author: Mr. JUSTICE MEJDA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Anderson, Jr., Defendant-Appellant.
    (Nos. 58288, 58831 cons.;
    First District (3rd Division)
    June 20, 1974.

      James J. Doherty, Public Defender, of Chicago (Ian Levin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Following a bench trial, defendant, Harold Anderson, Jr., was found guilty of the offenses of rape, deviate sexual assault, and robbery. (Ill. Rev. Stat. 1969, ch. 38, pars. 11 — 1(a), 11 — 3, 18 — 1.) He was sentenced to the State penitentiary for each offense for a term of 5 to 12 years, to run concurrently. Defendant appeals. He contends that he was not proved guilty beyond a reasonable doubt of the offenses of rape, deviate sexual assault, and robbery. The State concedes the interdependence of the evidence to support all three charges. The facts follow.

Complainant was 18 years of age at the time of the incidents herein and testified at trial to the following. At approximately 5 P.M., on October 3, 1970, she was walking alone in a southerly direction on the east side of Wells Street in the Old Town area of Chicago, where she had come with the intention of buying a purse. It was daylight, and she had passed many pedestrians. She noticed that there was heavy automobile traffic moving in both directions along Wells Street. Near the intersection of Wells and Goethe Streets a young black man — later identified by her as the defendant — approached her from the rear. He put his right aim around her right shoulder, placed his left hand to her left side, and said, “Do as I say or I’m going to shoot. I have a gun.” She stated that she felt something hard against her left side. She tried to scream and defendant put his hand over her mouth, choking her, and forced her diagonally into the intersection, toward the southwest corner. At one point, while crossing the intersection, defendant tried to push her in front of a car, and near the center of Wells Street she tried unsuccessfully to squat down to attract attention. Defendant forced her onto the curb but she struggled back down into the street. He pulled her up onto the curb again and she grabbed a sign pole. Defendant pulled her loose and forced her toward the west entrance of the corner apartment building. When they reached the entrance he began conversing amicably with another black man standing outside the doorway. She did not understand their conversation and she said nothing. While they talked she held onto the entrance doorframe.

The defendant then pushed her through the doorway and she grabbed the stair banister. She pleaded with the defendant and asked him why he was doing this to her. He said he only wanted to talk with her but wanted to talk upstairs. He began forcing her up toward the second floor and she attempted to cry out, but he struck her on the face and head and choked her. On the second floor he took her into a washroom and removed her coat and laid it on the floor. They heard voices in the hall and defendant placed his hand over her mouth and said, “Be quiet. Don’t make a sound.” She put her coat on and they left the washroom. Again, in the hallway, she attempted to run down the stairs, but defendant caught her and hit her in the face, then forced her up the stairs and into a washroom on the thud floor.

Complainant further testified that in the washroom, defendant removed her coat and laid it on the floor, then pulled her pants down. After forcing her to lie down on her coat, defendant removed his pants and underwear and pulled her underwear half off. He removed a sanitary napkin she was wearing, threw it into the toilet, then penetrated her vagina with his penis. He could achieve only partial penetration and she told him she was a virgin. Defendant told her to sit on him on the toilet for the next few minutes. Then he demanded money and took $6 from her purse. Afterwards they both dressed, and defendant, holding her hands behind her back, forced her down the hallway to still another washroom on the third floor. On the way, they passed a black man and complainant grimaced and made a low groan, but did not cry out to him.

Inside the third washroom, defendant again removed her coat, undressed her, and forced her to lie down on her coat. He then undressed and forced her to perform an act of fellatio. Subsequently, defendant engaged in two more acts of intercourse with complainant. After the second of these acts she reached down and touched her vaginal area and discovered that she was bleeding; she then wiped her hand clean on the bathtub in the third washroom. After they had dressed, defendant took complainant’s watch and ordered her to stay in the washroom until he returned. She did not try to leave, but remained there for five or ten minutes until defendant returned. While alone in the washroom she heard voices in the hallway. Defendant returned with another black man and requested that she give him a “hand job.” She refused, and the three of them left the washroom. In the hallway defendant grabbed complainant, kissed her, and said, “Goodbye, nice knowing you.” She then ran down the stairs and out on Wells Street, where she saw two policemen standing within sight of the building she had left. She informed them of what had happened and was taken to Henrotin Hospital where she was given a medical examination. Thereafter, she gave the police a detailed description of defendant and of his clothing.

Complainant did not tell her parents she had been raped until the next day after the police had requested that she go to the station to view a lineup. In the lineup she identified defendant as the person who had attacked her.

On cross-examination complainant further testified. She had been in the Old Town area only once before, some 4 years prior to the occurrence in question. There were no other pedestrians within the block where she was first accosted by defendant. She did not yell for help during the struggle across the intersection because she was afraid of defendant’s gun. However, she admitted that she never saw a gun during the entire incident; that she could not tell the difference between a gun and a finger being pushed into her side; and that during the crossing and afterwards she saw the defendant no longer had anything in his hands. Complainant also admitted asking defendant whether he was from Texas, and if he was a Baptist. She told him she had a friend who knew a lot about blacks and that as a result she also knew something about them. She characterized this conversation as an attempt to get his mind off whatever he was planning. When asked why she made no outcry for help from the man at the apartment building entrance or the man they passed in the third-floor hallway, complainant said that both of the men were black, both seemed to know the defendant, and she believed that neither of them would help her. She stated she had been a virgin prior to the occurrence and that although she was wearing a sanitary napkin she was not then having her menstrual period. She also admitted that she suggested anal intercourse when defendant could not achieve full penetration in the second washroom; that she just wanted to get it done with and get out of there.

James Leyden, a patrolman of the Chicago Police Department, testified that he arrived at Henrotin Hospital on October 3, 1970, in response to a police radio report that a rape victim had been brought there. He interviewed the complainant and took down a detailed description of her assailant. He stated that her clothing was a little dirty, her face was red, and she had a bruise under one eye and a scratch on her neck. Leyden and his partner accompanied complainant back to the building where the alleged attacks occurred. They inspected the three washrooms which complainant said she and her assailant had occupied. Leyden made no mention of finding a sanitary napkin in the toilet in the second washroom, nor of observing any blood on the bathtub in the third washroom. He stated that he could not recall whether any inquiries were made of residents of the building to determine what they might have seen or heard. He further stated that he arrested defendant later that same evening in Old Town, and that defendant and his clothing fit the complainant’s description perfectly. He stated that while checking defendant’s clothing he noticed a reddish stain on the fly of his undershorts.

Judy Murakami, a licensed practical nurse, testified that she was assigned to the emergency room of Henrotin Hospital on October 3, 1970. She stated that a report indicated that complainant had said her last previous menstrual period was in the beginning of September 1970. The report also indicated that complainant had scratch marks on the left side of her neck.

Dr. William Whiteside testified that he was the physician who conducted the emergency-room examination of complainant at Henrotin Hospital; that the report indicated that abrasions and contusions were found on complainant’s left cheek and forehead, and an abrasion was found on the left side of her neck. No evidence of trauma or injury to the vaginal area was found. Vaginal bleeding was evident, but since there was an absence of vaginal injury, he stated this would lead to the assumption that the bleeding was the result of normal menstruation or some other form of internal discharge. He further testified that he could not give an opinion as to whether complainant had been forcibly raped, but that at the time of her examination she was not in shock and her general condition was listed in the report as good.

A portion of defendant’s undershorts and the pap smears taken at the time of complainant’s emergency room examination were introduced into evidence. All were positive for the presence of spermatozoa.

Testifying in his own behalf, defendant stated that he first met complainant in the Old Town area in the summer of 1970. On October 3, 1970, he was on Wells Street and heard complainant call out to him by his nickname, “Hound Tooth.” He crossed the street to where she was standing and she asked if he knew where she could get some marijuana, and he said he did not. He described the complainant as a “hippie” and said she appeared to be “high.” He went with her to a snack shop where she bought his supper, and they visited a suede store on Wells Street between Scott and Goethe Streets. At the corner of Wells and Goethe Streets, complainant told him she knew some hippie friends who used to live in the corner building. She said she wanted to have sexual intercourse with him before she came off her “high” and asked if he knew where they could go. When he said he did not, she said there were lots of empty apartments in the building where her friends had lived, and they agreed to go there. Defendant stated that at the time it was daylight and there were numerous pedestrians and automobiles moving along Wells Street.

