author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BRADDOCK, Defendant-Appellant.
    First District (1st Division)
    No. 1—91—1615
    Opinion filed June 1, 1993.
    Rehearing denied July 1, 1993.
    Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Laura Bertucci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, Larry Braddock, was charged by information with criminal sexual assault, aggravated criminal sexual assault, home invasion, and residential burglary. He waived his right to a jury trial and, following trial, was found guilty of criminal sexual assault. The circuit court sentenced him to a 9V2-year prison term. He appeals.

We affirm.

The victim, L.B., testified that she lived alone in an apartment at 3028 North Leavitt Street in Chicago. Her apartment, located on the second floor, was one of three in the building, a single-family house which had been redesigned to house separate tenants. L.B. knew defendant for about one month prior to the incident giving rise to the charges. L.B. also knew defendant’s two brothers, one of whom lived on her street. She conceded that defendant may have been at some of the neighborhood parties which she attended because they had mutual acquaintances. L.B. never dated defendant although he had “asked [her] out.” She declined because she did not consider defendant to be her “type” and because she “wasn’t interested.”

On September 2, 1989, L.B. returned to her apartment at 10 p.m. After talking to a friend on the phone and listening to the radio, L.B. fell asleep around midnight. At that time, the door to her apartment was locked and her window was “latched.” Later that morning, L.B. was awakened by defendant, who was on top of her with his hand over her mouth. Defendant told her to “be quiet and you won’t get hurt.” Defendant then placed his hand around her throat, removed his clothing, and began to fondle her. L.B. was frightened of defendant and believed his threats against her. Defendant removed L.B.’s underwear and nightshirt and placed his penis in her vagina. Defendant told her that he had “always wanted” her. After the intercourse, defendant tried to pull L.B. next to him, but she objected. Defendant then “strangled” her, and L.B. stated that she “almost passed out.” Defendant then “collapsed into a sleep.” L.B. stated that this was around 5:30 a.m.

After making sure that defendant was asleep, L.B. got up and went into the kitchen to inspect the front door. It was not damaged. She noticed a screwdriver, which did not belong to her, resting atop the radiator near her bed. L.B. then noticed that the window screen was not in her window. L.B. got dressed quickly and left the apartment. She went to her mother’s apartment, which was in the basement of the same building as L.B.’s apartment. Her mother phoned for the police, who arrived several minutes later. L.B. told them that defendant was still in her apartment.

L.B. was taken to the hospital by police where she was examined and treated. L.B. denied that she had spoken to defendant on the afternoon of September 2 and denied that the two had made plans to see each other that night.

L.B.’s mother, Carol, testified that she lived in the basement apartment of the same building in which L.B. resided. Prior to the incident in question, Carol had warned L.B. to be more careful of “who she let up there.” She also told L.B. not to host any parties in her apartment. On September 3, 1989, Carol was awakened by L.B.’s screams at around 6 a.m. L.B. was outside her door “screaming, jumping up and down and shaking.” Carol described her daughter as “hysterical” and took her next door to a neighbor’s house to call police. Carol noticed several red marks on L.B.’s neck.

Theresa Tucker testified that she had spoken to L.B. on September 2 between 10 p.m. and midnight. She next heard from L.B. the following morning when L.B. called her to ask her to meet her at the hospital. At the hospital, Tucker noticed that L.B. had bruises on her neck and was “hysterical.”

Chicago police officer Steven Doyle was called to the scene in response to a criminal sexual assault complaint. He and his partner met with L.B. and her mother upon arriving at the address. L.B. informed him that her assailant was still in her apartment. Doyle found defendant in the apartment, asleep and naked. Doyle placed defendant under arrest and then took L.B. to the hospital. Doyle described L.B. as “hysterical.” She also had “red marks” on her neck and arm.

Arthur Dunne, an evidence technician with the Chicago police department, processed the scene. He found a hat, later identified as belonging to defendant, under a tree adjacent to the window of L.B.’s apartment.

The parties stipulated that Dr. Lisa Horn treated L.B. at the hospital. L.B. told Dr. Horn that she had been raped. Dr. Horn’s examination revealed tenderness and redness to both L.B.’s shoulder and neck areas, which was indicative of “recent trauma.”

James Nuckles, defendant’s cousin, testified on defendant’s behalf. Nuckles has known L.B. for seven years. On August 28, 1989, he and L.B. were at a party together and left to go to L.B.’s apartment to watch some movies. L.B. told Nuckles that he could not make any noise in the house because she was not allowed to have anyone there.

Defendant testified that he worked as a carpenter for the Chicago Northwestern Railroad. He had known L.B. for six to seven years, but knew her only by the name “Cricket.” Defendant had been to her apartment before September 3, 1989. He had apparently been invited to a party held there by L.B.’s roommate at the time. He had also attended several other parties in the neighborhood and had seen L.B. at them.

During the afternoon of September 2, 1989, defendant was visiting his brother who lived on the same street as L.B. Defendant saw L.B. walking down the street and asked her if she had plans for the evening. Defendant suggested that the two “could get together” when L.B. stated she had no plans for the evening. According to defendant, L.B. replied, “sure.”

At around midnight, defendant was at a bar with his friend, Peter Clark. Clark was the brother of defendant’s brother’s wife, and defendant gave Clark a ride to her home, which was near L.B.’s apartment. After dropping Clark off at the house, defendant went to L.B.’s house and knocked on the door for 15 minutes. When he received no answer, he went into the yard and yelled up to L.B.’s apartment. L.B. then let him in through the front door.

In the apartment, L.B. gave him a beer and then the two began “making out.” They then engaged in consensual intercourse. Defendant later fell asleep and was awakened by police.

Defendant was taken to the police station where he told police that L.B. had admitted him into her apartment, that he and L.B. had sex, and that L.B. had consented to it. When defendant was told that his hat had been found in L.B.’s yard, defendant told them that he had climbed the tree to gain access to the apartment. Defendant maintained that he told police this only because they had promised him that he would be charged with battery and could “get out” on a bond. Defendant stated that he was crying and was upset because he did not want to lose his job.

In rebuttal, Chicago police detective Robert Guerrero stated that defendant initially told him that L.B. had let him into her apartment around 1 a.m. The two shared a beer, smoked some marijuana, and engaged in consensual sex. Guerrero then left the interview room. When he returned, he asked defendant why he lied to them because defendant’s brother had told police that defendant had been drinking with him until 4:30 a.m. Moreover, defendant’s hat had been found in L.B.’s yard and a window had been found out of its sill in L.B.’s apartment. Defendant then admitted to him that he had been drinking until 4:30 a.m. and, after, went to L.B.’s home where he climbed a tree and went through the window. He denied raping L.B.

Assistant State’s Attorney Kim Novi also testified that she interviewed defendant at the police station. He told her that he had climbed a tree and entered L.B.’s apartment through a window. He also told her that he had been drinking that night and that “whenever he drinks, he gets into trouble like this.” He told Novi that “in fact, he got in the same kind of trouble when he was in Iowa.” Defendant maintained that he did not rape L.B.

On appeal, defendant asserts that he was denied a fair trial due to the admission of certain testimony concerning similar “trouble” in Iowa. Specifically, defendant questions the propriety of the following exchange which occurred during his cross-examination:

“Q. [by the assistant State’s Attorney:] Did you tell her that you always get into trouble when you drink, and the same thing happened to you in Iowa.
A. [defendant:] No, I did not.”

