author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT BANKS, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2647
    Opinion filed January 25, 1993.

      Randolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Kenneth T. McCurry, and John J. Kim, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant Robert Banks was found guilty of three counts of armed robbery. The trial judge sentenced defendant to 20 years in the Illinois State Penitentiary. The alleged trial errors defendant asserts on appeal are: (1) that the prosecution’s systematic exclusion of blacks by peremptory challenges violated his constitutional rights; (2) that his statements to the assistant State’s Attorney should have been suppressed because they were taken in violation of his right to counsel and, therefore, were involuntary; (3) that he was not proven guilty beyond a reasonable doubt; and (4) that his 20-year prison sentence was excessive and should be reduced.

On June 6, 1986, at approximately 1:50 a.m., Diane Barrett and Joyce Branch were walking toward Joyce’s home. A friend of theirs, Michael Babuskow, saw them as he was driving by and offered them a ride home. On the way, they stopped for gas at the Shell station on 43rd by the Dan Ryan. Diane and Joyce remained in the car while Michael pumped the gas. According to their testimony, they were then robbed at gunpoint by four men. The robbers stole $13 from Michael, some jewelry from Diane, and eyeliner and glasses from Joyce. According to the victims’ testimony, Michael was knocked to the ground and beaten. The victims also testified that, at some point, the gas station attendant announced over the public address system that he had called the police. One of the robbers then threw a garbage can through the back window of Michael’s car and all four fled on foot.

Subsequently, the police presented the victims with “photographic arrays” and each identified defendant and his three codefendants, Gene Jones, Frank Williams, and O’Neal Johnson, as the robbers. An arrest warrant was issued for defendant based upon the photographic identification and he was arrested on August 22, 1986. Defendant was placed in a lineup that night and Joyce identified him as one of the robbers. Detective Kwilos informed defendant that he had been identified and read him his Miranda warnings. Defendant indicated he understood his rights and he expressly invoked his right to counsel.

Kwilos then informed Assistant State’s Attorney Barbaro that defendant was back in lockup and that he desired to speak to an attorney. Barbaro and Kwilos returned to the lockup to have a conversation with defendant. Both Kwilos and Barbaro testified that Barbaro informed defendant that he was not defendant’s attorney, that defendant had been identified in the lineup, and that he was probably going to charge defendant with armed robbery that night. Barbaro then went into an interview room across from the lockup to work on some paperwork. Defendant then asked Kwilos if he could speak to Barbaro. According to Kwilos and Barbaro, after Kwilos brought defendant to Barbaro, Barbaro again told him his Miranda warnings and explained to him that he was not his attorney. Defendant indicated that he understood his rights. Barbaro stated that defendant then asked several questions; specifically, he asked whether it would help him or hurt him to make a statement. Barbaro testified that he responded by saying that “[njobody likes a liar [and that] [hjonesty is the best policy.” According to Barbaro, defendant thought about it and “hemmed and hawed” but then decided to make a statement. After telling Barbare “what happened,” Barbare transcribed defendant’s statement. Defendant refused to sign the statement.

At trial, defendant testified that he was at the Shell station getting gasoline with several friends when he saw Michael Babuskow. He testified that he recognized Michael as one of about eight white men who had shouted racial slurs and attacked defendant and several of defendant’s friends three weeks earlier. Defendant testified that Michael had hit him with a stick during the racial incident. Defendant stated that when he saw Michael at the Shell station he became very upset and drove away without his friends. He parked his car around the block from the station and came back “to fight with Michael.” He stated that he ran up behind Michael and hit him and they both fell to the ground. He testified that he did not see his friends or the two women in the car. He then got up when he heard sirens, threw the garbage can through the back window of the car, and ran away. He stated he never had a gun. He acknowledged that his friends “might have been taking the women’s stuff,” but that he did not see the women or his friends.

Ted Griffin supported defendant’s testimony that several weeks prior to the alleged robbery he and defendant had been attacked in a white neighborhood by a group of white men shouting racial slurs. Griffin was unable, however, to identify Michael as one of the attackers.

All three of the codefendants, Jones, Williams, and Johnson, pleaded guilty and were sentenced to seven years in the Illinois Department of Corrections. Defendant requested a jury trial. Prior to trial he filed a motion to suppress his statement on the ground that it was taken in violation of Miranda because he had expressly requested to speak to an attorney. His motion was denied. Defendant was found guilty and sentenced to 20 years in the Illinois Department of Corrections.

I

Defendant’s first contention on appeal is that the State’s systematic exclusion of blacks from the jury through the use of peremptory challenges denied him equal protection of the law. The State contends that its explanations for striking the jurors in question properly were determined by the trial court to be race-neutral.

