 — 14(c)) and, accordingly, could have received a sentence ranging from 6 years to 30 years (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(3)). Thus, the eight-year sentence which he received was well within the sentencing range, was not excessive, and in fact, was close to the minimum. Our review of the sentencing hearing reveals that the trial court’s focus was on McWilliams’ affirmative acts rather than on any passive role he may have had. The court accurately noted that McWilliams’ actions were inhuman and degrading and said in particular that in reaching this conclusion, it was focusing on McWilliams’ act of forcing complainant to have intercourse with him while she simultaneously was being forced to perform fellatio on Briscoll. Moreover, the trial court expressed surprise that McWilliams could claim he had not forced himself on complainant, when she had bruises, scars and marks. McWilliams’ sentence reflects the trial court’s careful consideration of those factors connected to McWilliams’ actions that evening. We will not disturb the sentence.

We next address the portion of this appeal directed towards Hoskins. Hoskins contends that he was improperly found guilty of the “aggravated” version of count VII, which charged that he sexually assaulted complainant and in so doing caused her bodily harm. He argues that the beating with the belt occurred after the fellatio which forms the basis of that charge, and that the allegation he slapped her with an open hand was' insufficient to support a finding of bodily harm.

Complainant indicated that the beatings with the belt did not occur until after Hoskins forced her to perform fellatio. Nevertheless, complainant testified that during this particular act of fellatio, Hoskins slapped her down onto the bed, hit her on the face, grabbed her by the hair, and hit her again. As discussed above, the trier of fact heard testimony from complainant, her fiance, and the emergency room nurse regarding complainant’s injuries. Additionally, the court saw a photograph which depicted complainant’s face as it was immediately after the assault. In our judgment, the trier of fact was in a better position to assess the testimony and the evidence presented at trial, and to conclude whether the acts resulted in bodily harm. (People v. Jarvis (1987), 158 Ill. App. 3d 415, 511 N.E.2d 813.) We will not disturb that conclusion.

Hoskins also contends that he was improperly held accountable under count I of the indictment for vaginal intercourse which occurred between McWilliams and complainant.

The testimony at trial established that McWilliams forced complainant to have vaginal intercourse with him on two occasions. On the first occasion, Hoskins and Briscoll were in the room. Briscoll invited McWilliams to have intercourse with complainant. Hoskins remained in the room, standing by while McWilliams forced complainant to have intercourse. At one point, Hoskins directed McWilliams not to ejaculate inside complainant because they “d[id]n’t want to leave no traces.”

The second occasion involving vaginal intercourse between McWilliams and complainant occurred several hours later. Complainant testified that in the intervening time, she was forced to have oral sex with Briscoll while Hoskins and McWilliams watched, and that she was forced to have oral sex with Briscoll while Hoskins watched. Hoskins then took complainant to the basement, where McWilliams’ second act of intercourse with complainant occurred. Hoskins was not present in the room when McWilliams perpetrated this act.

A defendant can be held accountable for aggravated criminal sexual assault when he is aware that the commission of the offense is taking place even though there is no evidence he actually participated in the act. (People v. Tyler (1979), 78 Ill. 2d 193, 399 N.E.2d 975; People v. Jones (1989), 184 Ill. App. 3d 412, 541 N.E.2d 132.) Moreover, a defendant can be held accountable in such circumstances even if he is not in the room in which the act is occurring. (People v. Tyler, 78 Ill. 2d 193, 399 N.E.2d 975.) Accountability is appropriate when there is proof that a defendant solicited, aided, abetted, agreed or attempted to aid another in the commission of the offense. People v. Kessler, 57 Ill. 2d 493, 315 N.E.2d 29.

Here, the facts show that Hoskins voluntarily attached himself to a group which had a criminal purpose. Hoskins had full knowledge of the group’s design, and with the knowledge, he joined in the group’s activities. He was physically present when McWilliams first forced complainant to have intercourse, and in fact, facilitated the commission of the crime by McWilliams. Later, Hoskins took complainant to the basement, where McWilliams again forced her to have intercourse. Although Hoskins was not in the room, it is clear that he was aware of the commission of the offense, and again, facilitated its commission by taking complainant to the basement. Hoskins did nothing to disassociate himself from the activities of the group at any time during the 12 hours that complainant was at the house. In fact, Hoskins held complainant while Briscoll escaped. Hoskins later was apprehended hiding in the basement.

The evidence conclusively established that Hoskins saw the crime being committed, assisted in the commission of the crime, and did nothing to disassociate himself. (See People v. Tyler, 78 Ill. 2d 193, 399 N.E.2d 975.) Hoskins’ argument that he erroneously was held accountable is without support in the record.

Hoskins maintains that even if he was properly found accountable for the conduct set forth in count I of the indictment, he was improperly held accountable for the “aggravated” version of that count. Hoskins argues that in order to impose accountability for the “aggravated” version of that count, the State had to prove beyond a reasonable doubt that Hoskins intended that the beating which occurred during the commission of the acts charged in count I facilitate a later episode of intercourse with McWilliams.

This argument is without merit. Defendant cites no case which would support his position, and our research of the law of accountability reveals no such requirement. As noted above, the trial court properly found that McWilliams had sexually assaulted complainant, and that in so doing, had caused her bodily harm. As just discussed, the trial court properly found Hoskins accountable for McWilliams’ actions. Thus, Hoskins was properly convicted of aggravated criminal sexual assault, as charged in count I of the indictment.

In sum, the judgment of conviction of the circuit court of Cook County against Hoskins for aggravated criminal assault, both for causing bodily harm and under accountability principles, are affirmed. The judgment of conviction against McWilliams for aggravated criminal sexual assault by causing bodily harm is affirmed; the judgment of conviction against McWilliams under accountability principles is reversed. The sentence imposed on McWilliams is upheld.

Affirmed in part and reversed in part.

LaPORTA, P.J., and RAKOWSKI, J., concur.


source: Caselaw Access Project

author: Roger J. Balia (Balia),

license: Public Domain

text:
    ROGER J. BALLA, Plaintiff-Appellant, v. GAMBRO, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 88—2955
    Opinion filed September 10, 1990.

      Alan O. Amos & Associates, P.C., of Chicago (Alan O. Amos, of counsel), for appellant.
    Pedersen & Houpt, P.C., of Chicago (Arthur Sternberg, of counsel), for appellees.
   JUSTICE O’CONNOR delivered the opinion of the court:

Roger J. Balia (Balia),

an attorney, sued his previous employer, Gambro, Inc. (Gambro); its affiliate, Gambro Dialysatoren, KG (Gambro Germany); Gambro’s corporate parent, Gambro Lundia, AB (Gambro Sweden); and Gambro’s president, David Maupin (Maupin), alleging retaliatory discharge. The trial court entered summary judgment for Gambro et al, holding that since Balia was an attorney, he was barred from bringing a retaliatory discharge claim. Balia appeals.