In rebuttal, assistant State’s Attorney Novi testified that defendant had told her that he had been drinking prior to going over to the victim’s home, and that “whenever he drinks, he gets in trouble like this, and in fact, he got in the same kind of trouble when he was in Iowa.” Defendant insists that this evidence could only suggest that he had a propensity to commit the charged offense.

Defendant, however, did not object to this testimony nor did he raise the issue in his post-trial motion. As a result, the issue is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Defendant acknowledges his waiver of the issue, but suggests that he received ineffective assistance of counsel in this area. Because he makes that claim, we will review the issue on the merits.

Generally, in order to establish ineffective assistance of counsel, a defendant must show both that counsel’s representation fell below an objective standard of reasonableness and that a reasonable probability exists that, but for the error, the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) In adopting Strickland, our supreme court noted that a defendant bears a heavy burden to overcome the strong presumption in favor of a finding that defense counsel’s advocacy was effective. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, cert, denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) Further, the determination of the reasonableness of trial counsel’s actions must be evaluated from counsel’s perspective at the time of the alleged error, without hindsight, in light of the totality of the circumstances. Strickland, v. Washington, 466 U.S. at 668, 80 L. Ed. 2d at 674, 104 S. Ct. at 2051.

Evidence which tends to show that an accused has committed crimes or acts of misconduct which are distinct and entirely unrelated to the one for which he is being tried is both incompetent and prejudicial. (People v. Curry (1975), 25 Ill. App. 3d 637, 323 N.E.2d 778.) When evidence of prior criminality is not direct, but merely inferential, the determinative issue is the probative and prejudicial effect of the nexus between the admitted and prior criminality. People v. Price (1979), 76 Ill. App. 3d 613, 633, 394 N.E.2d 1256.

In the present case, there was no evidence that defendant had been arrested and charged with any other crime other than those before the court. The trier of fact only knew that there had been similar “trouble” in Iowa and that defendant had been charged with the crimes at issue here. The term “same kind of trouble” is vague and could have referred to any one of the charges for which defendant was being tried. We note that the multicount information brought against defendant included not only criminal sexual assault charges, but charges of residential burglary and home invasion as well. In that way, the evidence that defendant complains of was not direct evidence of prior criminality, but only speculation. This court has previously held that

“[i]n our opinion those references which provide no details as to whether a criminal activity was involved, what offenses they may have been, or on what bases defendant was suspected of committing them, were not substantially prejudicial.” People v. Allen (1981), 96 Ill. App. 3d 871, 879, 422 N.E.2d 100.

Defendant’s reliance on People v. Hughes (1977), 51 Ill. App. 3d 985, 367 N.E.2d 485, is misplaced. There, a police officer testified that, at the time of his arrest, defendant told him that “something similar to this happened in Troy, Missouri, and he had shot a man in Troy, Missouri.” (People v. Hughes, 51 Ill. App. 3d at 988.) Counsel objected to the statement, and the trial judge admonished the jury that the statement was being allowed only for the purpose of what defendant said at the time he was arrested. (People v. Hughes, 51 Ill. App. 3d at 989.) On appeal, the appellate court found that defendant had waived the issue by his failure to raise it in his post-trial motion. Because the court had reversed the conviction on other grounds, the court found it “unnecessary” to determine whether the error amounted to plain error. (People v. Hughes, 51 Ill. App. 3d at 989.) Despite the finding of waiver and without its excusal under the plain error rule (134 Ill. 2d R. 615(a)), the court addressed the issue merely to avoid future problems on retrial. Given this treatment, we question how binding that portion of the Hughes opinion is on this court. In any event, the Hughes court found that the remark was improper because a reference to another shooting incident could only suggest to the jury a propensity to commit such offenses. Moreover, the appellate court found the circuit court’s admonishment to the jury to be incorrect. As noted previously, the testimony at issue here was vague and did not contain a specific reference to any of the crimes for which defendant was on trial.

We have reviewed the other cases cited by defendant and find them distinguishable as they address more egregious remarks than those at issue here. For these reasons, defendant has not met his burden in establishing that his trial counsel was ineffective.

Defendant next contends that L.B.’s testimony was improperly bolstered when the court allowed testimony from other witnesses, namely her mother, the examining room physician, and police officers, which repeated L.B.’s charges of sexual assault.

Defendant neither objected to the testimony at trial nor included the issue in his post-trial motion. As a result, it is waived. (People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) Moreover, we find no basis to excuse this waiver under the plain error doctrine. See People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

Defendant also maintains that the State failed to prove his guilt beyond a reasonable doubt, arguing that L.B.’s testimony was fraught with inconsistencies and contradictions.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) Upon review, the appellate court’s function is not to retry the defendant, but to 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 in original.) People v. Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Essentially, defendant claims that L.B.’s testimony is unbelievable. However, in a bench trial, it is the function of the trial judge to determine the credibility of witnesses, to weigh evidence, and to draw reasonable inferences from that evidence, as well as to resolve any conflicts. (People v. Berland (1978), 74 Ill. 2d 286, 305-06, 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. 64.) Moreover, the reviewing court will not set aside the circuit court’s judgment unless the proof is so unsatisfactory, improbable, or implausible as to justify a reasonable doubt as to the defendant’s guilt. People v. Johnson (1986), 114 Ill. 2d 170, 190, 499 N.E.2d 1355, cert, denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618.

Applying these principles to the present case, it appears that the trial judge was aware that L.B. contradicted herself as to whether she and defendant knew each other, but resolved any conflicts against defendant. The trial judge also noted that L.B. was a “rather simple person” who was “easily misled,” but who was “clear and convincing” as to the elements of the assault. A review of the record reveals that any contradictions made by L.B. were not of such a magnitude as to justify a reasonable doubt of defendant’s guilt. Defendant also places much weight on the fact that L.B. was not allowed to have visitors in her apartment and, therefore, needed to fabricate a story which would explain defendant’s presence in her apartment. This argument is unpersuasive. There was no evidence presented which would establish that anyone knew that L.B. had a visitor. Given that fact, there was no need for L.B. to run to her mother’s apartment in the hysterical manner testified to at trial. Such an outcry would serve only to draw attention to defendant’s presence, a presence which, up to that point in time, had gone undetected. Accordingly, we will not disturb the circuit court’s finding of guilt.

The judgment of the circuit court is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE TULLY

license: Public Domain

text:
      In re J.F. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. John Furlan, Respondent-Appellant).
    First District (3rd Division)
    No. 1 — 89—2222
    Opinion filed December 9, 1992.

      Rita A. Fry, Public Defender, of Chicago (Henry L. Hams, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Brigid Kenney, arid Theresa Harney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

Respondent John Furlan appeals from the order of the Cook County circuit court finding him to be an unfit parent and terminating his parental rights to his two minor daughters, J.F. and D.F. We affirm for the following reasons.