He testified that they entered a washroom next to an apartment where she said her friends had lived. She took off her coat and suggested that they lie on it because it was vinyl and dirt could easily be removed from it. They heard voices outside and complainant told defendant they should go somewhere more private, and they went to another washroom on the third floor. There complainant again took off her coat and laid it on the floor. At her request defendant unzipped her pants because the zipper was in the back. He then lay beside her, wearing his undershorts. He saw that she was wearing a sanitary napkin, and when he removed it he discovered that she was having her period. Because of this he declined her suggestion that they engage in intercourse. She then suggested anal intercourse, but he again declined and asked her to perform fellatio. She said although she had not had much experience at that, she would try it. Defendant testified that during this act the complainant began to bite his erect penis and when she ignored his pleas to stop, he pushed her head back with his right hand on which he was wearing a ring. Complainant appeared shocked and began to blush. They dressed and left the washroom. In the hallway they passed another black man. When they reached the building entrance complainant asked if he was going to find her some marijuana. He said he did not have enough money and she gave him $5. They were then joined by another black man and defendant told her to leave, but she said she would wait. He told her he would return to the building in 10 minutes with the marijuana, but he never returned. He was arrested in the Old Town area later that evening while wearing the same clothes he had worn when he was with complainant.

Defendant stated that while he was with her they had talked about various subjects; she asked if he was from Texas, whether he was a Baptist or a Catholic; and they discussed the fact that she had attended Catholic schools. Defendant denied performing any sexual acts against complainant’s will and denied using any force during the entire incident except to terminate the oral copulation. He also denied robbing complainant.

Defendant’s contention that he was not proved guilty of rape beyond a reasonable doubt is predicated on his assertion that the testimony of complainant is implausible and that all of the evidence presented by the State is insufficient to prove that any of the alleged acts of intercourse were performed by force and against the will of complainant. It is fundamental that in order to prove the charge of forcible rape there must be sufficient evidence to demonstrate that the act was committed by force and against the will of the female. (People v. Taylor (1971), 48 Ill.2d 91, 268 N.E.2d 865; People v. DeFrates (1965), 33 Ill.2d 190, 210 N.E.2d 467.) In Taylor, at page 98, the court mentioned this requirement and its application:

“[T]he degree of force exerted by the defendant and the amount of resistance on the part of the complaining witness are matters that depend upon the facts of the particular case; that resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female as where the assailant is armed with a deady weapon, and that proof of physical force is unnecessary if the prosecuting witness was paralyzed by fear or overcome by superior strength of her attacker; that it is, however, fundamental that in order to prove the charge of forcible rape there must be evidence to show that the act was committed by force and against the will of the female, and if she has the use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will.”

Reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases. Moreover, in such cases it is the duty of a reviewing court not only to carefully review the evidence, but to reverse the judgment if that evidence does not remove all reasonable doubt and create an abiding conviction that the defendant is guilty of the crime alleged. (People v. Faulisi (1962), 25 Ill.2d 457, 185 N.E.2d 211; People v. Barfield (1969), 113 Ill.App.2d 390, 251 N.E.2d 923.) The ultimate issue presented in the instant case is not that of credibility, but whether the evidence introduced by the State, even if believed, is sufficient to create an abiding conviction that the defendant is guilty of intercourse with the complainant by force and against her will.

The uncorroborated testimony of a complaining witness is sufficient in itself to sustain a conviction for rape if that testimony is clear and convincing. (People v. Brown (1963), 29 Ill.2d 375, 194 N.E.2d 326; People v. Mack (1962), 25 Ill.2d 416, 185 N.E.2d 154.) If clear and convincing testimony is deemed to be lacking, corroboration is necessary to sustain a conviction. People v. Kepler (1966), 76 Ill.App.2d 135, 221 N.E.2d 801.

We find the testimony of the complainant in the instant case somewhat less than clear and convincing. Similar testimony was held to be insufficient in People v. Taylor, supra. There, the complaining witness had testified that the defendant had managed in the midst of a crowded parking lot to coerce her into entering his car by threatening her with being shot if she did not come with him. Without actually seeing a gun and without making an outcry for help she entered his automobile and they drove off. She further testified that while driving they discussed various topics and that defendant stopped at several stop signs. During this time she made no outcry for assistance and made no attempt to escape. After allegedly forcing her to engage in acts of intercourse and fellatio, the defendant dropped her off in an alley. She admittedly kissed him goodbye, and promptly reported that she had been raped. In reversing the judgment of guilty on the charge of rape the court stated that the evidence did not create an abiding conviction that the act of intercourse complained of was performed by force and against the will of the complaining witness.

In the case before us, complainant testified that after she was first accosted by defendant he forced her across the intersection of Wells and Goethe Streets while holding his hand over her mouth to keep her from crying out. On cross-examination she testified that she made no outcry at that time because she was afraid of his gun, and not because he held his hand over her mouth. It is doubtful that an attacker could brazenly accost a victim in broad daylight, then successfully spirit that victim across an admittedly busy street in a forcible manner without attracting the attention or intervention of anyone. It is also incongruous that complainant would refrain from making an outcry because of fear of defendant’s gun, but would not refrain from engaging in a veritable wrestling match such as she described as occurring between herself and defendant before they entered the apartment building. Further, she stated that during the time she was being forced across the intersection she saw that defendant no longer had anything in his hands but, inexplicably, she still did not cry out for assistance. Complainant also admitted entering into a conversation with defendant concerning his background and her knowledge of black people.

Complainant testified that she did not inform either the man at the entrance of the building or the man they passed in the third-floor hallway that she was being held against her will. Her stated justification for not doing so was that both men were black and appeared to know the defendant, and she therefore did not believe they would help her. However, she testified that she did not understand the conversation between defendant and the man at the entrance, and there is no evidence of record that the man she and defendant passed in the third-floor hallway was known to defendant. In each case, complainant had sufficient control over her faculties and physical powers to request assistance from those individuals, yet did not do so. Justification for failing to make an outcry to a potential intervenor because that person was of the same race as the attacker was rejected in People v. Qualls (1961), 21 Ill.2d 252, 171 N.E.2d 612. Complainant also testified that after defendant left her alone in the third-floor washroom for 5 or 10 minutes she neither attempted to escape nor made an outcry for help. The failure to exercise an opportunity to escape or summon assistance was a significant factor in the reversal of judgments of guilty in both Taylor and Qualls, supra.

It was asserted by complainant that at the time of the incident she was a virgin and that she was not then having her menstrual period although she was wearing a sanitary napkin. She also stated that defendant could not at first achieve full penetration into her vagina but that subsequently he did succeed. However, Dr. Whiteside, the physician who made the emergency examination of complainant, testified that his report indicated an absence of vaginal trauma or injury and that the bleeding which was observed was probably attributable to normal menstruation or some other form of internal discharge. Finally, it was admitted by complainant that on her own initiative she suggested to defendant that they engage in anal intercourse.

The major inconsistencies which arise from complainant’s testimony concerning the force used by defendant and the manifestations of her own lack of consent to the alleged acts of intercourse require that adequate corroboration appear of record. We do not find in the record sufficient independent evidence in corroboration to afford a basis for sustaining the judgment of guilty on the charge of rape. The spermatozoa found on defendant’s undershorts and that contained in pap smears taken from complainant at her emergency room examination are indicative only of recent intercourse and not rape. (People v. Kepler, supra.) Although the presence of sperm is a circumstance which can be considered in corroboration of a complaining witness’ testimony, it is not conclusive in itself that the act was performed by force and against the will of the female. People v. Nemke (1970), 46 Ill.2d 49, 263 N.E.2d 97; People v. Reese (1973), 14 Ill.App.3d 1049; 303 N.E.2d 814.

There is independent evidence that at the time of tire examination complainant had superficial marks on her face and neck. In another case, the presence of such marks along with the spermatozoa found on defendant’s undershorts and in complainant’s pap smears might suffice as corroboration. In the instant case, the presence of these marks does not constitute persuasive corroboration, in view of another factor established at that same emergency room examination. Despite her assertion that she had been a virgin and that defendant had experienced difficulty in achieving full penetration into her vagina, the report completed by Dr. Whiteside indicates an absence of vaginal trauma or injury. The State cites People v. Dunigan (1974), 17 Ill.App.3d 498, 308 N.E.2d 338 (abstract opinion), as a case where a rape conviction was sustained even though there was no evidence of vaginal injury. The Dunigan case is distinguishable. There, the complaining witness was a married woman with five chüdren. In the case before us, the complainant’s testimony was that she was a virgin at the time and that difficulty was had in achieving full penetration.