Gambro is a distributor of kidney dialysis equipment manufactured by Gambro Germany. Among the products manufactured and distributed are dialyzers, which filter excess fluid and toxic substances from the blood of patients with impaired or no kidney function. The manufacture and sale of dialyzers is regulated by the United States Food and Drug Administration (FDA) under the United States Food, Drug and Cosmetic Act (Act), 21 U.S.C. §331 et seq. (1988), and FDA regulations, 21 C.F.R. §§820.150 through 820.198 (1987).

Gambro hired Balia in March 1980, as manager of personnel and general counsel. According to Gambro’s 1983 corporate organization chart, Balia also held the position of manager of regulatory affairs. The position of manager of regulatory affairs was described as an individual who was “responsible for ensuring awareness of and compliance with federal, state and local laws and regulations affecting the company’s operations and products.” The position required a “B.S. degree plus 3-5 years experience in the medical device field plus 2 years experience in the area of governmental regulations.”

By letter dated July 1985, Gambro Germany informed Gambro that defective dialyzers would be shipped. Gambro Germany further advised Gambro:

“For acute patients risk is that the acute uremic situation will not be improved in spite of the treatment, giving continuous high levels of potassium, phosphate and urea/creatine. The [chronic] patient may note the effect as a slow progression of the uremic situation and depending on the interval between medical check-ups the medical risk may not be overlooked.” (Emphasis added.)

At this time, Balia alleges that he informed Maupin that Gambro’s sale of these dialyzers would have to be reported to the FDA.

Nevertheless, in a telex dated July 19, 1985, Maupin informed Gambro that “[w]e [Gambro] are going to sell the *** [defective dialyzers] to a unit that is not currently our customer but who buys only on price.” In August 1985, the dialyzers arrived at Gambro’s facility. In Balia’s deposition, he stated that as an individual as well as an attorney, he was of the opinion that “the dialyzers were misbranded and/or adulterated.”

On September 4, 1985, Maupin terminated Balia from Gambro’s employment. Later that day, Gambro shipped some of the defective dialyzers to customers. On September 5, 1985, Balia reported the defective shipment to the FDA. The FDA seized the shipment and determined the product to be “adulterated within the meaning of section 501(h) [of the Food, Drug, and Cosmetic Act].”

Subsequently, Balia filed his complaint alleging retaliatory discharge and seeking monetary damages. Initially, the trial court dismissed the action against Maupin, Gambro Sweden, and Gambro Germany. Then, the court granted Gambro’s summary judgment motion, holding that Balia’s complaint failed to state a cause of action pursuant to Herbster v. Northern American Co. for Life & Health Insurance (1986), 150 Ill. App. 3d 21, 501 N.E.2d 343, appeal denied (1987), 114 Ill. 2d 545, 508 N.E.2d 728, cert, denied (1987), 484 U.S. 850, 98 L. Ed. 2d 105, 108 S. Ct. 150, because Balia was an attorney. Balia appeals.

Balia argues that he was standing to bring a cause of action for retaliatory discharge, notwithstanding the Herbster decision. We agree. Retaliatory discharge is an exception to the general rule that an at-will employment relationship may be terminated at any time for any or no cause. Notwithstanding the at-will employment relationship, the law recognizes a cause of action when it is alleged that the employee was discharged in retaliation for his activities, and that the discharge was in contravention of a clearly mandated public policy. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505, 485 N.E.2d 372, cert, denied (1986), 475 U.S. 1122, 90 L. Ed. 2d 187, 106 S. Ct. 1641; Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134, 421 N.E.2d 876.) Accordingly, Balia has alleged that he was discharged because he opposed the distribution of allegedly “misbranded and/or adulterated dialyzers” and that his discharge contravenes public policy.

Public policy clearly favors the prevention of interstate and intrastate distribution of “misbranded and/or adulterated dialyzers.” This public policy is exemplified by Federal and State statutes which criminalize the distribution of defective dialyzers. (21 U.S.C. §331 et seq. (1988); Ill. Rev. Stat. 1987, ch. 56V2, par. 501 et seq.) Moreover, “[t]here is no public policy more important *** than the one favoring the effective protection of the lives and property of citizens.” (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 511, 485 N.E.2d 372, cert, denied (1986), 475 U.S. 1122, 90 L. Ed. 2d 187, 106 S. Ct. 1641; Palmateer v. International Harvester Co. (1981), 85 Ill. 2d at 132, 421 N.E.2d at 876.) Therefore, Balia clearly alleged two public policies that support that his termination was wrongful: (1) a public policy which favors his refusal to engage in Gambro’s alleged illegal activities; and (2) a public policy which favors the protection of citizens’ lives by opposing the distribution of allegedly “misbranded and/or adulterated dialyzers.”

If Balia had been a layman-employee rather than an attorney-employee, there would be no question as to his standing to bring a cause of action for retaliatory discharge. However, because Balia was Gambro’s in-house counsel and held several positions with Gambro, the question of standing becomes less obvious because we must consider the nature and sanctity of the attorney/client relationship. Some courts have refused to grant attorneys standing in a retaliatory discharge action fearing that the attorneys would breach their fiduciary duty by disclosing their client’s confidential information and fearing that clients would not be able to terminate their attorney at any time. The issue of whether Balia has standing to bring a cause of action for retaliatory discharge turns on the outcome of the following three-part analysis.

First, if Balia’s discharge resulted from information he learned as a “layman” in a nonlegal position, then the attorney/client relationship would not be compromised and privileged information would not be disclosed. Accordingly, Balia would have standing to bring a cause of action for retaliatory discharge.

Second, if the court cannot determine that Balia’s discharge resulted from information he learned as a layman, then he is deemed to have learned the information in his capacity as an attorney. At which time, the questions of fact are: (a) whether Balia learned the information as a result of the attorney/client relationship; and (b) whether the information was privileged. If the answer to either of these questions is “no,” then Balia has standing to bring a cause of action. However, if the court determines that there was an attorney/client relationship and that the information was privileged, then it should consider whether the privilege was waived. Assuming the privilege was waived, Balia has standing to bring a cause of action for retaliatory discharge.

Finally, even if Balia’s discharge resulted from information he learned in his capacity as an attorney, that the information was privileged and that the privilege was not waived, the court must determine whether there were any countervailing public policies favoring disclosure of privileged information. The sanctity of the attorney/client privilege is not an absolute bar to disclosure. To the contrary, certain exceptions exist which either mandate or permit disclosure. Disclosure is mandated by Rule 4 — 101(c) of the Code of Professional Responsibility, which states that “[a] lawyer shall disclose information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm to another person, and to the extent required by the law.” (Code of Professional Responsibility (87 Ill. 2d R. 401(c)).) Likewise, Rule 4 — 101(d)(3) permits a lawyer to reveal the intention of a client to commit a crime other than those enumerated in Rule 4 — 101(c). (Code of Professional Responsibility (87 Ill. 2d R. 4 — 101(d)(3)).) After balancing the competing public policies of the attorney/client privilege versus protecting individuals from serious bodily harm or death, we find clear support in favor of disclosing information when the attorney reasonably believes it is necessary to prevent serious bodily harm or death.