On November 27, 1985, J.F. and D.F., ages three years and two years, respectively, were adjudicated wards of the court pursuant to a finding of neglect by their natural father, John Furlan. As of May 10, 1983, J.F. had been placed in the temporary custody of the Department of Children and Family Services (DCFS) and thereafter was placed in the care of her foster parents by her guardian, Gary T. Morgan. On November 9, 1987, the State filed a petition for appointment of a guardian with right to consent to adoption, wherein the State alleged, inter alia:

“The parents are unfit pursuant to Ill. Rev. Stat. 1989, ch. 40, par. 1501 — 1D [sic] and Ill. Rev. Stat. 1989, ch. 37, par. 705 — 9, in that: They have failed to maintain a reasonable degree of interest, concern or responsibility as to the children’s welfare;
They have failed to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parents within 12 months after the adjudication of neglect under Section 2 — 4 of the Juvenile Court Act, or after an adjudication of dependency under Section 702 — 5 of the Juvenile Court Act, on or about March 28, 1985, which conduct is in violation of Ill. Rev. Stat. 1989, ch. 40, 1501— 1D(m) [sic] and ch. 37, par. 705 — 9; and
They have failed to make reasonable progress toward the return of the child to such parents within 12 months after the adjudication of neglect under Section 2 — 4 of the Juvenile Court Act ***.”

The petition further stated that the minor children had been in the care of the same foster parents throughout their infancy, since 1983, and the foster parents desired to adopt the children. The guardian also stated that the adoption by the foster parents would be in the children’s best interests. In 1988 the natural mother, Carol Furlan, voluntarily surrendered all parental rights to the children.

At the hearing on the State’s petition to terminate all parental rights, Thomas Leo, a family therapist with DCFS, testified that he began counseling sessions with John Furlan in June of 1986. John Furlan had explained that he had been to 14 different psychiatric hospitals in the course of his life and had a history of violence, having been abused by a stepfather. Although Furlan attended four parenting sessions, he was not able to focus on the topics discussed, for example, child management, and in Leo’s opinion he did not successfully complete the treatment. Leo concluded that Furlan was “very disturbed” with a long history of psychiatric problems and violent behavior. Leo also testified as to Furlan’s inability to properly discipline and manage his daughters and that instead of making progress toward improvement, his behavior actually regressed during counseling. Leo testified that his agency utilized family counseling, parent groups and observed visits as a means of reuniting the family. After August 1986 Furlan discontinued any regular attendance at the counseling sessions.

Rose Pinnock, a caseworker for DCFS, was assigned to the case of J.F., in March 1986. She stated that John and Carol Furlan were not attending counseling in accordance with a service plan and were not making progress toward the return of their children, which was the stated goal of the service plan. One of the objectives of the plan was that the father would demonstrate appropriate concern and behavior for his children. In her evaluation, she found that John Furlan’s efforts to secure stable living accommodations and to have the children returned to him were unsatisfactory, since he was “unable to stabilize his own lifestyle.”

Tom Stabnicki, a child welfare specialist for DCFS, testified that he had given John Furlan four goals or objectives in order to progress toward the return of his children: suitable housing, a stable income, psychological counseling and regular visitation with the children. During supervised visits with the children, Furlan became distant and showed a lack of interest after the initial greetings. Stabnicki evaluated Furlan’s progress during 1984 and 1985 to be unsatisfactory. Although Furlan showed a genuine willingness to secure housing and a stable job, there was very little change or progress in his behavior toward the children or in developing parenting skills.

John Furlan testified on his own behalf that, shortly after the birth of D.F., his wife, Carol Furlan, was hospitalized for psychiatric treatment. Upon her release, he and Carol and the children resided at a motel. In May of 1983, the police arrested Carol Furlan for abuse and neglect and took her, along with J.F. and D.F., into custody. Prior to the arrest, Carol Furlan had called the police and told them that John was going to murder her and the children. He also stated that he lived at the Hotel Lincoln, where he worked. He described visits with his children when he took them to the park or to lunch. According to Furlan, the counseling sessions with Thomas Leo were not very helpful and did not offer him any advice on suitable housing or management of his children. He admitted having a long history of psychiatric problems and approximately 13 hospitalizations.

At the conclusion of all testimony, the trial court found John Furlan to be an unfit parent in that he failed to correct the conditions which were the basis for removal of the children within 12 months after adjudication, or to make reasonable progress toward the return of said children within 12 months of adjudication. (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m).) As a result, Furlan’s parental rights were terminated and Gary T. Morgan was appointed guardian of J.F. and D.F., with the right to consent to adoption. While this case was pending on appeal, J.F. and D.F. were adopted by their foster parents.

On appeal, respondent contends that he was making reasonable progress toward the return of his children, and therefore, termination of his parental rights was improper. In support thereof, he cites In re Hoback (1981), 95 Ill. App. 3d 169, 419 N.E.2d 713, wherein the appellate court held a finding of neglect to be against the manifest weight of the evidence. In Hoback, the minor child was initially removed from his parents due to lack of parental interest, an unsuitable home life, an injurious stepfather and marital discord due to the respondent-mother’s alcohol dependency. After removal of the child, a DCFS caseworker set the following goals for respondent-mother: to move near her husband, find employment, obtain suitable day care and attend counseling with her husband. The record revealed that respondent-mother did move near her husband, found employment, attempted to visit her son and her primary concern was the return of her son. There was also a lack of evidence as to any continual abuse of alcohol by the respondent. In reversing, the court found that the State failed to meet its burden of proof with clear and convincing evidence sufficient to terminate the parental rights of the respondent.

In the instant case, respondent was given the following objectives: suitable housing, a stable income, psychological counseling and regular visitation with the children. Although respondent made periodic visits with his children, for a period of four months, he traveled out of State and made no attempt to contact them. Moreover, respondent made no progress in developing his ability to socialize with and manage the children during one-hour visits. At the beginning of the hour, he would be cheerful and receptive but by the end of the hour he would be distant and unreceptive, as well as unwilling to initiate play with the children. As far as stability of income, the record reveals that respondent could not maintain a job for any period of time. He testified that he changed jobs more than three times in an 18-month period, and at the time of the hearing he was on probation because of a physical altercation with a coworker. The caseworkers and counselors who worked with respondent all found that he had not successfully completed a counseling program and had not made satisfactory efforts toward the return of his children. Although respondent did eventually secure a two-bedroom apartment, this was not until 1987, more than three years after his children were removed from him. At the time of the hearing in 1989, respondent and his new wife were living in a one-bedroom apartment.

While parental rights and responsibilities are of great societal and human importance, a parent’s rights may be involuntarily terminated in the interests of the child’s welfare, if the parent is adjudicated unfit pursuant to section 1501(D)(m) of the Illinois Adoption Act. (Ill. Rev. Stat. 1985, ch. 40, par. 1501(D)(m).) A finding of unfitness must be supported by clear and convincing evidence. (In re Paul (1984), 101 Ill. 2d 345, 461 N.E.2d 983.) On appeal, we will not reverse the finding of the trial court unless it is against the manifest weight of the evidence. In re C.P. (1989), 191 Ill. App. 3d 237, 547 N.E.2d 604.

In this case, respondent would have us return to him his children who have lived with their foster parents since their infancy. While we recognize that parents with minimal means may only be able to make limited progress toward their children’s return, we must balance this against the needs and welfare of the two minor girls in this case, who have spent the last nine years in the care of their foster family. (See In re R.M.B. (1986), 146 Ill. App. 3d 523, 496 N.E.2d 1248.) Moreover, the evidence in this case is not so closely balanced such that we can conclude the decision of the trial court is against the manifest weight of the evidence. While we recognize that respondent did make some effort toward the return of his children, the overall record and the lapse of time subsequent to the adjudication suggest that his efforts were not sufficient.

For all of the foregoing reasons, we hereby affirm the decision of the Cook County circuit court.

Affirmed.