Whfie complainant did appear at Henrotin Hospital soon after the occurrence, the two policemen to whom she first made complaint, according to her testimony, were not identified and did not testify. Officer Leyden testified that he met complainant after her emergency examination and that he and his partner returned to the apartment butiding with her and inspected each of the three washrooms she said she and defendant had used. His testimony is devoid of any reference to finding complainant’s sanitary napldn in the second washroom where defendant had allegedly thrown it into the toilet bowl, or to observing any blood on the bathtub in the third washroom where complainant said she had wiped her bloodied hand clean. Moreover, Leyden could not recall whether any inquiries were made of the building residents to determine what they might have seen or heard in connection with an alleged rape having occurred therein. Complainant did not inform her parents that she had been raped until the foHowing day when requested by the police to view a lineup.

After the careful scrutiny of tire State’s evidence which is required of a reviewing court, we hold that evidence insufficient to remove all reasonable doubt and to create an abiding conviction that, the alleged acts of intercourse engaged in by complainant and defendant were performed by force and against her will. The judgment of the trial court as it relates to die finding of guilty on the charge of rape must therefore be reversed.

Defendant was also convicted herein of the offense of deviate assault which is defined:

“(a) Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault.” (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 3(a).)

The elements of this offense are the same as those of rape except that penetration is required for rape. Force and lack of consent, as in rape, are likewise the gist of this offense. Therefore, we likewise conclude that defendant was not proved guilty of a sexual deviate assault beyond a reasonable doubt, and reverse the conviction. See People v. Bruno (1969), 110 Ill.App.2d 219, 231, 249 N.E.2d 252.

Defendant was also convicted of the offense of robbery. The State in its brief filed herein admits that whether or not the property of complainant was taken by force, or the imminent use of force, is dependent upon the same evidence that would establish that the acts of intercourse and deviate sexual conduct were committed by force. In view of our reversal of the other convictions, we conclude that defendant was not proved guilty of robbery, and accordingly reverse.

For the reasons stated in this opinion, the conviction of rape, deviate sexual assault, and robbery, and the judgments of the circuit court of Cook County therein are reversed.

Reversed.

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


source: Caselaw Access Project

author: Mr. JUSTICE LEIGHTON

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Linda Coles, Defendant-Appellant.
    (No. 58742;
    First District (2nd Division)
    June 18, 1974.

      James J. Doherty, Public Defender, of Chicago (John T. Moran, Jr., Assistant Public Defender, of counsel), for appellant.
    Remard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Jerald A. Kessler, and Patricia Unsinn, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This is an appeal from an order that revoked defendant’s probation. Three issues are presented for our review. 1. Whether the revocation violated defendant’s constitutional rights because a material witness-informer, after demand by the defense, was not produced in court by the prosecution. 2. Whether the evidence proved that defendant violated the terms of her probation. 3. Whether the trial court applied the correct standards when it sentenced defendant after revocation of the probation.

In 1971, defendant was indicted for murder. On January 31, 1972, she pled guilty to the lesser included offense of voluntary manslaughter and was placed on 5 years’ probation, the first 4 months as a workreleasee in the Chicago House of Correction. Although she was required to begin the probation term on February 10, 1972, she did not do so; therefore, a warrant was issued for her arrest and she was taken into custody. On March 16, 1972, she filed a petition asking the court to set a bond for her release. A hearing followed, with the result that the petition was denied but the terms of the probation were altered to provide that defendant was to serve the first 4 months of the 5 years as an inmate in the House of Correction rather than as a participant in the work-release program. With this change, the probation order went into effect. One of its injunctions was that the “defendant shall not, during the term of said probation, violate any criminal law of the State of Illinois, or any ordinance of any municipality of said State * *

However, on August 25, 1972, the probation department requested the trial court to issue a mle requiring defendant to show cause why her probation should not be terminated because it had learned that on March 8, 1972 (apparently while she was at liberty when she should have been serving her probation), defendant sold heroin to a woman informer whose activities were directed by two Chicago police officers. The mle issued; and after intermittant continuances until November 3, 1972, the State presented its claim that defendant had violated the terms of her probation.

It called four witnesses: a probation officer, the two policemen and a police department chemist. From this evidence, the State showed that on March 8, 1972, sometime during the early evening, Chicago policemen Franklin Smith and Theodore Daniels talked with an informer in the eleventh district police station. Her name was Mary Ann Robinson; her address, later given at defendant’s request, was 321 South Central Park, Chicago. Then, out of their presence, a policewoman, Lavinia Cox, strip-searched the informer. She was known to the officers as one who used narcotics. After the search, Robinson was given a marked, recorded $20 bill; and in the company of the two officers, went to the Hoover Hotel, 3200 West Jackson Boulevard, Chicago, arriving there at approximately 11 P.M. The hotel had a lobby entrance consisting of double glass doors. The lobby itself was well lit; and approximately 25 feet from the glass doors, was a desk. The woman informer entered the lobby, Smith remained in the vestibule and Daniels remained outside. Smith, from where he was, saw the informer use a telephone at the desk; and a short time later, defendant, who was known to Smith as Mary Hope, came down the stairs. For about 2 minutes, Smith looked on while the informer and defendant earned on a conversation. Then, Smith saw the informer hand a bill to defendant. The two women then walked to one side, out of Smith’s line of vision. About 3 minutes later, the informer returned to the desk and was joined there by defendant. Smith saw defendant hand the informer a tinfoil wrapped package which the latter took and gave Smith a signal that the sale had been made. Thereupon, the informer left the lobby and gave Smith the package. Smith and Daniels entered the hotel, arrested defendant, searched her and recovered the pre-recorded, marked $20 bill. In addition, defendant had on her person keys to room 410 in the hotel. She asked the officers if they would go with her to the room to get a coat. They did; and when they entered with defendant, the officers observed several hypodermic needles and syringes on top of a dresser. The package the informer gave Smith was later chemically analyzed and its contents found to be heroin.

Defendant testified in her own behalf. She admitted being in the Hoover Hotel the evening of March 8 at the time described by the two police officers. She admitted knowing the woman informer either as Mary Jane or Jane Robertson and having seen and talked with her in the Hoover Hotel on the evening in question. She admitted receiving the marked $20 bill from the informer. However, defendant told the court that 2 or 3 weeks before, she had loaned the woman $43. She claimed that the informer gave her the marked money in part payment of the loan.

The State did not call the woman informer. In answer to defendant’s demand that she be produced, Officer Smith gave her address but told the court his department did not know her whereabouts because she had forfeited a bond and a warrant had been issued for her arrest.

After hearing the evidence and arguments of counsel in summation, the trial court found that defendant had violated the terms of her probation because, contrary to its sanctions, she committed the crime of selling heroin. He remanded her to custody, ordered a pre-sentence investigation and scheduled a hearing in aggravation and mitigation. The hearing was held; and at its conclusion, the court repeated its finding that defendant had violated the trust placed in her when she was given probation. As to the punishment, it announced that “[t]he probation violation sentence is not less than seven nor more than twenty years in the Illinois State Penitentiary. She is remanded to the custody of the bailiff to serve her sentence.”

It is obvious that this was a case where disclosure of the informer’s identity was essential to a fair determination of the cause and where, accordingly, the State’s privilege not to disclose the informer’s identity had to give way. (Roviaro v. United States (1957), 353 U.S. 53, 60-61, 1 L. Ed.2d 639, 77 S. Ct. 623.) The informer was a participant in the alleged crime; she was a material witness; therefore, the State had to disclose her identity. People v. Williams, 38 Ill.2d 150, 153, 230 N.E.2d 214; People v. Castro, 10 Ill.App.3d 1078, 295 N.E.2d 538; compare Eleazer v. Superior Court (1970), 83 Cal. Rptr. 586, 464 P. 2d 42.

The record shows that this was done. Through the testimony of two policemen, the State disclosed who the informer was, gave her name, her last known address and the information it had concerning her whereabouts. Prior to the hearing when this disclosure was made, defendant did not request a list of witnesses or move for discovery of the evidence which the State was going to present in support of its claim that she had violated her probation. Defendant knew the informer. After the State gave its information concerning the informer’s whereabouts, defendant did not request an opportunity to investigate the veracity of what had been said by the policeman concerning the matter. Defendant was told of the informer’s bond forfeiture, indicating that there were court records which could be checked. Consequently, this is not a case where the State refused to disclose the identity of its informer. (Compare People v. McShann (1958), 50 Cal. 2d 802, 330 P. 2d 33; see Annot, 76 A.L.R. 2d 262; 8 Wigmore, Evidence § 2374 (f) (McNaughton rev. 1961).) Nor is this a case where, unexplainably, the State failed to call an informer witness. (See People v. Morrison, 23 Ill.2d 201, 177 N.E.2d 833.) Therefore, defendant’s constitutional rights were not violated when her probation was revoked without the prosecution having produced in court the material witness-informer.