Further, Balia’s attempt to recover monetary damages, rather than reinstatement, is not contrary to the client-employer’s right to terminate his attorney-employee at will. The client-employer can terminate the attorney-employee. However, the client-employer may be liable for damages to the attorney-employee if the termination was in retaliation for the employee’s activities and contravenes public policy. See Parker v. M&T Chemicals, Inc. (1989), 236 N.J. Super. 451, 566 A.2d 215.

Therefore, Balia is not precluded, as a matter of law, from standing to bring a cause of action for retaliatory discharge, notwithstanding the Herbster decision. (Herbster v. North American Co. for Life & Health Insurance (1986), 150 Ill. App. 3d 21, 501 N.E.2d 343, appeal denied (1987), 114 Ill. 2d 545, 508 N.E.2d 728, cert, denied (1987), 484 U.S. 850, 98 L. Ed. 2d 105, 108 S. Ct. 150.) In Herbster, the plaintiff, who was in-house counsel, was asked by his client to destroy or remove discovery information in litigation in which he was directly participating. After plaintiff Herbster refused the request, he was fired. The Herbster court held that an attorney, who was terminated by his client, was barred from filing a cause of action for retaliatory discharge. The Herbster court’s rationale was premised on the sanctity of the attorney/client privilege. We agree with the Herbster court; however, we distinguish the Herbster facts. First, we note that plaintiff Herbster was clearly acting in his capacity as an attorney and was subject to the attorney/client privilege because he was directly involved in the litigation when he was asked to destroy discovery requested in that litigation. Secondly, in Herbster, neither of the public policy concerns recognized by Illinois courts relating to the conduct of illegal activities and the protection of citizens lives were present.

Finally, Balia argues that Gambro Sweden, Gambro Germany, and Maupin are proper parties to the retaliatory discharge action. We agree that the trial court erred in dismissing Gambro Sweden and Gambro Germany as defendants because questions of fact exist regarding whether Balia was their employee and whether they participated in a conspiracy to terminate Balia’s employment. However, we reject Balia’s argument that the trial court erred in dismissing defendant Maupin. This district has held that an individual who personally participated in the tort is insulated from liability because he is not the employee’s employer, merely the employer’s agent. (Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 177, 533 N.E.2d 1; Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 421, 495 N.E.2d 1159.) Accordingly, the trial court properly dismissed defendant Maupin.

In conclusion, the trial court erred in determining, as a matter of law, that Balia was barred from bringing a cause of action for retaliatory discharge because questions of fact exist. Specifically: (1) whether Balia’s discharge resulted from information he learned as a “layman” in a nonlegal position; (2) whether Balia learned the information as a result of the attorney/client relationship, if so, whether the information was privileged, and if it was privileged, whether the privilege was waived; and (3) whether there were any countervailing public policies favoring disclosure of privileged information learned from the attorney/client relationship. Furthermore, Gambro Sweden and Gambro Germany were properly named defendants because questions of fact exist regarding whether they participated in a conspiracy to terminate Balia, and whether Balia was their employee. However, the trial court properly dismissed defendant Maupin. Accordingly, the summary judgment for Gambro, Gambro Germany, and Gambro Sweden is reversed; the judgment for Maupin is affirmed; and the case is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed and remanded in part.

BUCKLEY, P.J., and MANNING, J., concur.

      The Gambro corporate organization chart referred to Balia’s positions as “Dir. of Admin./Personnel; General Counsel; Mgr. of Regulatory Affairs.”

      ABA Formal Opinion 328, June 1972, states that “[i]f the second occupation is so law-related that the work of the lawyer in such occupation will involve, inseparably, the practice of law, the lawyer is considered to be engaged in the practice of law while conducting that occupation.”

      The second district would apparently agree with Balia, because it has held that a retaliatory discharge action could be brought against the agent who effected the discharge, where the actions of the agent rendered the principal liable. (Fellhauer v. City of Geneva (1989), 190 Ill. App. 3d 592, 602, 546 N.E.2d 791, appeal allowed (1990), 129 Ill. 2d 563, 550 N.E.2d 555.) The Fellhauer court noted that to hold otherwise would unduly weaken the tort of retaliatory discharge and defeat one of its underlying purposes, which is to prevent employers from discharging their employees in violation of public policy. Fellhauer v. City of Geneva (1989), 190 Ill. App. 3d at 601-02, 546 N.E.2d 791.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES BAISTEN, Defendant-Appellant.
    First District (2nd Division)
    No. 1— 87—2267
    Opinion filed September 11, 1990.

      Randolph N. Stone, Public Defender, of Chicago (James W. Younger, Jr., and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Marie Quinlivan Czech and Jeanette Sublett, Special Assistant State’s Attorneys, and Inge Fryklund, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Charles Baisten, a black, appeals his jury conviction for murder on two grounds, alleging (1) that he was deprived of a fair and impartial trial when the circuit judge erroneously found under the standards set forth in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, that the State articulated legitimate, race-neutral reasons for exercising its peremptory challenges to exclude five black veniremen from the petit jury; and (2)-that the State failed to prove defendant guilty of murder beyond a reasonable doubt.

THE FACTS

A jury consisting of nine white and three black persons convicted defendant of murder, resulting in his being sentenced to a term of 40 years in the custody of the Illinois Department of Corrections. A summary of the voir dire follows a review of the evidence.

TRIAL TESTIMONY

Alan Anderson (Anderson), 24, testified that at about 4 or 4:30 in the morning of August 2, 1986, he, the victim Darren Turner (Turner) and four other friends drove to the G & B Barbecue at 103rd and LaSalle Streets in Chicago to pick up a carry-out meal for Anderson’s wife. They parked their car on the north side of 103rd Street, about 10 feet west of the barbecue stand. Anderson and Keith Beverly (Beverly) got out of the car and walked inside. Turner remained in the car with Clarence Cunningham (Cunningham), Darnell Smith (Smith) and Larry Jackson (Jackson). As he walked out of the stand with his food, Anderson noticed a crowd of approximately 30 people in the street, near the rear of his automobile, about 10 to 15 feet away from him. Lighting conditions in the street were good. Anderson then saw defendant, who was wearing a pair of blue jeans and no shirt, standing about 15 feet away from him against a lamp post, holding a gun in his right hand tightly against the back of his right thigh. After seeing the gun, Anderson touched Smith and Turner, who was standing about 10 feet away, closer to the south side of the street, and said “let’s go.” Then, having turned his back to Turner, Anderson heard a gunshot, “jumped” to the ground, and heard a second gunshot. He said the sounds came from the same direction in which only seconds earlier he had seen defendant standing with a gun.