RIZZI and CERDA, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SUNDELEEN Y. FRAZIER et al., Defendants-Appellees.
    Second District
    Nos. 2 — 91—0718, 2 — 91—0719 cons.
    Opinion filed July 29, 1993.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellee Sundeleen Frazier.
    John F. Donahue, of Donahue, Sowa & Bugos, of Lisle, for appellee Kassandra Person.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendants, Sundeleen Y. Frazier and Kassandra Person, were both indicted on three counts of retail theft in excess of $150 (Ill. Rev. Stat. 1991, ch. 38, pars. 16A — 3(a), 16A — 10(3) (now 720 ILCS 5/ 16A — 3(a), 5/16A— 10(3) (West 1992))). Defendants each brought a motion to suppress evidence seized by police after a Terry stop (see Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868) of their vehicle on March 28, 1991. Following a joint evidentiary hearing, the trial court granted defendants’ motions. The State filed timely certificates of impairment and notices of appeal with respect to each defendant. The only issue raised is whether the trial court erred in finding that the police lacked a reasonable, articulable basis to stop defendants’ vehicle.

Thomas Sheehan, a police officer for the City of Naperville, testified at the evidentiary hearing that on March 28, 1991, he was assigned to the special enforcement team, a plainclothes patrol unit. His duties included patrolling “major high crime areas,” in particular retail malls. At approximately 4 p.m., Sheehan and his partner, Officer Trotsky, were in an unmarked car in the Montgomery Ward’s Kids Store (store) parking lot of the Westbridge Court Mall. Sheehan observed defendants and another individual riding in a blue Pontiac Sunbird. Sheehan stated that he had a clear view of the vehicle and its occupants. He identified Frazier as the driver and Person as the front seat passenger. He said that a third individual was seated in the rear of the vehicle. The car parked approximately 50 feet in front of Sheehan’s location. Sheehan testified that both defendants exited the vehicle and entered the store together while the other passenger stayed in the car. Frazier was wearing a long, very bulky coat and had nothing in her hands. Person was also wearing a long coat and had nothing in her hands.

Approximately 10 minutes later, Frazier exited the store and returned to the Sunbird. She was not carrying bags or anything else in her arms. Sheehan stated that Frazier’s “coat was open, it was not buttoned so I could tell her midsection appeared to be larger than when she first went in.” Aside from noting that Frazier appeared to have gained weight since she entered the store, Sheehan stated that, at her midsection, Frazier’s coat looked bulkier than it had when she entered the store. After Frazier got into the Sunbird, Sheehan observed her “[m]aking numerous arm movements, body movements, moving back and forth.” He described these movements as being “[t]owards her body, towards her midsection,” and stated that “[a]fter these numerous movements of her hands moving toward her body she then at one point leaned completely over laying [sic] down into the front passenger seat and then came back up again. *** While she was making these movements the brake lights kept going on and off in the car and at one point the left turn signal actually activated.” Sheehan acknowledged that the Sunbird had bucket seats which reached to the low part of Frazier’s back and that he could not see anything being pulled away from her body. Sheehan also admitted that the police report he prepared regarding this incident stated that Frazier was observed leaning over to the driver’s side of the car rather than the passenger’s side, but he claimed that that aspect of the report was an error.

Person left the store later. Sheehan stated, “When [Person] walked into the store her arms were at her sides. As she came out of the store her left arm was across her coat holding it tight to her body.” Person was not carrying bags or anything else in her arms. Person reentered the Sunbird, and the car left the store’s parking lot. Sheehan stated that he did not see anyone pass any objects from the front seat to the rear seat at any time prior to leaving the parking lot.

Sheehan testified that the Sunbird drove out of the parking lot and onto Aurora Avenue, headed toward Illinois Route 59. Sheehan and his partner followed the Sunbird in their vehicle. At the intersection of Aurora Avenue and Route 59, the Sunbird stopped for a red light. While his vehicle was stopped behind the Sunbird for “[j]ust a few seconds” at the light, Sheehan observed Person “removing clothing from the front seat with coat hangers still attached, passing it back to the person in the rear seat, who put it down either next to her or somewhere on the floor, is what it appeared.” Sheehan admitted that he could not see where in the front seat the clothing had come from. Sheehan stated that the hangers were white, but he could not tell what color the clothing was. He did not see any tags on the clothing. Sheehan stated that “some clothing” was passed to the rear passenger, but he did not specify the number of articles or the type of clothing.

Sheehan stated that the vehicle turned onto Route 59 and proceeded southbound. Sheehan and Trotsky followed the Sunbird on Route 59 for approximately one-quarter mile and then stopped the car. Sheehan admits that prior to the stop he didn’t communicate with anyone from the store, run a warrant check on any of the vehicle occupants, observe the Sunbird violate any traffic laws, or receive any third-party information about the suspects.

Dale Trotsky, a police officer for the City of Naperville, testified that on March 28, 1991, he was also assigned to the special enforcement team and was patrolling the Westbridge Mall with his partner, Officer Sheehan. He testified that defendants got out of the blue Pontiac Sunbird, which was parked about 25 feet away from his location, and entered the store together. Both women were wearing long jackets. He did not recall whether Frazier’s jacket was opened or closed, but he stated that he could not see what she was wearing underneath it. A third individual, seated in the rear of the Sunbird, remained in the car. After about 10 minutes, Frazier exited the store and walked back to the vehicle. Trotsky testified that when Frazier came out, “[t]here seemed to be a bulge in the midsection of her person which was different than her appearance when she walked into the store.” When asked to describe what he meant by a bulge, Trotsky stated, “It was large in nature to the point where you would think that somebody would be pregnant or something like that.” Trotsky stated that when Frazier left the store, her jacket was closed,- and he admitted that he could not tell what she was wearing underneath it.

Trotsky testified that Frazier got into the driver’s seat of the Sunbird, and he made the following observations:

“She conducted — there was a lot of motion in regards to reaching down, pulling up, continually, the arms going up in the air and down, you know. There was a pulling motion within her own person, is the best way to describe it. *** Her hand motions were specific to where she was sitting, not anywhere else in the vehicle but just where she was. *** While she was motioning up and down pulling, making pulling motions, the brake lights on her vehicle were going on and off. She appeared to be tapping the brake, and at one time she made a gesture bearing down to her right as to like lay [sic] down on the front seat, at which time she moved back up and the turn signal on the vehicle, left turn signal on the vehicle had gone on.”

Trotsky stated that at the time Frazier lay down, “[y]ou could still see part of a person, noting that there was motion within the front portion of the vehicle.” He admitted that the Sunbird’s trunk and seats obstructed his view of the car’s occupants, and he was unable to see below their shoulders. Trotsky testified that Frazier’s motions could be characterized as either “pulling” or “pushing” motions. Trotsky also stated that at the time Frazier entered the car she began handing items to the passenger in the backseat, but he could not tell what the items were.

Person left the store about five minutes after Frazier had returned to the Sunbird. Trotsky stated that Person was clutching her jacket when she returned to the car, and she was not carrying any bags. After Person got into the front passenger’s seat, the Sunbird drove out of the parking lot. It proceeded down Aurora, stopping for a red light at the intersection of Aurora and Route 59. While the vehicle was stopped, Trotsky saw Person handing clothing over the seat to the other passenger, and he could see that the clothing was still on a hanger. He did not recall what type of clothing it was, and he stated that he did not see any tags hanging from the clothing. Trotsky went on to testify that the passenger in the rear of the vehicle made a motion as if to receive the property or items and then made a motion down to the floor area or the area next to her.