In Batson v. Kentucky (1986), 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83, 106 S. Ct. 1712, 1719, the United States Supreme Court held that “the Equal Protection Clause forbids the prosecutor to [peremptorily] challenge potential jurors solely on account of their race.” The Batson Court set out an approach for analyzing an objection to the prosecutor’s exercise of peremptory challenges. First, defendant must make out a primet facie showing of purposeful racial discrimination in the State’s exercise of its peremptory challenges. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) If in view of all relevant circumstances defendant sets forth his prima facie case, the burden then shifts to the State to articulate a “clear and reasonably specific” race-neutral explanation for each of its questioned peremptory challenges. (Batson, 476 U.S. at 98 n.20, 90 L. Ed. 2d at 88 n.20, 106 S. Ct. at 1724 n.20; People v. Harris (1989), 129 Ill. 2d 123, 184, 544 N.E.2d 357, 384.) A race-neutral explanation is one “based on something other than the race of the juror.” (Hernandez v. New York (1991), 500 U.S. 352, 360, 114 L. Ed. 2d 395, 406, 111 S. Ct. 1859, 1866.) Although this explanation “need not rise to the level justifying exercise of a challenge for cause,” the prosecutor will not rebut a prima facie showing by merely guaranteeing to the court that he had no discriminatory motive. Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723-24; People v. McDonald (1988), 125 Ill. 2d 182, 198, 530 N.E.2d 1351, 1358.

Finally, the trial court must then determine “if the defendant has established purposeful discrimination.” (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1724.) In coming to its conclusion, the trial judge must make “ ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case.’ ” (Harris, 129 Ill. 2d at 174-75, 544 N.E.2d at 380, quoting People v. Hall (1983), 35 Cal. 3d 161, 167, 672 P.2d 854, 858, 197 Cal. Rptr. 71, 75.) The trial court’s determination on the issue of discrimination is a finding of fact which in a large part turns on an evaluation of credibility and, therefore, is entitled to great deference. Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21; Harris, 129 Ill. 2d at 175, 544 N.E.2d at 380.

The Illinois Supreme Court has often analyzed a trial court’s determination on purposeful discrimination in the use of peremptory challenges under a “manifest weight of the evidence” standard. (See People v. Hope (1990), 137 Ill. 2d 430, 472, 560 N.E.2d 849, 866; Harris, 129 Ill. 2d at 175, 544 N.E.2d at 380; People v. Mack (1989), 128 Ill. 2d 231, 238, 538 N.E.2d 1107, 1111; McDonald, 125 Ill. 2d at 199, 530 N.E.2d at 1358.) The Illinois Supreme Court apparently also has utilized a “clearly erroneous” standard. (See People v. Young (1989), 128 Ill. 2d 1, 21, 538 N.E.2d 453, 457.) Recently, however, in Hernandez v. New York (1991), 500 U.S. 352, 369, 114 L. Ed. 2d 395, 412, Ill S. Ct. 1859, 1871, the United States Supreme Court stated that it would not reverse “[a] state trial court’s finding on the issue of discriminatory intent unless convinced that its determination was clearly erroneous.” (Emphasis added.) Then, in 1991, the Supreme Court granted certiorari in the Hope case, vacated the Illinois Supreme Court decision and remanded for further consideration in light of Hernandez. (People v. Hope (1990), 137 Ill. 2d 430, 560 N.E.2d 849, cert. granted (1991), 501 U.S. 1202, 115 L. Ed. 2d 966, Ill S. Ct. 2792, rehearing denied (1991), 501 U.S. 1269, 115 L. Ed. 2d 1097, 112 S. Ct. 13, remanded & modified on rehearing (1992), 147 Ill. 2d 315, 589 N.E.2d 503.) It appears that on remand, the Illinois Supreme Court reviewed the trial court’s conclusion on the issue of purposeful discrimination in jury selection under the clearly erroneous standard. (People v. Hope (1992), 147 Ill. 2d 315, 321, 589 N.E.2d 503, 506.) Nonetheless, if the exercise of even one peremptory challenge is determined to have been racially motivated, the defendant’s conviction must be reversed and remanded for a new trial. Harris, 129 Ill. 2d at 175, 544 N.E.2d at 380; People v. Baisten (1990), 203 Ill. App. 3d 64, 77, 560 N.E.2d 1060, 1068.

The first consideration then, in the instant case, is whether defendant made out a prima facie showing of racial discrimination. In its brief, the State concedes that the trial court implicitly found a prima facie case of purposeful discrimination, but then argues that, based upon the record, defendant cannot properly establish such a case. The issue is irrelevant, however, in light of the Hernandez decision. In Hernandez (500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866), the Supreme Court stated that “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” In the instant case, the prosecutor offered race-neutral explanations for his peremptory challenges and the trial court ruled that they were not racially motivated. Therefore, we turn directly to the question of whether the State has met its burden of providing “clear and reasonably specific” race-neutral explanations.