Anderson saw Turner lying on the ground, wounded in the back of the head. He felt Turner’s pulse, then ran to the barbecue stand to call for an ambulance and police, who arrived before Anderson came back out. About 10 minutes after the shooting, the police interviewed him on the scene. He did not see defendant again until defendant was arrested and placed in a paddy wagon. Soon after the interview, Anderson was taken to police area headquarters to view a lineup, where he identified defendant, now wearing a tank top, as the man he had seen holding a gun.

Cunningham, 24, essentially corroborated Anderson’s testimony about the circumstances of the six friends arriving at the barbecue stand. He stated further that he remained in the car with Turner and Smith, while the others went inside. While they were waiting in the car, a woman named Lesa O’Neal (O’Neal), who according to Cunningham looked like a prostitute, walked past the car, eastbound on 103rd Street. Turner made some comments to her, then got out of the car and spoke to her again as they were walking. When O’Neal and Turner got to the corner, she walked across the street toward three men, spoke briefly to them, then walked back with them to where Turner was standing and slapped him across the face. In the meantime, Cunningham and Smith had gotten out of the car, and a fight broke out among O’Neal, Cunningham, Smith, Turner and the three other men. The fight then moved out into the street, where the number of people had grown to about 30 to 35. Cunningham kept hollering “let’s go” to Smith and Turner, beckoning them to leave.

Cunningham then noticed defendant leaning against a stop sign pole on the corner, “looking kind of funny.” The area was brightly illuminated by streetlights. Defendant was wearing gym shoes and a pair of jeans, but no shirt. His right arm was extended across his midsection, and with his left hand he held a black felt-like hat over his right hand, as if hiding something. Cunningham thought it might be a gun. At that time a man ran up to defendant and said, “Give me the gun, give me the gun.” Defendant did not give him anything and a few seconds later the man left.

Cunningham turned and began running toward the barbecue stand to find Anderson. After taking about five steps he heard two gunshots. Turning back to the middle of 103rd Street where he heard the shots, he noticed Turner lying on the ground, wounded. Cunningham then ran to the barbecue stand to call an ambulance, which arrived with the police in about three or four minutes. While being interviewed by the police on the scene, Cunningham noticed defendant leaning against the same pole on the corner of 103rd and Perry Streets, about 10 feet away. He no longer held the hat and was wearing a dark green tank top. After Cunningham pointed him out, the police arrested him, finding the hat tucked under his belt. Cunningham later identified defendant at a lineup.

Dr. Tae An, a Cook County medical examiner, performed an autopsy on the victim and determined that he died from a gunshot wound to the head.

Chicago police officer Stan Salabura came to the scene of the shooting in response to a radio call and was told by Officer Neal that a man and a woman who were involved in the incident were walking away eastbound on 103rd Street. The woman, O’Neal, broke and tried running away but was later apprehended in a gangway. She told Officer Salabura that defendant was the one who fired the gun which killed Turner. Officer Salabura also interviewed Cunningham, whose identification of defendant on the scene led to defendant’s arrest.

Chicago police detective William Storck testified that he also arrived at the scene in response to a radio call. He saw O’Neal sitting in a police car with Officer Salabura. She beckoned him to come over. Officer Storck then took her into his unmarked police car and had a conversation with her. After talking to her, he sent two flash messages over his radio about the offender, then five minutes later noticed defendant in a police wagon on the scene.

Chicago police officer Reynard James Ricks, assigned to the crime laboratory, administered a gunshot residue test on defendant at area headquarters approximately three hours after the shooting. Defendant did not tell him whether he was right or left handed, but stated that he had last washed his hands sometime the day before.

Chicago police officer Raymond Lenz, also assigned to the crime laboratory, was qualified as an expert in the field of forensic micro-analysis. He performed several tests on the samples taken from defendant’s hands and determined that the backs and palms of his hands had high levels of lead, barium and antimony. In Officer Lenz’s opinion, the very high level of these elements indicated that defendant had either fired a weapon or handled a recently fired weapon before the test. It was also his opinion that according to the test results it was more likely that defendant had fired the weapon himself rather than having handled one after someone else had fired it. On cross-examination, Officer Lenz acknowledged that similarly high levels of the elements may be found on the hands of a person who either works in a foundry machine shop or has handled gasoline.

Chicago police officer James Lotito testified for the defense. On the night of the shooting, he conducted a lineup viewed by Anderson, Smith and Cunningham. At the lineup Cunningham told him that someone walked up to defendant shortly before the shots were fired and said “give it to me, give it to me.”

Iva Brown testified that on the night of the shooting she was with defendant inside the G & B Barbecue when they heard shots being fired across the street. On that night, according to her, defendant was wearing striped pants, a white T-shirt and a baseball cap.

John Carpenter, 69, who lived on the corner of 103rd and Perry Streets, testified that he was sitting on his front porch in the early morning hours of August 2, 1986, when he heard two shots fired. He walked down to the corner and saw Turner’s body lying on the pavement. While Carpenter was talking to a neighbor, he noticed defendant standing nearby for a while, but did not see from which direction he had come. Shortly thereafter he saw the police place defendant under arrest.

THE VOIR DIRE AND BATSON HEARING

The record on appeal indicates that before trial, the trial judge individually questioned approximately 40 prospective jurors. Of the 12 jurors who were finally impanelled, three were black; the two alternates were also black. Nine prospective jurors were excused for cause. The State and defendant each exercised seven peremptory challenges. Six of these seven challenges were used by the State to excuse blacks; Jerry Brown, Marie Douyon, Maxine Johnson, Regina Little, Anita Harrell and Walter Thornton. The record on appeal does not indicate either the racial composition of the venire, the race of the nine jurors excused for cause, the identity of the three black jurors or the order in which the parties exercised their peremptory challenges and challenges for cause.

After the circuit judge summarized the challenges exercised by both sides, the following colloquy took place between the judge and counsel for the defense:

“THE COURT: I am going to put it out now, I have heard no motion for inquiry under Batson and unless as I understand it there is a waiver, if that is not brought up now, if it is not waived — .
MR. CUDA [Defense Attorney]: Waiver of what?
THE COURT: Batson. I have heard no motion concerning Batson.
MR. CUDA: Is that the systematic exclusion of all blacks?
THE COURT: Right.
MR. CUDA: I will raise it just for the record, Judge.
THE COURT: All right.
MR. CUDA: I think my recollection that the State excluded 6 out of 7 challenges were black.
THE COURT: That is true. I am going to find on that basis as to some of them at least there does not appear to be any reason. I am going to ask the State to enunciate a reason. I understand as to Jerry Brown, you asked for cause because of his rap sheet indicated prior arrests, no convictions and he didn’t say so on his sheet. I think that is a legitimate reason for exercising a peremptory.”

Following is a summary of the voir dire examination of each of the five other black prospective jurors, a statement of the prosecution’s reasons for excusing them and the court’s response.