Before it decided on the revocation, the trial court heard the two policemen involved and the chemist who analyzed the package one officer received from the informer on the occasion he described to the trial judge. It contained heroin. The evidence showed that defendant was living in a hotel under an assumed name by which she was known to the police. She testified and confirmed her contact with the woman informer. She admitted receiving the marked money; she did not deny giving the informer the package. She claimed, however, that the money given her by the informer was payment on a debt. It was for the trial court to resolve the conflict between the State’s evidence and defendant’s testimony. (See People v. Gabriel, 132 Ill.App.2d 1089, 270 N.E.2d 869.) In our judgment, there was sufficient evidence from which the court could find that defendant, after being placed on probation for killing of a woman, and having been enjoined from violating any criminal law or a municipal ordinance, continued in a course of criminal behavior. (See People v. Morales, 2 Ill.App.3d 358, 276 N.E.2d 391.) This evidence, by the quantity required by law, proved that defendant violated her probation. People v. Crowell, 53 Ill.2d 447, 292 N.E.2d 721; People v. Knighten, 5 Ill.App.3d 640, 283 N.E.2d 738.

This being so, the trial court could * * alter the conditions of probation or imprison the probationer for a term not to exceed the maximum penalty for the offense of which the probationer was convicted.” (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 3(d).) The record, however, shows that in deciding the sentence, the trial judge said, “I have dealt with Miss Coles very leniently in the initial case, and I feel that she has violated the trust which on behalf of the community reposed in her [sic]. I feel that I have a very heavy responsibility to the community. Miss Coles has seen fit to violate that trust. She must now pay the penalty. The probation violation sentence is not less than 7 nor no more than 20 years in the Illinois State Penitentiary.”

In People v. Livingston, 117 Ill.App.2d 189, 192, 254 N.E.2d 64, we said that “[f]ew tasks are more difficult for a trial judge than the sentencing of a probationer. The decision to sentence always involves the finding that the probationer violated the trust placed in him when he was given the benefits of probation. The breach of trust, however, cannot overshadow the statutory mandate that the probationer be sentenced for the crime of which he was convicted, not for the acts of delinquency which may or may not justify revocation of probation.” Of course, a court in imposing sentence must consider not only the crime, but by statutory command must take cognizance of all factors relevant to the rehabilitation potential of the defendant as an individual. (People v. Hardy, 8 Ill.App.3d 854, 291 N.E.2d 242.) Therefore, after revoking defendant’s probation, and in appraising her rehabilitation potential, the trial court could consider what defendant did while she had the benefits of that alternative to imprisonment. People v. Clyne, 7 Ill.App.3d 121, 287 N.E.2d 72; People v. Ford, 4 Ill.App.3d 291, 280 N.E.2d 728.

We think, however, the record should show that this is what was done. When defendant’s probation was revoked, the law provided that “[a] person convicted of voluntary manslaughter shall be imprisoned in the penitentiary from one to 20 years.” (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 2(c).) The sentence imposed was 7 to 20 years, a severe one when considered against the fact that at her conviction, she was found fit for probation. The only justification for the sentence in this case is the finding that defendant violated the trust placed in her when she was given probation. Without consideration of her probation conduct as a factor in her rehabilitation potential, violation of her probation was not an appropriate reason for the sentence imposed. (See People v. McCall, 7 Ill.App.3d 135, 287 N.E.2d 45; People v. Probert, 3 Ill.App.3d 758, 279 N.E.2d 181.) Therefore, we are compelled to conclude that the trial court did not apply the proper standard when it sentenced defendant after revocation of her probation. The sentence will have to be modified.

The State concedes this much. It acknowledges that this case has not reached final adjudication and that the Unified Code of Corrections applies. (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008 — 2—4.) Under that code, voluntary manslaughter is a Class 2 felony for which the minimum sentence cannot exceed one-third of the maximum. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8—1.) In this case, then, the minimum cannot exceed 6% years; it is 7 years. The State suggests we exercise our power under Supreme Court Rule 615 and modify the sentence. See Supreme Court Rule 615(b)(4) (Ill. Rev. Stat. 1973, ch. 110A, par. 615(b)(4)).

However, we think that it is best we affirm the order revoking defendant’s probation and remand the cause with directions that the trial court resentence defendant, taking into account all of the factors in her case, including her conduct during probation as it reflects on her rehabilitation potential and the later nolle prosequi of the charge that she sold heroin to the woman informer.

Affirmed and remanded with directions.

HAYES, P. J., and STAMOS, J., concur.

       In addition, a pistol was found in the room. It appears, however, that part of this evidence was suppressed by the court that was hearing the narcotics charge against defendant. For this reason, the trial judge sustained objections to questions concerning what was found in the room. Therefore, we will decide this appeal as if references to the suppressed evidence were not in the record.

       After defendant was sentenced, the State moved for a nolle prosequi of this charge. The motion was sustained; therefore, defendant’s guilt of this crime was never proven.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gustavo Colon, Defendant-Appellant.
    (No. 58688;
    First District (3rd Division)
    June 20, 1974.

      James J. Doherty, Public Defender, of Chicago (Harold A. Cowen, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Thomas Mauet, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Glenn Burr, a black youth, was shot and killed as he, his sister Theresa, his cousin Nathaniel Burr, and two friends, Verlinda Hamilton and Phyllis Taylor, were walking on a Chicago street. The young people had left the Burr home on north Leavitt Street on June 27, 1971, about 9:55 P.M. At the corner of Leavitt and Potomac, the defendant, Gustavo Colon, who was armed with a gun, and his friend Florentine Menendez, approached the group. Menendez pointed at Glenn Burr and said, “Shoot that black mother fucker.” Glenn attempted to flee, but Colon shot him and discharged three more bullets into him after he fell to the ground. Colon then went up to Verlinda Hamilton, put the gun to her head, smiled, and pulled the trigger, but the gun did not fire.

Glenn was pronounced dead on arrival at St. Mary’s Hospital. His companions gathered at the hospital, but only one of them described the murderer. The others provided descriptions within a few days and all four positively identified Colon as the killer.

A jury found Colon guilty of murder and he was sentenced to serve a term of 30 to 60 years in prison. He seeks reversal and remandment of his conviction based upon these asserted deprivations of his right to a fair trial: (1) admission into evidence of prejudicial hearsay testimony; (2) foreclosure of defense attempts to impeach a key State witness; (3) consideration of incomptent evidence in aggravation, which resulted in the imposition of an excessively harsh sentence, and (4) ineffective representation by his counsel.

At the trial three of the eyewitnesses explained why they did not identify the slayer or give his description to the police at the hospital. Theresa Burr stated that she was hysterical on the night of the murder and could talk to no one. Verlinda Hamilton had seen Colon 11 or 12 times before the slaying and recognized him, but she said she had assumed that Nathaniel Burr would provide the information to the police. Nathaniel Burr said he spoke to police at the hospital, but was not asked for a description at that time and gave none. He returned home and told his mother that he knew who had done the shooting but feared reprisals if he talked. The police came to his home within a few hours and, persuaded that he had nothing to fear, he told them who had done the shooting and then selected pictures of Colon and Menendez from among at least 50 photographs. Phyllis Taylor, who had given a description to the police at the hospital, said that a few days later they brought a number of pictures for her to view; she selected one of Colon and identified him as the gunman.

Investigator James Acosta of the Chicago Police Department corroborated the testimony of the four occurrence witnesses relating to the time and circumstances of their identifications. He said that Nathaniel Burr, when reached at his home, had named Colon and Menendez, known to him by their nicknames “Hercules” and “Brillo,” members of the Latin Kings gang, as the persons who had accosted his cousin; he described them and pointed out their photographs. Officer Robert Kaiser testified that he knew Colon and Menendez, and that on the day of the murder he had seen both men in the area of the shooting. He participated in the arrest of Colon, which took place on August 20,1971. It was stipulated that Menendez had died before the trial.

Colon testified that he spent June 27 at his mother’s home, working on a neighbor’s automobile and then joined in a celebration in honor of his brother, Jose, who had just returned from the Army. Several persons testified in support of his alibi. The neighbor, Angel Jimenez, said Colon worked on his auto’s transmission unitl 9:45 P.M. Jimenez said he went to the party and that he saw Jose Colon and 20 other persons there. Barbara McLemore, a friend of the defendant, said that he was not out of her sight on June 27 from 5 P.M. until she left the party at 11 P.M. She believed he stopped working on the car at 8:30. Daniel McLemore did not attend the party but drove to the Colon home to pick up Barbara, his wife. He believed that the party was held on Saturday, June 26, not on Sunday the 27th. Carmen Falcon, Colons sister-in-law, testified that she attended the party on June 27. She recalled that only five or six persons were present.