In the instant case, after the State exercised its sixth straight peremptory challenge against a black individual, the defense objected under Batson. The trial judge called counsel into chambers, clearly annoyed that “the State would create this issue.” It was noted for the record by both the judge and defense counsel that all of the State’s challenges had been used against black individuals. The State immediately withdrew its last challenge. The judge stated that withdrawing the objection was “a very wise decision” because the juror’s qualifications were “impeccable.” The State then insisted that all its challenges were based on racially neutral grounds and asserted that “defense in this case has excused Dallas Green, as well as, I believe, other black individuals who have been accepted by the State.” The judge expressed his belief that “[b]oth sides have used challenges to try and select a fair and impartial jury.” However, so the case would not have to be sent back for a Batson hearing, he asked the State to indicate for the record “reasons other than racial” to explain the exercise of its peremptory challenges.

After the prosecutor stated the State’s explanations, the trial judge concluded that the State’s exercise of its peremptory challenges was “not racial in nature, but just in the State’s Attorney trying to achieve a fair and impartial trial.” For the record, the defense objected, asserting that the State’s reasons were pretextual and separated the State’s explanations into two categories. First, defense objected that the reasons the prosecutor asserted for excluding the black veniremembers would also have applied to the white veniremembers the State accepted and, therefore, the only difference between the veniremembers the State accepted and those it did not accept was their color. Second, the defense argued that when the prosecutor could not come up with anything else, she merely asserted those “types of things [that do not] show up in a record” and for which there is nothing for an appellate court to look at such as “somebody’s tone of voice or the look in their [sic] eye.” Finally, defendant impliedly argues by including an appendix to its brief labeled “Trial Court’s Views On The Batson Case,” that the trial judge’s finding at the Batson hearing is “suspect” due to the court’s, to say the least, “critical view” of the Batson decision.

The State’s first peremptory challenge was exercised against Sapata Wilkes. The prosecutor stated that the fact that Mr. Wilkes was 27 years old, unmarried, and had a two-year-old son indicated to her that he was not responsible and, therefore, should not be on the jury. The judge “found that to be true and [had] no quarrel with that exclusion.” It is clear that the judge was drawing upon his own observation of the venireperson and, therefore, under the deferential standard of review to be applied, we cannot say that this venireperson’s exclusion was racially motivated.

The State’s second challenge was exercised against Reesie Williams. The prosecutor stated that due to the fact that Mrs. Williams is a 65-year-old housewife who rents her apartment, has been a widow for 42 years, and has a grown-up daughter, she believed her “limited background” would make her a bad juror. The trial judge said “okay.” We concede that a juror’s background is relevant and will necessarily affect her view of the evidence presented in a case. However, to say that a 65-year-old widow and mother of one who rents her apartment automatically has a “limited background” making her unfit to be on a jury is unacceptable. Such reasoning is nonsensical and completely meaningless without further explanation. Although the State’s explanation need not rise to the level of a challenge for cause, the prosecutor must do more than merely list a series of unrelated facts to rebut a defendant’s prima facie showing of purposeful racial discrimination. (Harris, 129 Ill. 2d at 184, 544 N.E.2d at 384.) The reason set forth by the State is far from the “clear and reasonably specific” race-neutral explanation the State must present in order to meet its burden.

The State also peremptorily challenged Grace Duison. The prosecutor stated that Mrs. Duison was divorced and had sons the approximate age of defendant. In fact, Mrs. Duison had two sons ages 20 and 16 and a daughter who was age 30. At the time of trial, defendant was 27 years old. The judge determined that these reasons were a legitimate basis upon which to base a peremptory challenge because Mrs. Duison might identify with defendant. The relevant exchange between the court and the prosecutor at the Batson hearing reads as follows:

“MS. BUGLASS [Assistant State’s Attorney]: As to Grace Duison, that was our fourth challenge. She has sons that are approximately the age of the defendant, and she is divorced.
THE COURT: Okay. For those reasons you felt she might identify with the defendant and not be able to give you a fair and impartial trial?
MS. BUGLASS: Yes.
THE COURT: So you used one of your peremptory challenges?
MS. BUGLASS: Yes.”

Defendant argues, however, that several white jurors who were accepted by the State had the same characteristics as Mrs. Duison. He asserts, therefore, that it must be presumed that the prosecutor’s reason for striking her was “merely a pretext to hide a racial motivation.” (Young, 128 Ill. 2d at 23, 538 N.E.2d at 458.) Defendant points out that juror Jack Norris had two sons, ages 32 and 20. Norris also had a daughter who was 23 years old. Defendant also points out that juror John Perkins, who was separated from his wife, had five children, the youngest between 20 years old and 30 years old. Additionally, the record shows that juror James Swanson was 27 years old and juror Larry Young was 24 years old.

The mere fact that the State challenges a black venireperson for reasons which are equally applicable to an accepted white venireperson does not show in and of itself that the offered explanation is pretextual. (People v. Hooper (1989), 133 Ill. 2d 469, 511, 552 N.E.2d 684, 701.) The accepted white venireperson may have had some other characteristic which, in the mind of the prosecutor, made that person more desirable as a juror. (Young, 128 Ill. 2d at 23-24, 538 N.E.2d at 458-59.) This contention by a defendant, however, cannot be “lightly dismissed.” (Young, 128 Ill. 2d at 23, 538 N.E.2d at 458.) Moreover, if evidence exists of common characteristics between challenged black veniremembers and accepted white veniremembers, the trial court should give this evidence “great weight *** in evaluating the State’s explanations.” Harris, 129 Ill. 2d at 180, 544 N.E.2d at 382.