(1) Anita Harrell. Ms. Harrell indicated she is single, living in a rented apartment and currently unemployed, but worked in the post office for 11 years in the past. She does not subscribe to any books, magazines or periodicals, but is active in her church, holds office in the church choir and enjoys baseball as a hobby. She also said she would be able to follow the jury instructions and could be fair and impartial.

The prosecutor explained that Ms. Harrell failed to provide answers to a number of questions on her jury summons card, including questions regarding her employment and present occupation. Moreover, certain answers she imparted to the court during the voir dire were either not noted on the card or did not correspond to the information thereon.

The judge found that this was a neutral explanation because it went to Ms. Harrell’s competency to sit as a juror.

(2) Regina Little. Ms. Little indicated she is a divorced housewife currently studying for a GED in order to earn a degree in nursing and lives in an apartment. She has two children, a son in Iowa “doing ten years” and a married daughter. She subscribes to two nursing periodicals, is not active in any organizations and could be fair and impartial.

The prosecutor stated that the State excused Ms. Little because she has two children of about the same age as defendant.

The judge noted that historically this has been a legitimate reason for exercising a peremptory challenge.

(3) Walter Thornton. Mr. Thornton stated that he is married, with two children in grammar school, and lives in an apartment. He is currently employed with a company that services airlines and has worked as a scavenger truck driver and as an employee of a custom car shop in the past. His wife is a nurse’s aide. Mr. Thornton enjoys basketball and baseball, does not subscribe to any books, magazines or periodicals and is not active in any organizations. He stated he could follow the court’s instructions and be a fair and impartial juror.

The prosecutor said Mr. Thornton was excused because he “showed more interest in what the defendant was doing than the questions the court was asking.” Also, he was close in age to defendant.

The judge observed that indeed Mr. Thornton was not looking at him except when questioned. According to the judge, the State’s reason was “very subjective” but “not frivolous because those are things that in the selection process one looks for and it is a non-racial reason.”

(4) Maxine Johnson. Ms. Johnson stated that she is single, rents an apartment and has worked as a cashier for the past seven years. She does not subscribe to any reading materials, enjoys shopping, is active in church but does not hold any office, and could be fair and impartial.

The prosecutor stated that the information Ms. Johnson provided both on her card and during questioning did not give the State “an adequate basis as to what this person was thinking about or what position she held.” Furthermore, she was approximately the same age as one of the State’s prospective witnesses, O’Neal, a black woman who was involved in a confrontation on the street with one of the victim’s friends.

With respect to the State’s first reason for excluding Ms. Johnson, the judge found that it was “thin” but nevertheless neutral. He offered no comment regarding the second reason.

(5) Marie Douyon. Ms. Douyon told the court she is married, has no children and has lived in her home at 89th and Yates Streets in Chicago for the past 12 years. She is a nurse’s aide in Provident Hospital; her husband works with computers at the Federal Reserve Bank in Chicago. Her hobby is music, she reads no books or magazines and is not active in any organizations. She indicated she could follow the jury instructions and be fair and impartial.

The prosecutor explained that the State excused Ms. Douyon because she lives near the area where the crime in question occurred, and because her familiarity with that neighborhood may cause her to prejudge the characteristics of some of the witnesses.

The judge observed that a juror who lives close to the scene of the crime may overhear certain things about the case in the neighborhood that are hearsay. He also agreed with the State that such a juror may infer certain characteristics about the witnesses merely because of where they reside. He found that the State’s explanations were neutral and nonracial.

After hearing arguments from both sides with respect to each of the five excused jurors, the trial judge concluded that all of the State’s reasons were race neutral and that therefore there had been no systematic exclusion of blacks from the jury.

REVIEW OF THE BATSON HEARING

Defendant argues that by exercising six out of seven peremptory challenges against black members of the venire, the State denied him his right to equal protection under the fourteenth amendment to the United States Constitution. In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the United States Supreme Court held that a prosecutor’s purposeful use of peremptory challenges to exclude members of a cognizable racial group from a jury in a criminal case violates the right to equal protection of a defendant who is a member of that racial group. In the two-part analysis delineated by the Court for determining whether a violation of such right has occurred, defendant bears the initial burden of establishing a prima facie case of purposeful discrimination. As stated in Batson:

“To establish such a case, the defendant first must show that he is a member of a cognizable racial group [citation] and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ [Citation.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors *** raises the necessary inference of purposeful discrimination.” (476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.)

Once the defendant makes the requisite showing, the burden shifts to the prosecution to articulate legitimate, race-neutral and trial-specific explanations for its use of the peremptory challenges. Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1723-24.

WHETHER DEFENDANT MADE OUT A PRIMA FACIE CASE

It is not disputed that defendant satisfied the threshold requirement of the Batson analysis: the record reflects that defendant is black and that the State used six of its seven peremptory challenges to exclude blacks from the jury. However, since the trial court’s determination of whether defendant made out a prima facie case of purposeful discrimination does not turn on an evaluation of credibility, but rather “depends upon a weighing of the ‘relevant circumstances’ of the case” (People v. Holman (1989), 132 Ill. 2d 128, 173, 547 N.E.2d 124, 144, cert, denied (1990), _U.S__, Ill L. Ed. 2d 804, 110 S. Ct. 3296), the number of blacks may not be the sole consideration (People v. Mahaffey (1989), 128 Ill. 2d 388, 413, 539 N.E.2d 1172, 1184, cert, denied (1989), 493 U.S. 873, 107 L. Ed. 2d 156, 110 S. Ct. 203; People v. Young (1989), 128 Ill. 2d 1, 19-20, 538 N.E.2d 453, 457, cert, denied (1990),_U.S__, Ill L. Ed. 2d 798, 110 S. Ct. 3290; People v. Evans (1988), 125 Ill. 2d 50, 64, 530 N.E.2d 1360, cert, denied (1989), 490 U.S. 1113, 104 L. Ed. 2d 1036, 109 S. Ct. 3175). In fact, our supreme court “has repeatedly emphasized that in determining whether a prima facie case of discrimination exists, a ‘court must avoid arbitrarily deciding this delicate question solely from the number of blacks peremptorily challenged’ ” (Holman, 132 Ill. 2d at 172, 547 N.E.2d at 142, quoting Mahaffey, 128 111. 2d at 413, 539 N.E.2d at 1184), but should focus instead on the “relevant circumstances” tending to raise an inference of purposeful discrimination (Holman, 132 Ill. 2d at 172-73, 547 N.E.2d at 143). In Batson, the Supreme Court gave two illustrations of such circumstances: a “pattern” of strikes against black veniremen and the prosecutors’ questions and statements during the jury selection process. (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) In the course of developing the law pursuant to Batson in Illinois, our supreme court has recognized a number of other relevant considerations. See Holman, 132

Ill. 2d at 173, 547 N.E.2d at 143 (prosecutor’s conduct in previous cases); Mahaffey, 128 Ill. 2d at 413, 539 N.E.2d at 1184 (disproportionate number of peremptory challenges used against blacks; fact that excluded blacks constitute an otherwise heterogenous group; proportion of blacks in venire as compared to their proportion on jury; race of defendant and victim; race of witnesses); see also People v. Hooper (1989), 133 Ill. 2d 469, 503-04, 552 N.E.2d 684, 698; Evans, 125 Ill. 2d at 63-64, 530 N.E.2d at 1365.