Trotsky testified that he did not see either defendant carrying any clothing with her when she exited the car, or when she later entered the car. Trotsky could not recall what type of seats the Sunbird had.

The trial court granted defendants’ motions, commenting:

“[L]ooking at the facts in our case you have got the three people in the car, they are observed pulling into the parking lot, two of them go into the store, and the officers, there is some impeachment between the officers’ testimony, although not a lot, but the two women come out separately. *** [A]s far as the fact that they come out separately *** to me that doesn’t really mean much at all, probably happens all the time. If I were to go shopping with my wife and I might get a little tired and might go out to the car to listen to a sporting event or something like that. So the fact that they come out of the store I don’t think really is any kind of a fact that the State can point to.
The one fact that *** the State is emphasizing is that apparently when one defendant came out of the store, it appeared to the officers that — in the language of the one officer was that the midsection of the defendant appeared to be larger. Officer Trotsky, I think, referred to it as a bulge. I think that is perhaps a fact, one part, one fact that the State can point to.
But some other things that have been mentioned by the State *** the second defendant in the store hadn’t come back out to the car yet, the other individual in the car appeared to be nervous and looking around. Is it so unusual that a person in a car while another person is in the store might be looking,around trying to see if that person is coming out of the store yet? I don’t know that you can put any criminal, necessarily put any kind of a criminal attachment to those actions.
When the third person does come out of the store going to the car she has an arm close to the body. Again, can we necessarily attach any criminal activity to that?
After all three people are in the car the car then leaves. The officers follow the car and they see some clothing being passed, and the clothing had hangers on it from the front to the back. Officer Trotsky also testified as to his observing some movements prior to the car moving, and Officer Sheehan did, too, but from their standpoint they really weren’t able to see what they were doing, they were just able to see some movements. I don’t know that you really can say that these are furtive movements. *** But I think basically what you have here, the car is in a regular parking space, the mall is open, two people walk into a store, they are not wearing any unusual clothing, the police have never seen these individuals before, they have had no prior contact with these individuals before. In the whole time they are observing them at least up until the stop there’s been no communications with the store. The officers are unaware that a crime occurred.
The facts that I think we are expected to look at here are basically the one coming out of the store with some kind of a bulge or whatever and then after the car moves some clothing is being handed back and that clothing is still on hangers.”

The State argues that the trial court committed error by granting defendants’ motions to suppress. Defendants respond that the trial court properly found that the officers lacked a reasonable, articulable basis to justify stopping of defendants’ vehicle. Initially, the State asserts that because neither the facts nor the credibility of the witnesses was at issue, the trial court’s ruling should be reviewed de novo. (See People v. Abney (1980), 81 Ill. 2d 159, 168; People v. Eyler (1985), 132 Ill. App. 3d 792, 798.) Defendants respond that the trial court’s ruling must be affirmed unless it was manifestly erroneous. See People v. Grice (1980), 87 Ill. App. 3d 718, 722.

As a general rule, the law provides that each case must be decided on its own facts, and a trial court’s ruling on a motion to suppress will not be disturbed unless it was manifestly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99; People v. Galdine (1991), 212 Ill. App. 3d 472, 478; People v. Bujdud (1988), 177 Ill. App. 3d 396, 401.) This standard is clearly applicable where the motion turns upon findings of fact determined through an assessment of the weight and credibility of the evidence. (See People v. Loftus (1983), 111 Ill. App. 3d 978, 981-82; People v. Jennings (1989), 185 Ill. App. 3d 164, 170.) However, suppression motions are best characterized as raising mixed questions of fact and law, and, if all factual disputes in a case have been resolved, then only a question of law remains. (See, e.g., People v. Foskey (1990), 136 Ill. 2d 66, 76; Eyler, 132 Ill. App. 3d at 798; Loftus, 111 Ill. App. 3d at 982.) Therefore, it is important to note the difference between a ruling rendered by applying the law to stipulated or undisputed facts and the process of evaluating the credibility of testimony and weighing evidence. (See Loftus, 111 Ill. App. 3d at 981-82.) Where both the facts and the credibility of the witnesses are uncontroverted, the question presented becomes a legal one, subject to de novo review. (Foskey, 136 Ill. 2d at 76; Abney, 81 Ill. 2d at 168; Galdine, 212 Ill. App. 3d at 478-79.) Also, if it is apparent that the trial court’s ruling on a motion to suppress was entirely based on a witness’ testimony which it has accepted as credible, and there is no ground upon which the trial court’s credibility determination can be rejected as “clearly unreasonable,” then a reviewing court need only determine, as a matter of law, whether the witness’ testimony satisfies the applicable legal requirements. See Clark, 92 Ill. 2d at 99.

Because the trial court has heard the testimony, seen the witnesses, and had the opportunity to observe their demeanor, it is in the best position to judge the witnesses’ credibility, determine the weight to be accorded their testimony, decide the inferences to be drawn from the evidence, and resolve any conflicts in the evidence. (See People v. Reid (1990), 136 Ill. 2d 27, 61.) A reviewing court will not substitute its judgment on these matters for that of the trial court unless it finds the court’s ruling to have been manifestly erroneous.

Although the trial court noted that there were minor inconsistencies in the testimony given by Sheehan and Trotsky, it resolved those conflicts and made specific findings of fact. The court commented that the “articulable facts” being asserted in support of the Terry stop were that the officers had observed Frazier “coming out of the store with some kind of bulge *** and then after the car moves some clothing is being handed back and that clothing is still on hangers.” Because the largely uncontroverted record before the trial court supported its findings of fact, we need only review whether, as a matter of law, those facts were sufficient to provide the officers with a basis for their investigatory intrusion.

A police officer may stop and temporarily detain an individual for the purpose of a limited investigation if the officer is able to point to specific articulable facts which, taken together with reasonable inferences drawn from the officer’s experience, reasonably would justify the investigatory intrusion. (See Terry, 392 U.S. at 30, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884; see also Ill. Rev. Stat. 1991, ch. 38, pars. 107-14, 108-1.01 (now 725 ILCS 5/107-14, 5/ 108 — 1.01 (West 1992)).) To determine whether an investigatory stop was based upon a reasonable, articulable suspicion of criminal activity, an objective standard must be applied by the court (Bujdud, 177 Ill. App. 3d at 401), and a mere hunch or general suspicion is insufficient. (Eyler, 132 Ill. App. 3d at 800.) A stop is proper only if the facts available to the officer would warrant a man of reasonable caution to believe that the action taken was appropriate. (Bujdud, 177 Ill. App. 3d at 401; People v. Ellis (1983), 113 Ill. App. 3d 314, 318.) “Reasonableness” can be found if the facts and circumstances are both specific and articulable. (People v. McGowan (1977), 69 Ill. 2d 73, 78.) An investigatory stop may also be justified through the use of rational inferences drawn from facts known to the officers. (Bujdud, 177 Ill. App. 3d at 401.) Viewed as a whole, the facts and inferences relied upon must lead to the conclusion that the situation is so far removed from the ordinary that any competent police officer would be expected to act quickly to maintain the status quo, rather than observe the situation further. McGowan, 69 Ill. 2d at 78.