Jose Colon testified for the State in rebuttal. His testimony indicated that he was not at his mother’s home in Chicago on June 27, 1971, or on any other day in the month of June. He stated that during the summer of 1971 he was absent without leave from his assigned Army post at Fort Dix, New Jersey. He did not remember the specific day he left the fort, but he said that on the day he departed he went to his father’s house in Brooklyn, New York, where he stayed for 2 or 2Vz months. Although he said that he worked on an automobile with his brother the day of his return to Chicago, he further stated that he arrived at his mother’s home only one day before his brother’s arrest.

Sergeant Lawrence Struck, a military policeman stationed at Fort Sheridan, Illinois, substantiated Jose’s testimony. Struck’s testimony, unobjected to by the defense, was that a personal check of the records of the Absentee and Deserter Information Center of Fort Benjamin Harrison, Indiana, revealed that Jose Colon was reported absent without leave from Fort Dix on May 28, 1971, and was classified as a deserter 1 month after that date. The defendant contends that it was plain error, of which this court should take notice, for the trial court to admit into evidence Struck’s testimony. He asserts that the testimony was hearsay, that it violated the best evidence rule and that it “completely destroyed” his alibi.

The testimony complained of was hearsay and we do not doubt that it would have been ruled inadmissible if a timely objection had been made to it. If, as the defendant argues, this testimony utterly eviscerated his defense, then the doctrine of plain error might dictate a reversal and retrial, notwithstanding the failure of his counsel to object when the testimony was submitted. (Ill. Rev. Stat. 1971, ch. 110A, par. 615; see People v. Wright (1965), 65 Ill.App.2d 23, 212 N.E.2d 126.) If, on the other hand, in light of the entire record it is apparent that the testimony was not prejudicial, any error committed by its reception would not warrant reversal. (People v. Pelkola (1960), 19 Ill.2d 156, 166 N.E.2d 54.) Prejudicial error is most likely when the record shows a close factual situation. People v. O’Connell (1964), 30 Ill.2d 603, 198 N.E.2d 834.

We cannot accept the defendant’s estimate of the importance of this testimony. First, despite the number of witnesses who supported it, the story about the celebration to honor the return of a fugitive seemed contrived. The testimony contained contradictions concerning the date of the party, the number of persons present and the hour at which the defendant ceased working on Jimenez’ car. More important, the alibi was destroyed by the testimony of the defendant’s own brother. The statements made by Struck were only cumulative and corroborative of Jose Colon’s earlier testimony to the effect that he had not been in Chicago on the date of the gathering supposedly held to honor him. While he did not definitely state the date he came to Chicago, he did say that he went from Fort Dix to Brooklyn and stayed there for at least 2 months, and that he was there on July 4, 7 days after the defendant and his witnesses testified they celebrated his return home. He also stated that he did not see his mother and brother until the day before Gustavo’s arrest, which was fixed by other witnesses at a date late in August 1971. Thus, the purported guest of honor at the party intended to establish the defendant’s alibi had impeached the alibi witnesses before Struck uttered a word of testimony. Hearsay testimony has been held to be harmless where it merely repeats that which has already been proven by competent testimony. (People v. Thompson (1970), 128 Ill.App.2d 420, 263 N.E.2d 124; People v. Smith (1969), 105 Ill.App.2d 8, 245 N.E.2d 23.) Additionally, the prosecution’s affirmative proof of guilt must be considered. Four witnesses, at least two of whom knew tire defendant, by sight or nickname, viewed the shooting at close range, and were positive in their identification of him as the murderer.

Notwithstanding this overpowering evidence of guilt, the argument is made that an appellate court should not second guess the jury and declare an error’s effect to be harmless. This argument receives some support in the following statement from People v. Rogers (1932), 348 Ill. 322, 326, 180 N.E. 856:

“* * * The court cannot speculate with the rights of a defendant, and say that the jury probably acted upon the competent evidence, only.”

But the rule is qualified; it only obtains “Where the evidence is in conflict and there is incompetent and prejudicial testimony in the record * * * ” The record contains sufficient competent evidence to establish Colon’s guilt beyond a reasonable doubt. Struck’s testimony, although damaging to him, was not prejudicially so and its admission was not reversible error.

The next contention is that the court erred in cutting short the attempts by the defendant’s counsel to impeach Nathaniel Burr through proof of prior inconsistent statements. Two rulings are criticized. In the first, the trial court sustained the State’s objection to defense counsel’s attempt to question Burr concerning his testimony at the preliminary hearing. The exchange went as follows:

“DEFENSE COUNSEL: Directing your attention again to February 10, 1972, I will ask you if you remember this question and answer.
'Q. What description did you give of Gustavo Colon or the man you know as Hercules?
A. I gave him, kind of, you know stocky, chubby.
Q. Referring to myself, do I look chubby?
A. No.’
DEFENSE COUNSEL: Do you remember that answer?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained.”

The defendant contends that he was entitled to an answer whether Burr had given such a reply at the preliminary hearing, because, armed with a denial, he might have called the court reporter to prove that the answer was indeed made. This, he assumes would have constituted an actual impeachment, since Burr in his earlier trial testimony had denied giving any description of Gustavo Colon to the police at the hospital.

A witness cannot be impeached on an immaterial matter. (People v. Boulahanis (1946), 394 Ill. 255, 68 N.E.2d 467.) Two requirements must be satisfied in order to lay a proper foundation for impeachment of trial testimony. The witness must first be questioned as to the time, place and persons involved in the alleged impeaching conversation; he must then be asked whether he made a certain contrary statement at that time. (People v. Rainford (1965), 58 Ill.App.2d 312, 208 N.E.2d 314.) The State properly argues that since Burr was never asked at the trial for a description of the defendant it was appropriate for the trial judge to sustain the objection to the use of a previous description, for reasons of immateriality and lack of a proper foundation.

The defense attempts to finesse the question of relevance by claiming that the line of questioning was intended to develop the fact that, in spite of his denial of it at trial, Burr did give a description of the murderer to the police at the hospital on the night of the kiling. In other words, the objective was to bring out the fact that a description had been given, not to elicit the actual description itself. If this was indeed the attorney’s aim, he did not explain his purpose. He did not protest the court’s ruling; he simply dropped the matter. If the court was mistaken in its understanding of the route intended to be pursued by the interrogation, the attorney did nothing to correct the misinterpretation. In reviewing the ruling we cannot speculate on facts which do not appear on record. Even if we were to do so, it would not aid the defendant. The subject of the quoted exchange — a description of Gustavo Colon given prior to February 10, 1972 — is not fixed in time or place. It might refer to any description of the defendant ever given by the witness. Thus, even if the objection had been overruled and he had answered the question either negatively or affirmatively, his assertion that he gave no one a description at the hospital would not have been contradicted.

The second alleged interference by the court with the defendant’s right to confront his accusers occurred when the court denied the defense motion to introduce a report taken at St. Mary’s Hospital on the night of the murder by Officer Bums. The witnesses named in the report as having supplied its contents were Daniel Burr and Jimmy Harris. James Harris was in court, and testified that on the night of the shooting he went to St. Mary’s, but gave his name to no one and did not discuss the shooting. Officer Bums was examined, and he could not state whether James Harris was the Jimmy Harris who had spoken to him at the hospital and he did not know if Daniel Burr was Nathaniel. The report was ruled inadmissible.

Where the State’s case is founded on eyewitness identification, a witness’ description as reported to the police shortly after the incident is relevant if it contradicts his trial testimony. However, a police report is not competent if doubt exists whether the statements were actually made by the particular witness sought to be impeached. (People v. Durso (1968), 40 Ill.2d 242, 239 N.E.2d 842.) The fact that a report contains statements by more than one witness does not alone vitiate its competence, since it may clearly attribute each statement to its source. Such was the case in People v. Green (1971), 133 Ill.App.2d 244, 272 N.E.2d 721. Here, on the other hand, inquiry by the court revealed that the report contained an amalgam of statements by two or possibly more persons. Officer Bums could not identify the witness Harris, nor specify the portions of the statement for which he was responsible. Thus, even assuming that Nathaniel Burr was the “Daniel” Burr named in the police report, it nevertheless remained impossible to isolate which statements were attributable to him. Since no witness could verify what statements if any had been made by either Harris or Burr, the police report was incompetent for impeachment purposes and the court properly refused to admit it.