In fact, this contention was given no weight by the trial judge, who did not even give the defense arguments passing consideration. The record is clear that he did not consider the characteristics of the white jurors who were accepted by the State when he ruled that there was no discrimination. The prosecutor offered no explanation as to why, for example, juror Jack Norris would not “identify” with the 27-year-old defendant even though he had two sons ages 32 and 20, but Grace Duison would “identify” because she had two sons ages 20 and 16. Therefore, without considering all the relevant factors, the trial judge held that there was no intentional discrimination. The trial judge clearly failed to undertake “ ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case.’ ” Harris, 129 Ill. 2d at 174-75, 544 N.E.2d at 380, quoting Hall, 35 Cal. 3d at 167, 672 P.2d at 858, 197 Cal. Rptr. at 75.

Additionally, as stated above, the prosecutor must do more than simply list a series of facts. (Harris, 129 Ill. 2d at 184, 544 N.E.2d at 384.) A trial judge cannot presume or infer from the facts listed by the prosecutor “that an unarticulated neutral explanation exists.” (Harris, 129 Ill. 2d at 184, 544 N.E.2d at 384.) “Rather, a court must focus its inquiry on the reasons actually articulated by the State.” Harris, 129 Ill. 2d at 184, 544 N.E.2d at 384.

As illustrated by the above exchange between the trial judge and the assistant State’s Attorney, the prosecutor merely listed several facts about Mrs. Duison. The trial judge then inferred from the facts stated that the State felt Mrs. Duison would be prejudiced against it and identify with defendant because her sons “are approximately the age of the defendant, and she is divorced.” (Since there is no evidence that defendant was divorced, presumably it was the fact that Mrs. Duison’s sons were approximately the same age as defendant that would have prejudiced her.) Therefore, without a race-neutral explanation being offered by the State, it was error for the trial judge to conclude that the prosecutor rebutted defendant’s prima facie showing of purposeful discrimination based solely on the fact that Mrs. Duison was divorced and had children of the defendant’s age.

The third and fifth black venirepersons the State challenged were Lemont Johnson and Malaka- Moore. In regard to Mr. Johnson, the prosecutor stated that “[t]he way he sat there, the way he was waiting for his name to be called” indicated to her that he would not be a fair juror. As for Mr. Moore, who was a park district attendant, the prosecutor stated that she challenged him because she did not like his tone of voice, his attitude, or the way he answered the question about knowing police in the park.

Historically, demeanor, body language, and manner have been important factors in jury selection and constitute legitimate, racially neutral reasons for exercising peremptory challenges. (Young, 128 Ill. 2d at 20, 538 N.E.2d at 457.) However, such demeanor-based explanations “must be closely scrutinized because they are subjective and can be easily used by a prosecutor as a pretext for excluding persons on the basis of race.” (Harris, 129 Ill. 2d at 176, 544 N.E.2d at 380.) In Harris, the trial judge held that the prosecutor’s explanation that a challenged juror was “meek and sleepy” and did not answer questions in a forthright manner was a legitimate race-neutral explanation. The judge stated for the record, however, that he was aware of the problems inherent in such subjective explanations. (Harris, 129 Ill. 2d at 176, 544 N.E.2d at 380.) The Illinois Supreme Court found nothing erroneous in his ruling in light of the fact that he “closely scrutinized the State’s explanations.” Harris, 129 Ill. 2d at 176, 544 N.E.2d at 380.

In this case, the record clearly shows that the trial judge did not “closely scrutinize” the prosecutor’s explanations. In fact, several times he coached the prosecutor by explaining or developing the reasons given by the prosecutor or simply articulating a “race-neutral” reason for the prosecutor, who merely agreed. In addition, the judge’s disdain for the Batson decision was manifest. During his diatribe on “the worst decision ever handed down,” the judge alternately calls the decision “poorly written, poorly understandable, and certainly wrong” and “ludicrous and ridiculous.” The fact that a judge may have “strong feelings” against the Batson decision and inappropriately expresses them does not necessarily mean that a defendant will not get a fair hearing from him. (See Hooper, 133 Ill. 2d at 513-14, 552 N.E.2d at 702-03.) However, the trial judge’s statements in this case indicate that he believes it nearly futile to attempt to apply this “poorly understandable” decision, because “[w]hy in the world anyone will indicate in Batson that blacks are systematically excluded is beyond me.” Additionally, immediately after concluding that the State’s reasons for its challenges were not racial and having the defense put its objections into the record, the judge opined to defense counsel that

“the same argument that you make can be made by the State that you excluded white people because of their last name, because of where they lived. Generally speaking, people that live in Bridgeview or Bridgeport are white and are prejudiced against black people. So you didn’t take a chance either, and that’s why we have peremptory challenges, and that’s why I think the Batson ruling and the Batson hearings are ludicrous and ridiculous.” (Emphasis added.)