We recognize the significance of the circumstance that the stop in question was not based upon a general suspicion of some indeterminate criminal activity but, rather, upon a suspicion that defendants had perpetrated a specific crime. The facts which the officers articulated, and the trial court found, directly relate to the specific crime that the officers suspected defendants to have committed. When considering whether an officer was justified in making an investigatory stop, the facts need not be viewed with analytical hindsight, but instead should be considered from the perspective of a reasonable officer at the time that the situation confronted him or her. (People v. Scott (1992), 148 Ill. 2d 479, 503.) A Terry investigatory stop contemplates a brief intrusion, as minimal as possible, to verify information or to ascertain whether criminal activities have in fact taken place. (People v. Schacht (1992), 233 Ill. App. 3d 271, 275.) The scope of an investigatory encounter and the coextensive intrusion upon the individual stopped is minimized where, as here, the suspicions of police are directed to a specific offense, enabling the officers to proceed with a brief, investigative detention, i.e., to verify that the clothing passed to the rear seat passenger was not stolen from the store. This circumstance, in our view, strengthens the State’s position in the present case.

While recognizing that the officers’ testimony was somewhat inconsistent, the court found that Frazier was observed to have a noticeable bulge around her midsection when she left the store. The court also noted that some clothing was being passed to the backseat while the car stopped for a traffic signal. The trial court correctly noted that many of the officers’ observations were consistent with innocent activity. Also, the court may have been legitimately concerned with a lack of specificity with respect to some of the observations. For example, no testimony was provided concerning the number of items passed to the backseat. Nor were the officers able to describe the articles of clothing they saw, such as the type of clothing or whether it appeared to be children’s wear, or whether tags or labels were attached. These factors could have borne upon the weight of the testimony; however, the court did ultimately make specific factual findings, and those findings are supported by the record and provide a sufficient basis for our de novo review. Once the trial court determined that the officers had observed specific actions and details, only a question of law remained.

Although it is understandable that the trial judge may have been led to a different conclusion, upon further examination of the facts, it is our view that the police officers had more than a mere hunch or general suspicion of undefined criminal activity. They observed that Frazier’s appearance had changed significantly when she emerged from the store. The noticeable bulge which appeared around her waist triggered the officers’ suspicions that Frazier might be perpetrating a retail theft. The officers then focused their attention upon the suspects and saw clothing on hangers being passed from the front of defendants’ vehicle to the backseat passenger. When these observations are viewed in the context of the otherwise innocuous facts that neither defendant was carrying bags with possible purchases when they left the store, and Frazier’s unusual movements after entering the car, we conclude that the officers had a reasonable, articulable basis for intruding temporarily upon defendants’ freedom of movement by stopping the vehicle to conduct a brief inquiry into the matter.

For the foregoing reasons, the order of the circuit court granting defendants’ motions to suppress evidence is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and COLWELL, J., concur.


author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TAMMI S. HOOK, Defendant-Appellant.
    Second District
    No. 2 — 91—1199
    Opinion filed May 26, 1993.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Val Gunnarsson, State’s Attorney, of Mt. Carroll (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Tammi S. Hook, was convicted of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(2)), sentenced to 25 years’ imprisonment and fined $5,000, payable when she is on parole or mandatory supervised release. Defendant appeals, contending that (1) she is entitled to a new trial because her trial attorney had a conflict of interest in representing her while being paid by her parents, who she claims were bona fide murder suspects; and (2) the trial judge abused his discretion when imposing a $5,000 fine without considering her financial resources and ability to pay. Alternatively, defendant requests that she be given a credit of $5 a day toward the fine for each day she was incarcerated before sentencing. Because we determine that jurisdiction is lacking, we dismiss the appeal.

On September 20, 1991, the trial court, after a three-day bench trial, found defendant guilty of first-degree murder in the death of her three-week-old son. She filed a motion for a new trial on October 18, 1991. On October 22, the trial court denied her motion, sentenced her to 25 years’ imprisonment and ordered her to pay a $5,000 fine. Defendant then filed her notice of appeal that same day.

Thereafter, on November 20, 1991, defendant filed, in the trial court, a motion to reduce the sentence pursuant to section 5 — 8—1(c) of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1(c)). On November 21, the trial court ruled that the motion was timely filed and that it had jurisdiction, but it denied the motion. Defendant did not file a second notice of appeal after the motion to reduce the sentence was denied.

“A reviewing court has a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking.” (People v. Theis (1991), 220 Ill. App. 3d 24, 25.) We must decide whether a reviewing court in a criminal case is stripped of jurisdiction when the defendant files a timely motion to reduce sentence after filing the notice of appeal. For the reasons stated below, we answer that issue in the affirmative.

We seek guidance from three analogous cases. In People v. Whigam (1990), 202 Ill. App. 3d 252, after a final order, the defendant filed a motion to modify the order. Before the motion to modify was decided by the trial court, the defendant filed a notice of appeal. (Whigam, 202 Ill. App. 3d at 255.) Using Supreme Court Rule 303(a)(2) as a guide, the reviewing court held that under Supreme Court Rule 606(b), “a notice of appeal filed before the disposition of a motion directed to the final judgment in a criminal case is premature.” Whigam, 202 Ill. App. 3d at 257.

In People v. Curry (1988), 167 Ill. App. 3d 146, the defendant filed a notice of appeal on the same day, but after, he was sentenced for aggravated battery. Thereafter, the defendant retained private counsel and filed a motion for a new trial. (Curry, 167 Ill. App. 3d at 147.) Private counsel argued that under Supreme Court Rule 309 (134 Ill. 2d R. 309), the defendant was entitled to withdraw his first notice of appeal before the record on appeal was filed in the reviewing court, which was done implicitly when defendant filed the motion for a new trial. After the trial court heard and denied the defendant’s motion (Curry, 167 Ill. App. 3d at 149), defendant filed a second notice of appeal (Curry, 167 Ill. App. 3d at 147). On review, this court held that the trial court retained jurisdiction to rule on the motion for a new trial. Private counsel’s oral motion to dismiss the first notice of appeal was deemed the functional equivalent of filing a formal, written motion to dismiss the appeal under Rule 309. Curry, 167 Ill. App. 3d at 150.

In People v. Giles (1992), 230 Ill. App. 3d 730, the defendant filed, pro se, a notice of appeal after his attorney filed a motion to withdraw his guilty plea. (Giles, 230 Ill. App. 3d at 731.) The trial court would not rule on the motion to withdraw because a notice of appeal had been filed in the interim. (Giles, 230 Ill. App. 3d at 732.) This court held that the notice of appeal was “ineffectual and did not divest the trial court of its jurisdiction to consider and rule on the [motion].” The cause was remanded so the trial court could dispose of the pending motion. Giles, 230 Ill. App. 3d at 734.

Here, defendant’s motion to reduce the sentence was filed after the notice of appeal was filed, which factually distinguishes this situation from that in Whigam and Giles. However, we extend the rationale in Curry and hold that the filing of the post-sentencing motion was an implicit motion to dismiss pursuant to Rule 309 (134 Ill. 2d R. 309), a rule which has been incorporated as a criminal practice rule (see 134 Ill. 2d R. 612(a)). (See People v. Jackson (1992), 239 Ill. App. 3d 165, 168 (McCullough, J., dissenting).) We hold that the trial court had jurisdiction to rule on defendant’s motion to reduce the sentence. However, because defendant’s notice of appeal was premature and because a second notice of appeal was not filed after the order denying defendant’s post-sentencing motion, we do not have jurisdiction in this cause.

Appeal dismissed.

GEIGER and BOWMAN, JJ., concur.


author: PRESIDING JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN BEALS, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 90—0969
    Opinion filed November 13, 1992.