The defendant’s appellate counsel suggests that the trial court meted out an unduly harsh punishment because it permitted itself to be influenced by Colon’s gang affiliation. He argues that “[i]f the evidence is studied carefully, it will show a racial rather than a gang motivation for the shooting.” The record does not support this interpretation of the court’s reasoning. At the pre-sentencing hearing, the prosecutor mentioned that gang activity should be stamped out. The defendant’s attorney then attempted to convince the court that the defendant became a member of the Latin Kings through intimidation. The court commented that the defendant was not on trial for being a gang member, and added words to the effect that in any event duress is no excuse for murder. The evidence at the trial had shown that, far from displaying any reluctance or visible effects of intimidation, the defendant fairly reveled in the execution of his victim. He fired repeatedly into the body of Glenn Burr, and then casually held the gun to the head of Verlinda Hamilton, who was spared only because the killers earlier zeal had emptied the weapon. No court would reasonably consider personal racial hatred, which appellate counsel tenders as a substitute for the purported gang motivation, a mitigating circumstance. There being no evidence that the court abused its discretion, the sentence will not be disturbed. People v. Moore (1971) 50 Ill.2d 24, 276 N.E.2d 319.

The charges pertaining to the ineffective assistance of the defendant’s trial counsel parallel the points raised in this appeal: (1) failure to object to the rebuttal testimony of Sergeant Struck; (2) failure to investigate the central figure of the alibi defense — Jose Colon — before presenting the alibi to the jury; (3) failure to ask for a continuance to compensate for the surprise generated by Jose’s testimony; (4) failure to take issue with the court’s ruling against the impeachment of Nathaniel Burr-through the use of his testimony at the preliminary hearing, and (5) failure to explain to the court the reason the name “Daniel Burr” appeared in the police report which the court refused to admit for impeachment purposes.

It has been held that an attorney’s mistakes which frustrate an alibi defense may demonstrate incompetency. (People v. Butler (1973), 11 Ill.App.3d 759, 298 N.E.2d 303.) While the defendant’s attorney was remiss in not objecting to Struck’s testimony, we have already held that given the strength of the State’s proof, the contradictory stories of the alibi witnesses and the harmful character of Jose Colon’s testimony, the admission of Struck’s testimony was not serious error. Counsel may well have been taken aback by the devastating effect of Jose’s testimony and felt that Struck’s could do little additional damage. The charge that he should have conducted an investigation of Jose — and hence the alibi— before placing the alibi in issue, implies that he was responsible for its going awry. The responsibility was not his, but his client’s. If the alibi was false, the defendant knew it. The attorney had no obligation to seek out Jose and question him about his presence at the party or about the truth of Gustavo’s statements.

There was no need to ask for a continuance following Jose’s exposure unless there was something to be gained by it. The inference is that the defense required time to regroup its forces. Why and for what purpose are not explained. It could not have been to prepare another alibi or a different defense; the die had been cast — the same jury would have had to pass judgment on the substitute. The attorney’s tactical decision not to request postponement of the trial does not in any way indicate a lack of competence.

Since we have held that the court properly excluded Nathaniel Burr’s testimony at the preliminary hearing and Officer Bums’ report, we cannot find fault with the defense counsel for his failure to persuade the court to admit them.

Evaluating an attorney’s competence does not extend to those areas involving the exercise of judgment, discretion or trial tactics, even though other attorneys or the court itself might have chosen to act differently. (People v. Martin (1970), 44 Ill.2d 489, 256 N.E.2d 337.) Considering the facts of this case, the errors of judgment charged to the defendant’s attorney cannot be said to have affected its outcome, much less to have denied the defendant reasonably effective assistance of counsel.

The judgment is affirmed.

Affirmed.

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


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald R. Bereta, Defendant-Appellant.
    (No. 58567;
    First District (3rd Division)
    June 20, 1974.

      Paul Bradley and Martin Carlson, both of the State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

Defendant, Donald R. Bereta, was charged in a multiple-count indictment with the murder of Frank Guarisco and with the attempt murder and aggravated battery of Charles Woodard, in violation of sections 9 — 1, 8 — 4 and 12 — 4 of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, pars. 9 — 1, 8 — 4, 12 — 4.) After a bench trial he was found guilty of the lesser included offense of voluntary manslaughter of Frank Guarisco and was found not guilty by reason of self-defense of the offenses of attempt murder and aggravated battery of Charles Woodard. He was sentenced to a term of 3 years to 8 years. On appeal he contends that he was not proven guilty of the offense of voluntary manslaughter beyond a reasonable doubt and that the minimum term imposed is excessive in light of the sentencing provisions of the Unified Code of Corrections.

During the early morning of October 9, 1971, the defendant, aged 22, engaged in a fight with Frank Guarisco, aged 17, and Charles Woodard, aged 20, in which the latter two men suffered knife injuries inflicted by the defendant. Woodard suffered cuts to the arm and ankle, Guarisco suffered cuts to the arm and neck. He died from the latter wound.

Charles Woodard testified for the People that on October 8, 1971, he resided in the 3100 block of South Racine Avenue in Chicago with his wife, Donna, who was pregnant at the time, and his two children. At about 10:30 P.M. on that date he and Guarisco were in the apartment of Mary Rogers, defendant’s fiancee, located at 45th and Halsted Streets in the city; also present in the apartment at the time were Mary Rogers and the defendant’s brother and 19-year-old sister, Sandy. The witness had known the defendant for several years, the defendant being the godfather of one of his children, and the witness and Guarisco had gone to the apartment to congratulate the defendant on his impending marriage because the defendant’s sister had earlier been to the witness’ house but had not extended an invitation to a party at the Rogers apartment.

The witness testified that defendant entered the Rogers apartment, called the witness a “punk”, stated that he had been looking for the witness, and threw a knife between the witness’ legs. A struggle ensued between the witness and the defendant; Guarisco intervened to stop the fight; the defendant was knocked into a chair and stated that he was going to kill the witness and Guarisco; and the latter two men then left the apartment.

Charles Woodard testified that he and Guarisco then went to the witness’ apartment and to a restaurant, after which they returned to the witness’ apartment shortly before midnight. Woodard observed the defendant standing in the street in front of the apartment building with a knife in his hand, the witness asked him what he wanted, and the defendant again stated that he was going to kill them. The defendant lunged at Woodard with the knife, Woodard took a tire iron from Guarisco which the latter had taken from the witness’ car, and the witness unsuccessfully tried to knock tire knife from the defendant’s hand. At this point, the witness’ wife and Susanne Stell were outside, screaming, and the defendant stated that he could “stick” the knife wherever he wished; the witness testified that he became concerned at this remark because his family was present. Guarisco was watching the women and telling them to return to the apartment, when the defendant “turned off” the witness and lunged onto Guarisco, stabbing him; Guarisco fell to the ground and blood was coming from his neck. The witness ran to a comer shop to call an ambulance.

Charles Woodard testified that he did not see a house brick or any other weapon in the hand of Guarisco at the time he was stabbed in the neck; Guarisco had solely attempted to stop the confrontation between the witness and the defendant. He further testified that prior to going to the Rogers apartment, he and Guarisco had been helping a neighbor pick up and deliver a television set, after which he had learned that the defendant’s sister had been at his apartment; his wife did not tell him that if he went to the Rogers apartment to see the defendant’s sister she would be “through with him.”

Donna Woodard testified for the People that she was in her apartment with Susanne Stell when she heard her husband’s car drive up about midnight. She and Stell went into the gangway next to the house from where she observed the defendant jump into the street with a knife and run after her husband, stating that he was going to kill him. The witness’ husband then took a tire iron from Guarisco and struck the defendant on the arm, but failed to dislodge the knife from his hand. Guarisco had attempted to circle around the defendant, to prevent the latter from harming her husband; the witness took a hammer which Susanne Stell had been holding and threw it at the defendant, but missed. The defendant then made a motion as though he was going to throw the knife at the women; Guarisco stood between the defendant and the women, with his back to the defendant; and Susanne Stell threw a pop bottle at the defendant. The defendant approached Guarisco from the rear, stabbed him in the neck, and pulled him to the ground; Guarisco was holding nothing in his hands at the time. Mrs. Woodard further testified that earlier that evening, defendant’s sister had been to the Woodard apartment looking for the witness’ husband; that when her husband arrived home later he wished to go to the party to congratulate the defendant; that she was not upset over her husband wishing to attend the party without her; and that the defendant had been to the Woodard apartment earlier that evening looking for her husband.