Relying on the foregoing principles, the State contends on review that the trial judge determined whether defendant established a prima facie case of purposeful discrimination only after inviting the State to come forth with race-neutral explanations for the peremptory challenges it exercised against blacks. Hence, according to the State, the ensuring hearing was a “consolidated hearing” akin to those conducted in People v. Brisbon (1989), 129 Ill. 2d 200, 544 N.E.2d 297, cert, denied (1990), 494 U.S. 1074, 108 L. Ed. 2d 797, 110 S. Ct. 1796, and Hooper, where the trial court “considered the entire record, as well as the prosecutor’s explanations, in deciding [whether] a prima facie case of discrimination” had been established (Brisbon, 129 Ill. 2d at 231, 544 N.E.2d at 312); therefore, the trial court’s ultimate finding in our case was that defendant failed to meet his burden. The State argues in the alternative that the trial judge implicitly found an inference of purposeful discrimination based on the mere number of blacks excluded from the petit jury when, in response to defense counsel’s statement that the prosecution exercised six out of seven peremptory challenges against blacks, the judge stated: “I am going to find on that basis as to some of them at least there does not appear to be any reason. I am going to ask the State to enunciate a reason.” Citing Evans and Mahaffey, the State urges that since mere numbers alone are not sufficient to state a prima facie case, we should find that defendant failed to meet his burden in this instance also.

In resolving this issue we are mindful of the supreme court’s recent admonishment to our trial courts to preserve the integrity of Batson’s analytical framework by first evaluating defendant’s prima facie case and only then permitting the State to articulate race-neutral explanations. (People v. Hope (1990), 137 Ill. 2d 430, 452-62.) If the procedure were inverted,

“not only would a defendant’s Batson-conferred ability to make such a case be impaired in the first place, but also it is likely that the explanations themselves would be judged less rigorously than if they had to measure up to Batson standards of specificity and neutrality in order to meet a prima facie case already established.” (Hope, 137 Ill. 2d at 456-57.)

The court distinguished Brisbon and Hooper, wherein the trial court held “consolidated hearings,” rejecting “any general rule that post hoc State explanations may be permitted to act as a thumb on the scales while a defendant’s own prima facie case is being weighed to see whether such explanations will even be required.” Hope, 137 Ill. 2d at 459.

Turning to the case at bar, however, it is evident from the trial judge’s final decision that he did not hold a “consolidated hearing.” In concluding the Batson hearing, the judge stated:

“I have determined from the State and also [from] the statements concerning their neutral reasons that there has not been a systematic exclusion of the black race in the selection of this jury by the exclusion of 6 or 7 jurors.”

Clearly, the judge heard the prosecutor’s explanations for the purpose of determining whether the State overcame defendant’s prima facie case. Thus we need not address whether the judge improperly considered those explanations in determining whether defendant stated a prima facie case in the first place.

Although, in light of Young, Mahaffey and Holman, we do not approve of the trial judge’s implicit finding of a prima facie case exclusively on the basis of the number of blacks peremptorily excluded by the State, we will not disturb that finding and invoke instead the “presumption that, because explanations were requested, a prima facie case [was] made.” (Hope, 137 Ill. 2d at 460, citing People v. Johnson (1989), 47 Cal. 3d 1194, 1217, 767 P.2d 1047, 1054, 255 Cal. Rptr. 569, 576, cert, denied (1990), _U.S. _, 108 L. Ed. 2d 636, 110 S. Ct. 1501; State v. Gonzalez (1988), 206 Conn. 391, 397, 538 A.2d 210, 213; State v. Walton (1988), 227 Neb. 559, 562, 418 N.W.2d 589, 591.) Since the only Batson issue on appeal is whether the State came forward with genuine, case-specific and racially neutral explanations, we have no reason to scrutinize whether indeed defendant met his burden of establishing an inference of purposeful discrimination. Thus we proceed directly to review the trial judge’s assessment of the rebuttal evidence proffered by the State.

THE STATE’S REBUTTAL

Defendant contends that the trial court erred in finding that the State articulated legitimate, race-neutral reasons for exercising six out of seven peremptory challenges to exclude blacks from the petit jury. Under Batson, the State has the burden “to ‘articulate’ ‘ “clear and reasonably specific” explanation^]’ for its use of peremptory challenges on minority venirepersons.” (People v. Harris (1989), 129 Ill. 2d 123, 184, 544 N.E.2d 357, 384, quoting Batson, 476 U.S. at 98 & n.20, 90 L. Ed. 2d at 88-89 & n.20, 106 S. Ct. at 1723-24 & n.20, cert, denied (1990), 494 U.S. 1018, 108 L. Ed. 2d 498, 110 S. Ct. 1323.) The State’s explanations need not rise to the level necessary to justify a challenge for cause; however, they must be more than mere assertions of good faith or lack of discriminatory motive. (Harris, 129 Ill. 2d at 174, 544 N.E.2d at 379, citing Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) In particular, the State may not justify the exclusion of black venirepersons solely by reason of their sympathy toward a black defendant on account of their shared race. Harris, 129 Ill. 2d at 174, 544 N.E.2d at 379, citing Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88,106 S. Ct. at 1723.

The trial court must then evaluate the State’s explanations to determine whether they are sufficient to rebut defendant’s prima facie case. In doing so, the trial court must make “ ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanations in light of the circumstances of the case.’ ” (Harris, 129 Ill. 2d at 174-75, 544 N.E.2d at 380, quoting People v. Hall (1983), 35 Cal. 3d 161, 167, 672 P.2d 854, 858, 197 Cal. Rptr. 71, 75.) The judge has a twofold responsibility: to assess the genuineness of the prosecutor’s assertions and to determine whether those assertions are indeed legitimate and race neutral. (People v. Mack (1989), 128 Ill. 2d 231, 238-39, 538 N.E.2d 1107, 1111, cert, denied (1990), 493 U.S. 1093, 107 L. Ed. 2d 1072, 110 S. Ct. 1170.) Whether the State has met its burden is a question of fact, turning largely on credibility; thus, the trial judge’s determination is entitled to “great deference” and will not be disturbed on review unless it is against the manifest weight of the evidence. (Harris, 129 Ill. 2d at 175, 544 N.E.2d at 380, citing People v. McDonald (1988), 125 Ill. 2d 182, 199, 530 N.E.2d 1351, 1358.) If it becomes apparent that the State excluded even one venireperson on the basis of race, it is enough to reverse defendant’s conviction. (Harris, 129 Ill. 2d at 175, 544 N.E.2d at 380, citing McDonald, 125 Ill. 2d at 200-01, 530 N.E.2d at 1359.) Thus, we must review the State’s preferred explanations for each of the five black members of the venire whose exclusion defendant contests.