The trial judge did not undertake a “ ‘sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case.’ ” (Harris, 129 Ill. 2d at 174-75, 544 N.E.2d at 380, quoting Hall, 35 Cal. 3d at 167, 672 P.2d at 858, 197 Cal. Rptr. at 75.) He merely took the prosecutor’s explanations at face value, did not consider the relevant surrounding circumstances and made only two findings of fact: (1) that the State’s explanations for its challenges were nonracial, and (2) that Batson was a bad decision. We hold that, even under a deferential standard, the trial judge’s first conclusion must be reversed as clearly erroneous and the defendant provided with a new trial. We obviously lack, jurisdiction to address the court’s latter finding. In order that the reader be not overly critical of the trial court, it must be pointed out that jury selection in this case preceded the published opinions of every case cited by us as a basis for reversal on this issue.

Even though we reverse defendant’s conviction and remand for a new trial on the Batson issue, we will address defendant’s remaining arguments since they may recur and also in order to prevent any future assertions of double jeopardy.

II

Defendant’s second argument is that “his statements to the prosecutor should have been suppressed because after his arrest he explicitly invoked his right to counsel; hence, [his] statements were involuntary and *** obtained in violation of [his] rights under the V, VI, and XIV amendments.” The State contends that even if defendant’s state-merits were obtained in violation of Miranda, they were properly used only for impeachment purposes. Alternatively, the State maintains that defendant waived his right to counsel by initiating a conversation with an assistant State’s Attorney and, therefore, his statements were constitutionally obtained.

It must first be noted that defendant has confused the difference between a statement taken in violation of Miranda and a statement that is involuntary. The standards established in Miranda “have a separate constitutional status apart from considerations of voluntariness.” (People v. Doss (1975), 26 Ill. App. 3d 1, 14, 324 N.E.2d 210, 219.) At the pretrial hearing on defendant’s motion to suppress, defense counsel specifically acknowledged that “we are contesting a Miranda violation here, not a voluntary violation.” Additionally, the argument defendant presents in his brief is simply that he expressly invoked his right to counsel and, therefore, the statements he made to the prosecutor prior to speaking with an attorney should have been suppressed. Only in the opening sentence and the last sentence of his argument does defendant make the conclusory assertion that “since [his] statements were obtained in clear violation of his constitutional right to counsel, [they] were involuntary and totally inadmissible.” In light of the fact that defendant has confused his argument by blurring the line between a statement taken in violation of Miranda and a statement which is coerced, three questions are raised. First, whether defendant’s statement was involuntary. Second, whether defendant’s statement was taken in violation of Miranda. Third, assuming defendant’s motion to suppress should have been granted, whether admission of the statement was harmless error.

We first will address the issue of voluntariness. A trial court’s determination that a statement was voluntary should not be reversed unless it is against the manifest weight of the evidence. (People v. Fauntleroy (1991), 224 Ill. App. 3d 140, 163, 586 N.E.2d 292, 307; People v. Young (1990), 206 Ill. App. 3d 789, 806, 564 N.E.2d 1254, 1266.) A statement made freely and without compulsion is voluntary. (Young, 206 Ill. App. 3d at 805-06, 564 N.E.2d at 1266.) Additionally, it is the trial court’s province to resolve conflicts in the evidence and assess the credibility of witnesses. Fauntleroy, 224 Ill. App. 3d at 163, 586 N.E.2d at 307.

In this case, there is no evidence that defendant was coerced into giving his statements. The only argument defendant advances is that since he invoked his right to counsel, his statement was involuntary and should have been suppressed. Such a conclusory statement is clearly insufficient. The trial court expressly found that defendant’s statements were voluntary and we will not disturb that finding on review.

Additionally, after reviewing the record, it is apparent that we need not address the issue of whether defendant’s statement was taken in violation of Miranda. Even assuming defendant’s right to counsel was violated, the trial court’s failure to grant the motion to suppress was harmless error. In Harris v. New York (1971), 401 U.S. 222, 224, 28 L. Ed. 2d 1, 4, 91 S. Ct. 643, 645, the United States Supreme Court held that the prosecution is not necessarily barred from impeaching a defendant with statements which are inadmissible in the State’s case in chief. “Only where there is reason to doubt the reliability of the evidence, as in the case of the traditional involuntary confession, is the evidence inadmissible for all purposes.” (Doss, 26 Ill. App. 3d at 13-14, 324 N.E.2d at 219.) Therefore, a statement which is involuntary or coerced is inadmissible for all purposes including impeachment because such a statement does not satisfy legal standards of trustworthiness. (Harris, 401 U.S. at 224, 28 L. Ed. 2d at 4, 91 S. Ct. at 645; Doss, 26 Ill. App. 3d at 13-14, 324 N.E.2d at 219.) A statement taken in violation of Miranda, on the other hand, is barred under the exclusionary rule in order to deter police misconduct, not because it is viewed as unreliable. (Harris, 401 U.S. at 224-25, 28 L. Ed. 2d at 4, 91 S. Ct. at 645; Doss, 26 Ill. App. 3d at 13-14, 324 N.E.2d at 219.) As the Court stated in Harris (401 U.S. at 226, 28 L. Ed. 2d at 5, 91 S. Ct. at 646), “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Therefore, if defendant’s voluntary statement should have been suppressed under Miranda, it still would have been admissible as impeachment evidence.