      Rita A. Fry, Public Defender, of Chicago (Greg Koster, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael P. Latz, and Matthew L. Moodhe, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Following a jury trial, defendant Brian Beals was convicted of first degree murder and aggravated battery and sentenced to concurrent terms of 80 years for the murder and five years for the aggravated battery. On appeal, defendant contends that: (1) he was denied effective assistance of counsel; (2) the trial court improperly considered that defendant’s conduct resulted in the taking of a life; (3) the trial court erroneously believed that defendant was eligible for a sentence of natural life imprisonment; and (4) the trial court abused its discretion when it imposed an 80-year extended-term sentence.

At trial, Valerie Campbell testified that on the afternoon of November 16, 1988, she was walking with her sons, Cordell, Antonio, and Demetrius, and her boyfriend, Derrick Lewis, in the vicinity of 60th Street and Normal when they encountered Steven Johnson and defendant arguing on the sidewalk. Valerie and her sons continued to walk down 60th Street past Steven Johnson and defendant, but Lewis stayed behind. Lewis told Valerie that he would meet her at her mother’s house. Lewis and Johnson then entered Johnson’s car and drove away. Valerie testified that she then observed defendant get into a car and drive down 60th Street toward Valerie and her sons. As Valerie and her sons were crossing 60th Street, Valerie observed defendant point a gun out of the driver’s side window of his car. Valerie and her sons started running. Valerie then heard a “pow” and observed her six-year-old son Demetrius look back at the car, say “ouch” and fall to the ground. She heard a second shot and felt a pinch in her left leg. Valerie picked up Demetrius and ran with the other boys toward a house on 60th Street. While they hid under the porch of the house, they observed defendant get out of his car and look around for a few minutes. Defendant then got back into his car and drove away. Valerie discovered that her son Demetrius had been shot in the neck and that she had been shot in the leg. Demetrius later died as a result of the gunshot wound.

Antonio Campbell testified that defendant was wearing a bright Adidas jacket while defendant argued with Johnson on the sidewalk. After Lewis and Johnson entered Johnson’s car and drove away from defendant, Antonio observed defendant run into a house. Antonio next observed defendant in his car shooting at Antonio, his brothers, and his mother.

Steven Johnson testified that on November 16, 1988, during the afternoon hours, he went to 451 West 60th Street in Chicago to talk to a woman known as “CC.” Johnson told CC that she should not allow defendant to live in the building because defendant sold drugs. During this conversation, defendant arrived and told Johnson that defendant could sell drugs wherever he wanted. While defendant and Johnson were arguing on the sidewalk in front of the building, Valerie, her sons, and Lewis walked past. Lewis told Johnson to stop .fighting and then Lewis and Johnson got into Johnson’s car and drove away. Johnson noticed that defendant was wearing a jacket during their argument.

Both Johnson and Derrick Lewis testified that they heard two shots. They proceeded to Valerie’s mother’s house, and on their way noticed Valerie on a porch. Valerie described the shooter to Lewis and Lewis led police to defendant’s house.

Officer Wilson testified that when he arrived at defendant’s house, he observed defendant running into the house. When Wilson entered the home, defendant’s friend Mark Terrell told the officer that defendant was not home. Officer Wilson searched the house and found defendant hiding under a sheet in the basement.

Detective Ptak testified that after defendant was taken into custody, he and Antonio and Cordell Campbell proceeded to Mark Terrell’s home. Detective Ptak recovered a jacket from Terrell’s automobile which Cordell indicated was the jacket worn by defendant during the shooting. One of Valerie’s sons later identified a car as the one driven by defendant during the shooting. Detective Ptak testified that the mobile crime lab performed a gunshot residue test on Lewis, Johnson and defendant in order to determine whether any of these individuals had fired a gun. The detective testified that these tests were inconclusive since they were conducted approximately three hours after the shooting. Detective Ptak also testified that he had no special training with regard to the gunshot residue test and he had not administered the test.

Norman Yancy testified on defendant’s behalf that when he looked out the window of his home at 443 West 60th Street on November 16, 1988, he saw two men across the street, one standing on the sidewalk, and the other standing in a vacant lot. Yancy testified that he observed one of the men shooting in a westerly direction, and a blue or black sports car travel eastbound on 60th Street, pull into the alley, and pick up the shooter. On cross-examination, Yancy stated that he never described the driver of the getaway car to defense counsel as 6 feet 5 inches tall, light-skinned, and 20 to 23 years old. Yancy admitted that he never offered police any information on the shooting. Yancy also denied that he told the police that the shooting occurred in the summer.

Sidney Cobb testified on defendant’s behalf that on the afternoon of the shooting, he was with defendant in the apartment on 60th Street. Cobb testified that defendant left the apartment, went downstairs, and talked to Johnson, who was at the front door. Cobb testified that defendant returned to the apartment, grabbed his jacket, and left the apartment. According to Cobb, defendant did not have a weapon. Cobb testified that he observed defendant drive away in his automobile and a man shooting at defendant’s car. Cobb testified he saw the man shoot in a westerly direction and then run into the alley. Cobb admitted that he never offered the police any information regarding the shooting.

Defendant testified on his own behalf that at the time of the shooting he was a fourth-year student at Southern Illinois University. Defendant testified that on November 16, 1988, he was in his. apartment at 541 West 60th Street with Cobb when he saw Johnson in front of the building. Defendant went downstairs and he and Johnson got into an argument. Defendant stated that during the argument, Valerie, her sons and Lewis approached. Defendant testified that Lewis remained behind while Valerie and her sons continued to walk down 60th Street. Defendant testified that Johnson drove off and defendant went up to his apartment and got his jacket and car keys. Defendant testified that while he walked toward his car, he observed two men running toward him, one with a gun. Defendant entered his car and drove away. Through his rearview mirror, he saw a man in the alley firing shots at his car. Defendant testified that he went to Mark Terrell’s house and then to his mother’s house. After defendant heard a knock on the door, he proceeded to the basement, but never covered himself with a sheet. Defendant testified that he thought the police were looking for him in regard to an unlawful use of a weapon (UUW) warrant. Defendant also testified that the UUW case had been dismissed. Defendant testified he was not wearing his Adidas jacket during his argument with Johnson.

At the close of defendant’s case, the parties stipulated that in an interview with defense counsel, Norman Yancy described the driver of the getaway car as 6 feet 5 inches tall, light-skinned, thin, and 20 to 30 years old. The parties also stipulated that Sidney Cobb, in an interview with defense counsel, had stated that when defendant first went downstairs to speak with Johnson, defendant wore his red and white Adidas jacket.

Defendant alleges that he was denied effective assistance of counsel because his trial counsel: (1) stipulated to testimony that impeached his own witnesses; (2) did not object to certain testimony; and (3) did not raise certain issues in defendant’s motion for a new trial. In order to succeed on a claim of ineffective assistance of counsel, defendant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

The record here reveals that defendant was indeed denied effective assistance of counsel where defense counsel stipulated to information counsel received from two defense witnesses. At trial, Sidney Cobb testified that after defendant’s argument with Johnson, defendant returned to his apartment to pick up his Adidas jacket. What is significant about this testimony is the fact the prosecutor argued that defendant was already wearing his jacket while he was arguing with Johnson, and that the reason defendant returned to his apartment after the argument was to pick up his gun. Despite the significance of this testimony, defense counsel stipulated that in an interview conducted several months after the incident of November 16, 1988, Sidney Cobb told defense counsel that defendant was wearing his red Adidas jacket while arguing with Johnson.