With respect to three excluded black venirepersons, Ms. Harrell, Ms. Little and Mr. Thornton, defendant maintains that the State exhibited a patent inconsistency in its treatment of black and white venirepersons by accepting white jurors possessing the same characteristics for which it excluded these three black members of the venire. In McDonald (125 Ill. 2d 182, 530 N.E.2d 1351), the supreme court affirmed the trial court’s finding that the State engaged in purposeful discrimination because all of the excluded blacks who testified at the Batson hearing were excluded on the basis of certain traits which the white jurors who were accepted also possessed. For example, the State excluded a 34-year-old black male, because single males are the “worst jurors” for rape cases, but retained a single 18-year-old white male. (125 Ill. 2d at 199, 530 N.E.2d at 1358.) The State also excluded a black female who had been on jury duty but may or may not have served on a jury, because individuals with prior jury service may have preconceived notions about a case and are “time bombs in a case waiting to happen,” but retained a white female who had served on two previous juries. 125 Ill. 2d at 199, 530 N.E.2d at 1359.

Defendant points out that in the present case, the State excluded Ms. Harrell because she failed to fill out the answers on her summons card to several questions, including her age, employer’s name, occupation, number of children and work telephone number. However, the State retained R.L. and B.C., two allegedly white jurors, who also left certain questions blank. The State then excluded Ms. Little, because she stated that she has two children, ages 23 and 25, both of whom are of a similar age to defendant, who is 25; however, J.R., an allegedly white juror, was retained despite the fact that she has three children, ages 20, 25 and 29. Finally, the State excluded Mr. Thornton, 31, because he. was close in age to defendant, whereas B.C. and J.H., two allegedly white jurors, both age 29, were allowed to remain on the jury.

While this kind of an argument should “be given great weight” (Harris, 129 Ill. 2d at 180, 544 N.E.2d at 382) and “should not be lightly dismissed” (Young, 128 Ill. 2d at 23, 538 N.E.2d at 458) when evaluating the credibility of the State’s preferred explanations, we cannot agree with defendant’s position because, as the State correctly asserts, the record before us is devoid of any showing that the jurors who defendant claims are white in his brief are indeed white. Since a reviewing court is “plainly entitled” to consider defense, counsel’s- statements spoken at a Batson hearing to identify the race of excluded venirepersons (People v. Andrews (1989), 132 Ill. 2d 451, 461, 548 N.E.2d 1025, 1029, quoting McDonald, 125 Ill. 2d at 198, 530 N.E.2d at 1358), we see no reason why the same would not be true for the purpose of identifying the white members of the jury. However, in our case, the only references to the race of four allegedly white jurors appear only in defendant’s appellate brief. Accordingly, we consider that defendant has waived his arguments concerning the State’s disparate treatment of black and white venirepersons. Defendant’s challenge to the court’s finding that the State articulated legitimate, specific and racially neutral reasons for excluding black members of the venire remains viable on all other grounds, however; thus, we now turn to the individual challenges exercised by the State.

(1) Ms. Harrell. As the State accurately notes, no impanelled juror left as many questions blank on the jury summons card as Ms. Harrell; and certain answers she gave during the voir dire did not correspond to the information on her card. The record reflects that she failed to answer 8 out of 21 questions. Thus, we agree with the trial judge’s conclusion that the State’s explanation was race neutral and related to Ms. Harrell’s competency to sit as a juror.

(2) Ms. Little. The State may legitimately exercise a peremptory challenge to exclude a prospective juror who. has children of an age similar to defendant’s. (People v. Allen (1987), 168 Ill. App. 3d 397, 405, 521 N.E.2d 1172, 1176, citing Johnson v. State (Okla. Crim. App. 1987), 731 P.2d 993, 999 n.3, cert, denied (1987), 484 U.S. 878, 98 L. Ed. 2d 167, 108 S. Ct. 35.) According to the State’s proffered explanations, Ms. Little was excluded because she has a son and a daughter, ages 23 and 25. Although the record also reflects that during the voir dire she stated that her son is “doing ten years” in Iowa, an otherwise legitimate and race-neutral basis for exclusion (Allen, 168 Ill. App. 3d at 405, 521 N.E.2d at 1176, citing Johnson, 731 P.2d at 999 n.3), we may not consider his criminal record in this case because the prosecution did not articulate it as an explanation, and the court did not rule upon it. Harris, 129 Ill. 2d at 184-85, 187-88, 544 N.E.2d at 384, 385-86.

(3) Mr. Thornton. As we have noted earlier; the State excluded Mr. Thornton because at age 31, he was close in age to defendant and because during the voir dire he continued looking at defendant, while avoiding looking at the judge. The fact that a prospective juror is similar in age to the defendant is a legitimate, specific, race-neutral reason for exclusion. (Hope, 137 Ill. 2d at 459-60.) However, even if we discount this reason, we are still left with Mr. Thornton’s demeanor, which concerned both the prosecutor and the judge. The demeanor of a prospective juror, or his outward manner or bearing, “has anciently been regarded as being of significance” and “has traditionally been a factor of importance in jury selection.” (Young, 128 Ill. 2d at 20, 538 N.E.2d at 457; Mack, 128 Ill. 2d at 239-40, 548 N.E.2d at 1112.) Also, “a peremptory challenge traditionally could be based on no more than ‘ “ ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.’ ” ’ ” (Young, 128 Ill. 2d at 22, 538 N.E.2d at 458, quoting Batson, 476 U.S. at 135, 90 L. Ed. 2d at 113, 106 S. Ct. at 1743 (Rehnquist, J., dissenting).) Although as the Young court stated, there is appeal to the contention that a prosecutor’s citation of demeanor can easily be used as a subterfuge for racially motivated exclusions, the trial judge is in the best position not only to observe the behavior of the prospective juror, but also to evaluate the prosecutor’s sincerity; thus “ ‘a reviewing court ordinarily should give [the judge’s] findings great deference.’ ” (Young, 128 Ill. 2d at 21, 538 N.E.2d at 457, quoting Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21.) In the present case, the trial judge felt that indeed Mr. Thornton avoided looking at him except when directly questioned and found that, albeit subjective, the prosecutor’s reason for excluding him was legitimate and racially neutral. In our opinion, this finding cannot be said to be against the manifest weight of the evidence.