In the instant case, the State never used the defendant’s statements in its case in chief. The statements were only used to impeach defendant’s testimony after he took the stand in his own defense. In addition, at the instruction conference, the trial judge refused Illinois Pattern Jury Instructions, Criminal, No. 3.06 — 3.07 (2d ed. 1981) (hereinafter IPI Criminal 2d), which concerns the weight the jury may give a prior statement made by a defendant when that statement is used as substantive evidence. The judge determined that the State only used defendant’s statement as impeachment evidence and instead gave IPI Criminal 2d No. 3.11 on impeachment by a prior statement. Therefore, even if defendant’s statement was suppressed, it still would have been admissible to impeach him. Consequently, assuming defendant’s statement was taken in violation of his fifth amendment right to counsel, we conclude that the trial court’s failure to grant the motion to suppress was harmless error where the State only used defendant’s voluntary statement as impeachment evidence.

Ill

Defendant’s third contention is that his conviction for armed robbery should be reversed because he was not proven guilty beyond a reasonable doubt. His argument centers on the fact that there were discrepancies between the testimony of the complainants and the statements they gave to the police at the time of the incident. Defendant points out that at trial Joyce testified that defendant took her glasses, but in her statement to police she said codefendant Williams stole them. In addition, both women testified that defendant shouted at Joyce “shut up, white bitch!” and that, as he fled, he ran up to the station attendant and threatened to come back. These details were not included in the women’s statements to the police. Based on these inconsistencies, defendant asserts that the evidence was insufficient to prove him guilty beyond a reasonable doubt.

When reviewing a judgment of conviction, an appellate court must view the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453, 472-73, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) It is not the province of the appellate court to retry a defendant and substitute its judgment for the judgment of the jury who heard the evidence and observed the witnesses. (People v. Boclair (1989), 129 Ill. 2d 458, 474-75, 544 N.E.2d 715, 722; Young, 128 Ill. 2d at 51, 538 N.E.2d at 473-74.) Therefore, a jury verdict will only be reversed on appeal if it is so improbable or unsatisfactory that it raises a reasonable doubt as to the defendant’s guilt. (Young, 128 Ill. 2d at 51, 538 N.E.2d at 474.) As a result, any discrepancies in a witness’ testimony go to its weight as evidence and “the trier of fact may believe as much or as little [of the testimony] as it pleases.” People v. Beasley (1977), 54 Ill. App. 3d 109, 114, 369 N.E.2d 260, 264.

After reviewing the record in the light most favorable to the prosecution, we cannot say that the discrepancies in the complainant’s statements made the evidence so improbable and unsatisfactory that no rational trier of fact could have concluded that the defendant was guilty of armed robbery beyond a reasonable doubt. The jury is charged with weighing the evidence and assessing the credibility of the witnesses. All three complainants identified defendant as one of the men who robbed them. Additionally, defendant admitted at trial that he was there, that he attacked Michael Babuskow, and that he threw a garbage can through the back window of Michael’s car before fleeing on foot. The jury could have rationally concluded that immediately after being robbed at gunpoint the complainants understandably failed to mention several extraneous details or that the police merely neglected to write down every detail.

IV

Defendant’s final argument is that the trial judge abused his discretion in sentencing defendant to a 20-year prison term. He maintains that such a sentence is “draconic” given defendant’s background and the circumstances of this case and asserts that the trial judge “did not give great weight to the defendant’s absence of a significant prior criminal record and his potential for rehabilitation.” Defendant also contends that since his sentence is extremely disproportionate to the seven-year sentences imposed on his codefendants, the trial judge “clearly *** penalized [him] for exercising his right to a jury trial.” The State maintains that the trial judge properly exercised his discretion in sentencing defendant within the statutory guidelines after weighing the appropriate aggravating and mitigating factors. The State further maintains that defendant was not disproportionately sentenced in comparison to his codefendants.

Sentencing a defendant is a matter of judicial discretion and, therefore, if within statutory limits, a sentence will not be disturbed on appeal unless the trial judge abused his discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883; People v. Conley (1983), 118 Ill. App. 3d 122, 133, 454 N.E.2d 1107, 1116.) The reason we review the sentence under this standard is because after seeing the evidence and viewing the defendant, the trial judge is “in a better position to determine the punishment to be imposed.” (Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) If an abuse of discretion is shown, Supreme Court Rule 615(b)(4) gives the reviewing court the power to reduce the sentence without remanding the case. (134 Ill. 2d R. 615(b)(4).) We will not substitute our judgment, however, for that of the trial court simply because we would have imposed a different punishment. Perruquet, 68 Ill. 2d at 156, 368 N.E.2d at 885.