Susanne Stell testified for the People that she and Guarisco resided in an apartment in the same building as did the Woodards; that she was in the Woodard apartment when Charles Woodard drove up about midnight and hollered; she took a hammer, and she and Donna Woodard ran outside, where she observed defendant with a knife threatening to kill Woodard. She observed Woodard take a tire iron from Guarisco and attempt to knock the knife from defendant’s hand; Donna Woodard thereupon threw a hammer which she had taken from the witness. The defendant started to throw the knife at the women. Guarisco stepped between the defendant and the women and told them to return to the house, and the defendant approached Guarisco from the rear and stabbed him in the throat; defendant then pulled Guarisco to the ground and fled. The witness did not know if Woodard had been cut prior to taking the tire iron from Guarisco. She saw no bottle in Guarisco’s hands, and she heard no bottle crash, although she threw a bottle at the defendant when he was behind the deceased. The witness further testified that defendant’s sister had been at the apartment earlier that evening, looking for Charles Woodard; Donna Woodard had told her (the witness) that defendant’s sister had been telephoning her husband at work. When Charles Woodard arrived home that evening, Donna Woodard begged him not to go to the party; defendant had also been at the Woodard apartment earlier that evening and spoke to Donna Woodard concerning defendant’s sister’s coming to the apartment looking for Charles Woodard.

John Gudas testified for the People that he resided in a basement apartment near the Woodard residence and that he was employed as a security officer for the House of Correction. He had been watching television in his apartment about midnight when he heard screams outside; he observed the defendant with a knife, Charles Woodard with a tire iron, and Guarisco with a pop bottle, the three men standing in the street in the form of a “triangle.” He also observed two women in the area and he heard that someone in the crowd had a hammer, but he had observed none. The witness determined that there would be trouble, he proceeded to his apartment to telephone the police, and a bottle was thrown, crashing near him; the bottle which was thrown was the one held by Guarisco, but he was not certain who threw the bottle. After placing the call to the police, the witness returned to the scene and observed Guarisco on the ground, bleeding from the neck. The witness saw no one throw a hammer during the confrontation, and he observed no bottle at the scene upon his return from his apartment.

Police Officer Albert Mientus testified for the People that he investigated the incident and found no weapons at the scene; defendant was stopped about two blocks from the scene.

Defendant testified in his own behalf that he resided with Mary Rogers in her apartment and that Mrs. Rogers was his fiancee. On October 8, 1971, he had arrived at her apartment, and present were Mrs. Rogers, defendant’s brother and sister, and Woodard and Guarisco. Defendant had known Woodard for about 7 years, but had known Guarisco only casually; all three men had been drinking that day. The defendant spoke to Woodard, and Woodard told him that he had been told that there was a party in the Rogers apartment to celebrate the defendant’s engagement. Defendant replied that it was not a party, but a family reunion, and that Woodard and Guarisco would have to leave, because the defendant and Mrs. Rogers were going to visit defendant’s mother and also because defendant’s sister would have to babysit with Mrs. Rogers' children and defendant did not want them to remain in the apartment. Guarisco told the defendant that they did not have to leave and a scuffle ensued between the defendant and the other two men; defendant’s sister attempted to stop the confrontation. Woodard and Guarisco left the apartment, with the defendant’s sister following shortly. The defendant had a ten-inch knife with a six-inch blade on his person at that time, and he placed the knife on a table in the Rogers apartment but did not throw it at Woodard’s feet.

Defendant further testified that after the confrontation with Woodard and Guarisco, he took the knife and went in search of his sister near Woodard’s home. He observed Woodard’s car drive up near the Woodard home, he approached Woodard and asked where his sister was, and Woodard took a tire iron from Guarisco who had gotten out of the car with it, and struck the defendant in the head with it. The defendant was struck with the tire iron again and fell to the ground. He then pulled the knife from his pocket and swung at Woodard’s legs to keep him back. Woodard shouted that defendant had a knife, and Mrs. Woodard and Susanne Stell came out of the house. The defendant was kept on the ground by Woodard swinging the weapon; Woodard backed away and defendant rose to his feet; and defendant was forced to the middle of the street between Woodard and Guarisco, who blocked defendant’s access to a nearby alley. Guarisco at this time was holding a house brick in his hand. Woodard then threw the tire iron at the defendant, missing him, and ran to a comer shop. As the defendant turned to run down the alley, Guarisco, still holding the brick, would not allow him to pass. Guarisco swung the hand with the brick at the defendant and defendant attempted to cut Guarisco on the arm; as the defendant swung the knife at Guarisco for that reason, the latter ducked and the knife struck him in the neck. The defendant fell to the ground, rose, and fled down the alley; he did not know what happened to the knife thereafter. The defendant testified that he had “calmed down” after the confrontation at the Rogers apartment and prior to seeing Woodard and Guarisco outside the Woodard apartment, and that he did not have his knife out of his pocket when he first observed the Woodard car arrive prior to the second confrontation. He further testified that he did not make complaint of his own injuries received in the fight until he was taken to the County Jail after his arrest.

Mary Rogers testified for the defendant concerning the confrontation at her apartment involving the defendant and the other two men. She recounted that although she was not in the room at the time, she heard defendant throw his knife on the floor and that he took the knife when he left the apartment after the confrontation; defendant always carried the knife due to the character of the neighborhood. She stated that she had earlier asked Woodard and Guarisco to leave her apartment, and that defendant was angry when he left in search of his sister. Mary Marcotte testified for the defendant that she resided next door to the Woodard apartment, and that she was with Woodard and Guarisco while the latter men were securing a television set from her brother. The witness recounted that while at the Woodard apartment later that day she heard Mrs. Woodard tell her husband not to go to a party or she would “be through with him,” and that about 10 minutes after Woodard left, the defendant arrived and conversed with Mrs. Woodard. Betty VanHoy also testified for the defendant that she resided next door to the Woodard apartment and that about midnight on October 9, 1971, she observed and heard Woodard and two other men walking and swearing outside; Woodard and one of the other men were in a confrontation with a lone man, who was stating that he did not want to fight but that if he had to he would take one of the others. The witness left her observation point, after which she heard Woodard exclaim, “Oh my God. He is dead.” The witness observed no weapons during the confrontation. In rebuttal, Police Officer Mientus testified that defendant had a slight cut on his chin when he was arrested.

Prior to the finding of guilty, the trial court commented that Charles and Donna Woodard and Susanne Stell had “gotten together” on their testimony, that the question in the case was whether or not defendant acted in self-defense, and that the court was not inclined to believe the defendant’s testimony as to the Frank Guarisco incident. The court noted that the truth was “somewhere in between” the testimony of those three witnesses and that of the defendant, and that “somehow” the three men got into a fight in the street. The court was of the opinion that the evidence did not make out a case of murder, but that it did prove that defendant was guilty of voluntary manslaughter; the court was also of the opinion that the defendant was not guilty of the offenses charged with regard to Charles Woodard since Woodard had been armed with a tire iron during the confrontation and defendant had therefore acted in self-defense as to Woodard. The court also noted prior to imposing sentence that it would not be known what happened during the confrontation, because of the conflicting stories, nor why the defendant drew the knife and slashed the deceased.

Defendant’s contention that he was not proven guilty beyond a reasonable doubt is bottomed upon his theory that because the trial court allegedly did not believe the testimony of the Woodards and Stell, his defense of self-defense went unrebutted, and upon the theory that the trial court expressed doubts as to the proofs in the case.

Contrary to defendant’s contention, the trial court noted only that the Woodards and Stell had “gotten together” on their testimony; that finding does not, as defendant now contends, indicate that the court “totally rejected” their entire testimony. On the contrary, the court specifically stated that the truth in the case lay somewhere between their testimony and that of the defendant, and specifically found that Frank Guarisco was not armed at the time he was killed, which was the evidence offered solely by those three witnesses. As indicated by the trial court, the court believed a portion of the People’s case and a portion of the defendant’s case, as was his prerogative as the trier of facts. People v. Watkins, 13 Ill.App.3d 411, 413, 300 N.E.2d 308.