(4) Ms. Johnson. The State peremptorily challenged Ms. Johnson because the State did not feel it had enough information about her to make an educated decision to accept her. Such explanations “should be closely scrutinized since they can be easily utilized as a pretext for discriminatory challenges.” (Harris, 129 Ill. 2d at 188, 544 N.E.2d at 386.) When evaluating such explanations, a reviewing court “should consider whether the State made any attempt at discovering the unknown information [citation] by, for example, requesting that supplemental questions be asked during voir dire [citation].” (Harris, 129 Ill. 2d at 188, 544 N.E.2d at 386.) At the Batson hearing, defense counsel brought to the judge’s attention the fact that the prosecutors had an opportunity to ask additional questions, but did not do so. In response, the judge reiterated his conclusion that the State’s reason was legitimate and race neutral. Upon review, keeping in mind that prosecutorial explanations for the exercise of peremptory challenges need not rise to the level necessary for exclusions for cause (Harris, 129 Ill. 2d 123, 544 N.E.2d 357) and that the trial court’s findings of those explanations depend extensively on the judge’s evaluation of the prosecutor’s credibility (McDonald, 125 Ill. 2d 182, 530 N.E.2d 1351), we cannot say with any degree of confidence that the judge’s finding was contrary to the evidence. Because the trial court did not make any specific finding with respect to a second proffered explanation, that Ms. Johnson was close in age to one of the State’s witnesses, Lesa O’Neal, we may not consider it on appeal. Harris, 129 Ill. 2d at 185, 187-88, 544 N.E.2d at 384, 385-86.

(5) Ms. Douyon. Citing McDonald, defendant contends that by excluding Ms. Douyon because she resides near the scene of the crime, the State impermissibly engaged in “a group-based exclusion” which would effectively eliminate blacks from the jury simply because they live on the South Side of Chicago, a predominantly black neighborhood. We recognize the State’s concern that a juror who lives in close proximity to the area where the offense took place may overhear certain information about the offense during the pendency of the trial and thereby lose his or her objectivity. (See United States v. Andrade (8th Cir. 1985), 788 F.2d 521 (potential juror’s residence in area of defendant’s alleged criminal operation a proper basis for exclusion), cert, denied (1986), 479 U.S. 963, 93 L. Ed. 2d 408, 107 S. Ct. 462; see also Hooper, 133 Ill. 2d at 509-10, 552 N.E.2d at 701.) Although the fact that Ms. Douyon lives approximately five miles from 103rd and LaSalle Streets makes the State’s position more tenuous, we cannot say that the trial court’s finding that the prosecutors’ exclusion of Ms. Douyon was not racially motivated is contrary to the evidence. Nor may we consider the State’s contention that it struck Ms. Douyon from the jury because she is a nurse’s aide in a hospital in the immediate vicinity of the hospital where the victim was taken after being shot, since this explanation came to light for the first time only on appeal.

Defendant does not complain about the removal of a sixth black venireman, Jerry Brown, who, as noted earlier, failed to indicate on his jury summons card that he had been arrested twice before. The trial court refused to excuse him for cause, but found that the State’s use of a peremptory strike against him on account of his criminal record was racially neutral and legitimate.

In sum, we find that the evidence supports the trial court’s final determination that there was no systematic exclusion of members of the black race from the jury. In the absence of other complaints regarding the procedural fairness of defendant’s conviction, we find that defendant received a fair and impartial trial.

REVIEW OF THE SUFFICIENCY OF THE EVIDENCE

Defendant challenges the sufficiency of the evidence used to convict him, contending that the State failed to prove him guilty of murder beyond a reasonable doubt. Our supreme court offers us decisive guidance in resolving defendant's challenge in People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89, wherein it held that the relevant question a reviewing court must ask 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.’ ” This standard demands that we resolve all issues of weight and credibility and conflicts in the evidence in favor of the State. (128 Ill. 2d at 51, 538 N.E.2d at 473-74.) We may reverse a conviction only if “the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” 128 Ill. 2d at 51, 538 N.E.2d at 474.

Defendant argues that various inconsistencies in the testimony of witnesses raise a reasonable doubt. For example, he notes that Anderson saw him holding a black gun against his right thigh but did not see a hat, whereas at about the same time Cunningham saw him holding a black hat over his right hand but did not see a gun. Also, Cunningham testified at trial that a man walked up to defendant and said “give me the gun, give me the gun” shortly after the shooting; but Cunningham did not mention a gun to the police, relating that the man said merely “give it to me, give it to me.”

Furthermore, defendant contends that certain evidence used to convict him was too weak to support a finding of guilt beyond a reasonable doubt. For instance, he maintains that the artificial lighting conditions and general confusion at the scene of the crime raised a doubt about the witnesses’ ability to clearly observe what was happening. Also, he contends that the results of the gunshot residue test were fatally inconclusive because (1) defendant could have tested positive for antimony, barium and lead if he worked in a foundry or had handled gasoline; and (2) the police officer who administered the test could not determine positively whether defendant had fired a weapon or merely handled one after it discharged.

Defendant further argues that the evidence was insufficient because it was purely circumstantial: no one saw him fire the shots. And finally, Iva Brown’s alibi testimony and the fact that defendant remained on the scene of the crime and cooperated with the police raise additional questions of identity.

Although proper in closing argument, defendant’s contentions invite us to displace the trier of fact and to weigh the evidence and credibility of the witnesses, which is exactly what the Young standard admonishes the reviewing court not to do. When we interpret all of the evidence in a light most favorable to the prosecution, it becomes clear that a jury could have reasonably found defendant guilty beyond a reasonable doubt. The evidence at trial revealed that both Anderson and Cunningham saw defendant standing against a pole several feet from the victim only seconds before the shooting. Anderson saw him holding a gun, and Cunningham saw him hiding something under a hat that he believed was a gun. Cunningham also heard a man walk up to defendant and say “give me the gun, give me the gun.” The gunshot residue test, administered only three hours after the shooting to defendant who had been taken into custody only 10 minutes after the shooting, indicated with high probability that defendant had recently fired a weapon. Furthermore, during cross-examination, Officer Salabura testified that O’Neal identified defendant as the shooter to the police. Coupled with the inference of a motive arising from the fight over the victim’s treatment of O’Neal, this evidence points unmistakably to defendant’s guilt. Accordingly, we affirm.

Affirmed.

DiVITO, P.J., and HARTMAN, J., concur.

      Relying on Justice Simon’s dissenting opinion in People v. Payne (1983), 99 Ill. 2d 135, 144-51, 457 N.E.2d 1202, 1206-10, defendant maintains that the sixth amendment to the United States Constitution, which guarantees defendants the right to be tried by a fair cross-section of the community, also bars the use of peremptory challenges to exclude members of distinct racial groups from the petit jury. The Supreme Court definitively foreclosed this argument in Holland v. Illinois (1990), 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803. Affirming the Illinois Supreme Court’s decision, it held that the fair-cross-section requirement of the sixth amendment applies only to the racial composition of the venire, because its extension to the petit jury would cripple the peremptory challenge device which permits both the prosecution and the defense to actively participate in the selection of a fair and impartial jury. In Holland, the defendant, who was white, objected to the State’s peremptory exclusion of two black venire members from the petit jury. To date, the Illinois Supreme Court has not allowed such an extension of defendants’ rights under the State Constitution.