The Illinois Constitution mandates that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11; Ill. Rev. Stat. 1991, ch. 38, par. 1001 — 1—2; People v. LaPointe (1981), 88 Ill. 2d 482, 493, 431 N.E.2d 344, 349'.) The Illinois legislature has categorized armed robbery as a Class X felony punishable by not less than six years nor more than 30 years’ imprisonment. (Ill. Rev. Stat. 1991, ch. 38, pars. 18 — 2, 1005 — 8— 1(a)(3).) In determining a sentence within these limits, the trial judge must balance the interests of society in discouraging such antisocial behavior against the rehabilitative potential of the defendant. (Perruquet, 68 Ill. 2d at 155, 368 N.E.2d at 884; People v. Mick (1980), 86 Ill. App. 3d 1022, 1029-30, 408 N.E.2d 1079, 1086.) There have been situations where courts have reduced sentences which were within the statutory limits because the punishment “greatly diverged] from the purpose and spirit of the law.” People v. Nelson (1982), 106 Ill. App. 3d 838, 846, 436 N.E.2d 655, 661; People v. Gibbs (1977), 49 Ill. App. 3d 644, 648, 364 N.E.2d 491, 493-94.

A careful review of the record clearly indicates that, although we may have imposed a different punishment, the trial judge properly considered all relevant factors offered in mitigation and aggravation and the sentence imposed, in and of itself, was not inappropriate. At defendant’s sentencing hearing, the State presented in aggravation that defendant had previously received two years probation for robbery in 1979 and three days in the House of Corrections for aggravated assault of a police officer in 1983. (The record and the State’s brief incorrectly give the date of the assault as 1973; in 1973 defendant was 12 years old.) In mitigation, defendant offered the testimony of Ted Milos, defendant’s employer, and the testimony of Linda Banks, defendant’s mother. Ted testified that defendant had worked for him at the Water Tower Car Wash for three years and was a very good, reliable, and trustworthy employee. He also testified that defendant had come out to his home several times on weekends to do some work and that upon defendant’s release he will rehire him. Mrs. Banks testified that defendant lives in a house with her, his wife and two children, Kiara and Robert, Jr., and his paralyzed sister, Jody. She testified that Jody needs constant care, has no control over her bodily functions, and must be catheterized every four hours. She stated that the family is dependent upon defendant to help care for Jody. Defense counsel requested that the court sentence defendant to eight years, but no more than 10 years.

The trial judge stated that six years would be an appropriate sentence if this were defendant’s first offense. However, in view of defendant’s criminal record and the facts of the case, the judge stated that “there is not enough time under the new law to give to this gentleman.” He concluded that the nature of the offense indicated to him that “the only way in which to rehabilitate this young man is to house him for a very long time.” Therefore, he determined that 30 years was an appropriate sentence. The judge then recognized the hardship that incarceration would have on the defendant’s family, but also noted the pain caused to the victims of defendant’s crime. Finally, considering the mitigating evidence of defendant’s home and work life and his statement to the court that he was sorry for what he had done, the judge sentenced defendant to 20 years’ incarceration. The judge urged defendant to take advantage of the facilities available in the penitentiary and to contemplate what he would do when he was released. The trial record clearly indicates that the judge thoughtfully considered the aggravating and mitigating evidence and fashioned a sentence which, in his valid discretion, struck a balance between the interests of society and the desire to rehabilitate the defendant.

In addition, defendant argues that the “shocking disparity” between his 20-year sentence and the seven-year sentences imposed upon his codefendants who all pleaded guilty “indicates quite clearly that [he] was penalized for exercising his right to a jury trial.” This argument is meritless. It is of course improper for a trial judge to impose a more severe sentence than he normally would have simply because defendant exercised his constitutional right to a jury trial. (People v. Martin (1970), 47 Ill. 2d 331, 339, 265 N.E.2d 685, 689; People v. Hoffman (1974), 25 Ill. App. 3d 261, 265, 322 N.E.2d 865, 869.) However, the “mere fact” that a defendant convicted by a jury received a greater sentence than a codefendant who pleaded guilty “does not justify the conclusion that the greater sentence was imposed because of the election to stand trial.” (Hoffman, 25 Ill. App. 3d at 266, 322 N.E.2d at 869.) Yet the “mere fact” that he received a much greater sentence than his codefendants is all the evidence the defendant offers. Clearly, the record itself does not support this bold assertion. Most importantly, however, the fact that defendant was tried and sentenced before any of his codefendants had even pleaded guilty completely destroys the precarious foundation upon which this argument already teetered.