Also critical to this case was the testimony of Norman Yancy. Yancy testified at trial that on the afternoon of November 16, 1988, he looked out the window of his home at 443 West 60th Street and observed two men across the street, one man standing on the sidewalk, the other standing in a vacant lot. Yancy testified that he saw one of the men shoot in a westerly direction and then enter a blue or black sports car, and travel eastbound on 60th Street. On cross-examination, Yancy testified that he never described the driver of the getaway car to defense counsel as 6 feet 5 inches tall, light-skinned, and 20 to 30 years old. At the close of defendant’s case, the parties stipulated that Yancy spoke with defense counsel in April of 1989 and at that time described the driver of the get away car as 6 feet 5 inches tall, light-skinned, thin and 20 to 30 years old, a description that fit the defendant.

The State points out that a reviewing court will not extend its inquiry into areas involving the exercise of judgment, discretion, trial tactics or strategy. (People v. Ayala (1986), 142 Ill. App. 3d 93, 491 N.E.2d 154.) In some instances, the decision whether to enter into a stipulation is considered to be a matter of trial strategy. (See People v. Pierce (1991), 223 Ill. App. 3d 423) (stipulating that defendant voluntarily gave a tape-recorded confession was considered trial strategy where the statement would have been properly admitted without the stipulation and counsel used the" stipulation to minimize the harmful effects of the confession and enhance the credibility of the defense).) The stipulation entered into in the instant case, however, cannot be considered trial strategy since it destroyed the credibility of the defense. Trial counsel personally testified by way of stipulation against his own client. Counsel testified to critical information impeaching two key defense witnesses, Norman Yancy and Sidney Cobb, thereby destroying the credibility of the only witnesses to corroborate defendant’s version of events. What is particularly damaging about counsel’s stipulations is the fact that trial counsel offered his own professional standing and credibility against the defendant and the defense witnesses. Certainly, we cannot underestimate the impact counsel’s testimony must have had on the jury.

Not only was defense counsel’s performance seriously deficient and severely prejudicial to defendant’s case, but counsel violated the Illinois Rules of Professional Conduct by testifying against his own client. Rule 3.7(b) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 3.7(b)) provides that, “If a lawyer knows *** that [he] may be called as a witness other than on behalf of his own client, the lawyer may accept or continue the representation until the lawyer knows or reasonably should know that the lawyer’s testimony is or may be prejudicial to the client.” Clearly counsel should reasonably have known that his testimony would have a devastating impact on defendant’s case. Accordingly, this case must be remanded for a new trial.

Defendant also argues that his trial counsel was ineffective because he allowed the prosecutor to personally give testimony that impeached one of defendant’s witnesses. Norman Yancy testified at trial that the shooting of Demetrius and Valerie Campbell took place on November 16, 1988. On cross-examination, the prosecutor asked Norman, “Did you just tell me five minutes ago [out in the hallway] that you thought it happened in the summertime?” After Norman denied telling prosecutor Hennelly that the shooting happened in the summer, prosecutor Hennelly called Assistant State’s Attorney Elizabeth Rivera to the stand and she testified that she was present when Norman told prosecutor Hennelly that the shooting occurred in the summer. Defendant contends that he was denied effective assistance of counsel when defense counsel failed to object to the prosecutor serving as both an advocate and a witness. Defendant’s argument is misleading and ultimately meritless, however, since our review of the record reveals that Assistant State’s Attorney Rivera was not involved in the prosecution of defendant’s case.

Defendant next maintains that his trial counsel proved ineffective by failing to object to Officer Ptak’s testimony regarding gunshot residue. Officer Ptak testified that gunshot residue tests were “very inconclusive” when performed two or three hours after the incident. Defendant maintains that trial counsel should have objected to Officer Ptak’s testimony since a police officer is not qualified to testify as to the interpretation of gunshot residue. (See People v. Perry (1974), 19 Ill. App. 3d 254, 311 N.E.2d 341) (police officer was not qualified to testify concerning the amount of pressure necessary on the trigger to discharge a gun).) While trial counsel did not object to Officer Ptak’s testimony, counsel did bring out in cross-examination the fact that Officer Ptak had no special training in the area of gunpowder residue analysis. Furthermore, the parties stipulated that gun residue tests done on the defendant three hours after the incident were inconclusive. Accordingly, even if defendant should have objected to this testimony, we find that because trial counsel brought out in cross-examination Officer Ptak’s lack of expertise in gunpowder residue analysis, and the parties stipulated that the test was inconclusive, defendant was not prejudiced by trial counsel’s failure to object.

Defendant’s next contention of ineffective assistance of counsel concerns trial counsel’s failure to object to prior consistent statements bolstering the testimony of prosecution witnesses. A prior consistent statement may be admitted to rebut an inference that the testimony is a recent fabrication "or an inference that the witness has a motive to testify falsely/ provided that the prior consistent statement was made before the time of the alleged fabrication or before the motive to lie came into existence. People v. Deavers (1991), 220 Ill. App. 3d 1057, 580 N.E.2d 1367.

Valerie Campbell testified at trial that immediately after the shooting, she informed Lewis that she and her son had been shot by the “fat guy” and Lewis told her the “fat guy” was Brian Beals. In addition, Steven Johnson, Derrick Lewis, and Officer Michael Wilson testified that Valerie told them that she was shot by the “fat guy,” and that the “fat guy” was Brian Beals. These statements are not admissible as prior consistent statements in light of the fact that trial counsel never implied that the witnesses’ testimony was a recent fabrication or that the' witnesses had a motive to testify falsely. Because trial counsel did not object to these statements, and because the statements improperly bolstered the credibility of witnesses whose testimony was critical to this case, this is yet another reason to remand this case for a new trial.

In light of our decision to remand this matter for a new trial, we need not address defendant’s contention that he received ineffective assistance of counsel where trial counsel failed to raise certain matters in his motion for a new trial.

We instead turn to the issues that may arise on remand. Defendant raises several errors that the trial court allegedly made in sentencing defendant. Defendant first contends that the trial court improperly considered as a factor in aggravation that the defendant’s conduct resulted in the victim’s death. .While it is proper for the trial court to consider as an aggravating factor the force employed and the physical manner in which the victim’s death was brought about, it is improper for the trial court to consider the death of the victim as an aggravating factor where death is implicit in the offense. People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.

The trial court here stated:

“In aggravation the first guideline indicated in the statute is ‘Whether the conduct of the defendant caused or threatened serious harm.’ Well we all know that your conduct caused the ultimate harm. It caused the loss of human life ***.”

These comments are similar to those made by the trial court and found by this court to be improper in People v. Willis (1991), 210 Ill. App. 3d 379, 388, 569 N.E .2d 113 (wherein the trial court commented that, “As aggravation of course, I must consider what happened, the nature of the occurrence and the seriousness of the harm; and I’m sure there’s no disagreement that the harm in this case is the most serious type, the taking of a life”). Accordingly, if after his new trial defendant is found guilty, the trial court must not consider the victim’s death as an aggravating factor in defendant’s new sentencing hearing.

Due to our disposition of this case, we need not and do not consider defendant’s other allegations of error at the sentencing hearing.

Accordingly, for the reasons stated above, defendant’s conviction is reversed and this matter is remanded for a new trial.

Reversed and remanded.

MURRAY and GORDON, JJ., concur.