The comments of the trial court, that the truth of the matter lay somewhere between the People’s evidence and the defendant’s evidence, and that the truth of the matter will never be known, does not indicate that the court was expressing doubt in connection with the evidence adduced as to defendant’s guilt, as defendant now contends. Taken in the context in which the court had expressed those comments, it is apparent that the court was simply indicating, in accord with the general observations reflected in the Watkins case, that only portions of the evidence was to be believed and that the full truth of what actuaUy triggered the altercation would never be known. Further, the fact that People’s witness Gudas testified that Guarisco was armed with a pop bottle during the confrontation does not prove defendant’s theory of self-defense as against Guarisco, as defendant contends; defendant himself testified that Guarisco was armed with a brick at that time, and Gudas also stated that the bottle had been thrown by some unknown person prior to the witness’ entry into his apartment to call the police. The People adduced sufficient evidence upon which the trial court could have found the defendant guilty of the offense of voluntary manslaughter, and which rebutted his theory of self-defense as to Frank Guarisco.

Defendant further contends that the offense of voluntary manslaughter is a Class 2 felony under the Unified Code of Corrections, the minimum term of punishment for which cannot exceed one-third of the maximum term imposed, and that the minimum term imposed in the instant case must therefore be reduced to a term of 2 years, 8 months, since the maximum term imposed was 8 years. The People concur in this viewpoint. Defendant’s contention in this regard is correct, and since the instant case has not yet reached final adjudication and the sentencing provisions of the Unified Code of Corrections will benefit defendant, the minimum term imposed must be modified to a term of 2 years, 8 months. Ill. Rev. Stat. 1973, ch. 38, pars. 9 — 2(c), 1005 — 8—1 (c) (3); People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.

For these reasons, the sentence imposed upon defendant is modified to a minimum term of 2 years, 8 months and a maximum term of 8 years, and the judgment as so modified is affirmed.

Judgment affirmed as modified.

Mr. JUSTICE MEJDA took no part in the consideration or decision of this case.


text:
      In re Jarrett Williams, a Minor — (The People of the State of Illinois, Petitioner-Appellee, v. Jarrett Williams, Respondent-Appellant.)
    (No. 58767;
    First District (3rd Division)
    June 20, 1974.
    Paul Bradley and Richard D. Thomas, both of the State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Sharon Hope Grossman, and Richard H. Casper, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Respondent, Jarrett Williams, a minor, was adjudicated delinquent after a hearing in which the court determined that he had committed the offense of burglary. Respondent was placed on probation for a period of 6 months. On appeal he contends that the evidence was not sufficient to establish beyond a reasonable doubt that he committed the offense of burglary.

At the hearing on the petition for adjudication of wardship, Officer Charles Turner testified for the State that on December 11, 1972, while he was off duty, he observed a youth standing on the corner of 94th and Rhodes Streets at about 11 A.M. After watching the boy for about 15 minutes he saw the respondent join him. The outside temperature was about 5 degrees below zero. Respondent emerged from an alley, showed the other youth a small black transistor radio, and exchanged an unidentified item (or items) as they both proceeded to the Gillespie School approximately a half block north of 94th Street on Wabash Avenue. There they met three other young men who were carrying two television sets and a movie projector. Officer Turner identified Ira Williams, respondent’s brother, as the one who was carrying the movie projector.

As a squad car proceeded south on Wabash Avenue toward them, all five boys ran into the gangway of a house. Turner stopped the squad car, identified himself as a police officer, and informed the driver, Officer Frank Demitrico, of the suspicious activities of the boys whom Demitrico had just passed. All five boys approached the corner where the officers were stopped, but two of them disappeared. After a brief conversation with the three as to where they obtained the items, the officers placed them in custody. The officers went to 94th and Rhodes Streets, then returned to the vicinity of the arrest to see if there had been a recent burglary in either area. Officer Demitrico received a call to proceed to 9344 South Rhodes concerning a burglary. George Moore, who resided at that address, identified the television sets and movie projector as his property. Officer Turner further testified that he first saw Ira Williams with the projector in the 9300 block of Wabash Avenue, about seven blocks from the scene of the burglary.

Officer Frank Demitrico testified for the State that he was stopped by Officer Turner; that he saw five boys who ran into a gangway between two houses as he turned the corner onto Wabash Avenue; that he and Officer Turner stopped three of the boys who emerged from the gangway; that Ira Williams was carrying a movie projector and. respondent Jarrett Williams was carrying a television set. When questioned as to the ownership of the items the boys replied that they belonged to them. An assist police car was called and Officer Demitrico and Officer Turner proceeded to 9344 South Rhodes Street where he observed that the basement window of the house was completely broken out; the house had been ransacked; and the owner, George Moore, identified the items as his property.

George Moore testified for the State that he is the owner of the residence at 9344 South Rhodes; that on the day in question the house was unoccupied after 9 o’clock that morning; that the basement windows were in good shape; and that he never gave anyone permission to enter or take anything from the premises. Moore was later called on behalf of the respondent and further testified that Bradley Hardy was his wife’s 14-year-old cousin, and that he had never given Hardy permission to enter his home during his absence.

Ira Williams was called on behalf of the respondent and testified that Bradley Hardy asked him to help pick up some things his uncle had given him; that he waited outside while Hardy made several trips into the house and brought out two television sets, a movie projector, and a tape recorder. He stated that while he was waiting he thought he heard some glass breaking; that as they walked in the vicinity of the Gillespie School, Ira saw his brother, the respondent, coming from his girl friend’s house, and he asked him to help him carry a television set. His brother did not ask where they had obtained the items, but they told him. Ira further stated that when he saw the police he did not run away, but that Hardy was not with him when he was arrested.

The respondent maintains that the State failed to prove beyond a reasonable doubt all of the essential elements of the crime of burglary (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1(a)). We do not agree.

Circumstantial evidence may be sufficient to prove the commission of a burglary. (People v. Franceschini (1960), 20 Ill.2d 126, 169 N.E.2d 244; People v. Reynolds (1963), 27 Ill.2d 523, 190 N.E.2d 301; and People v. Harris (1972), 53 Ill.2d 83, 288 N.E.2d 873.) In Franceschini, at page 130, our supreme court held that:

“[R]ecent, exclusive and unexplained possession of the proceeds of a burglary in itself gives rise to an inference of guilt which may be sufficient to sustain a conviction unless there are other facts and circumstances which leave in the mind of the jury, or the trial court if a jury is waived, a reasonable doubt of guilt.”

In People v. Harris, supra, the defendants were arrested as they came down a flight of stairs preceded by two other men carrying a cash register in a canvas bag. As they reached the street level, the defendants attempted to help carry the bag. Defendant Strawhorn was seen entering a cleaning establishment and leaving with the canvas bag. There was testimony that on the evening of the burglary he was physically unable to carry any substantial weight, and that he was with his fiancee on that night. He further testified that when arrested he was merely helping some friends carry the object. The trial court instructed the jury that if they found the defendants knowingly had exclussive possession of recently stolen property with no reasonable explanation of possession, the jury might infer that the defendants had obtained possession of the property by burglary. The supreme court held that the tender of the instruction was proper, and stated at page 87:

“Possession being, a question of fact, under this state of the evidence, it was properly a subject for the determination of the jury, which determination will not be disturbed unless there are facts and circumstances which create a reasonable doubt of the defendant’s guilt. [Citations.] It is within the jury’s province to believe or not believe the testimony of the defendants and their witnesses. The credibility of the witnesses and the weight to be given to their testimony and the inferences to be drawn therefrom are solely for the jury. [Citations.] Joint possession with another is sufficient to constitute exclusive possession within the meaning of that term as used in the questioned instruction. [Citations.]”

The defendants there maintained that their guilt was not proved beyond a reasonable doubt since their conduct could be interpreted as innocent actions. The court held at page 88 that the jury heard the witnesses and “We cannot say there are other facts and circumstances which create a reasonable doubt of defendants’ guilt.”

In the instant case, the trial court found little credibility in the testimony of Ira Williams who, incidentally, was named as a respondent in the proceedings, together with his brother Jarrett. Respondent was first observed in close proximity to the scene of the burglary. While in possession of stolen articles he hid, although momentarily, at the sight of an approaching police car. He was arrested while in possession of stolen property. At the time of trial his brother offered an explanation of respondent’s possession of stolen property which the trial court did not consider to be a reasonable explanation.

Therefore, we hold that in view of all the facts and circumstances, the trial court did not err in inferring that respondent was guilty of the crime of burglary. We cannot say that there are facts and circumstances in the case which create a reasonable doubt of respondent’s guilt. The judgment of the circuit court is therefore affirmed.

Judgment affirmed.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Moses Steele, Defendant-Appellant.
    (No. 58817;
    First District (3rd Division)
    June 20, 1974.
   PER CURIAM.

DEMPSEY, J., took no part.

James J. Doherty, Public Defender, of Chicago (David Hirschboeck and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Alan L. Fulkerson, Assistant State’s Attorneys, of counsel), for the People.