As stated above, there is no evidence defendant was charged a “jury tax” or that the trial judge abused his discretion in sentencing defendant to 20 years’ incarceration. We conclude that the sentence is still improper, however, in light of the sentences ultimately given to his codefendants. The defendant did not expressly make the argument that he was denied the equal protection of the law, but he touched upon it by comparing his sentence to those of his codefendants. “ ‘Fundamental fairness and respect for the law require that defendants similarly situated may not receive grossly disparate sentences.’ ” (People v. Kline (1981), 99 Ill. App. 3d 540, 553, 425 N.E.2d 562, 572, aff’d in part & rev’d in part (1982), 92 Ill. 2d 490, 442 N.E.2d 154, quoting People v. Henne (1973), 10 Ill. App. 3d 179, 180, 293 N.E.2d 172, 174.) However, the mere fact of a disparity between a sentence given to a defendant convicted in a jury trial and another imposed upon a defendant who pleaded guilty, without more, does not mandate a reduction in the greater sentence. (Martin, 47 Ill. 2d at 339, 265 N.E.2d at 689; People v. Mick (1980), 86 Ill. App. 3d 1022, 1028, 408 N.E.2d 1079, 1085.) A disparate sentence imposed upon a codefendant is only justified by “ ‘a more serious criminal record [citation] or greater participation in the offense [citation].’ ” (Kline, 99 Ill. App. 3d at 553, 425 N.E.2d at 572, quoting People v. Martin (1980), 81 Ill. App. 3d 238, 245, 401 N.E.2d 13, 18; see People v. Kline (1982), 92 Ill. 2d 490, 508, 442 N.E.2d 154, 163.) It must also be noted that it has been held in Illinois that a plea of guilty is a relevant mitigating factor. (People v. Compton (1990), 193 Ill. App. 3d 896, 902, 550 N.E.2d 640, 644.) In addition, the fact that a defendant was sentenced prior to his codefendants and by a different judge does not preclude him from challenging his sentence under these “disparate sentencing” principles. Kline, 99 Ill. App. 3d at 554, 425 N.E.2d at 572.

In the instant case, four persons robbed Joyce, Diane, and Michael. According to the victims, all four men equally participated in the beating of Michael.

As previously stated, after a jury trial defendant was sentenced to 20 years in the Illinois Department of Corrections. He was sentenced on June 28, 1988, by Judge Ronald Himel. The evidence introduced in aggravation and mitigation is clearly set out above.

Codefendants O’Neal Johnson, Gene Jones and Frank Williams pleaded guilty and each was sentenced to seven years in the Illinois Department of Corrections on January 12, 1989, by Judge William Kibbler. The evidence set out in aggravation and mitigation is set out below.

Defendant O’Neal Johnson had received two years’ felony probation for burglary in May 1982, three years’ incarceration in the Department of Corrections for possession of burglary tools in October 1982, a conviction for theft in 1985, and a conviction for burglary in 1989. In mitigation, counsel stated that defendant Johnson was 26 years old, had a fiancee and one child and was present in court on each and every court date with his mother.

Defendant Gene Jones had a misdemeanor conviction for theft in March 1982, had received two years probation for burglary in 1982, had received seven months’ incarceration in the Cook County jail for theft in 1984, and, at the time of sentencing in the instant case, was serving four years on a burglary charge. In mitigation, counsel stated that defendant Jones was an “admirable young man *** [who] regrets what happened.”

Defendant Frank Williams apparently had no criminal record or, at least as it was expressed to the trial judge, “the least background of the gentlemen standing in front of you.”

The trial judge then accepted the recommendation of the State and sentenced each defendant to seven years in the Illinois Department of Corrections.

Clearly, defendant received a disparate sentence which is not justified under the factors set out above. First, his criminal record was not as extensive as that of either codefendant Jones or codefendant Johnson. Additionally, the evidence introduced in mitigation was much more detailed and illustrated greater rehabilitative potential than that introduced on behalf of Jones, Williams, or Johnson. It is absolutely acceptable for a defendant who pleads guilty and saves the State the expense of proving his culpability to be sentenced to a lighter sentence than he may otherwise have received if he had proceeded to trial. However, a disparity of the degree in this case where the defendants all equally participated in the crime and where their criminal records were substantially similar is “fundamentally unfair.” Therefore, we conclude that a sentence of 20 years’ incarceration was excessive in view of the sentences given to his codefendants.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES LYNCH, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—0405
    Opinion filed January 26, 1993.

      Michael J. Pelletier and Anne E. Meyer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret Regan, and Caren J. Armbrust, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Following a stipulated bench trial in the circuit court of Cook County, defendant James Lynch was convicted of cannabis trafficking and possession of cannabis with intent to deliver. Two concurrent six-year terms of imprisonment and a $1,000 fine were imposed. On appeal, defendant contends that: (1) the trial court erred in denying his motion to suppress; (2) he was not proven guilty of cannabis trafficking beyond a reasonable doubt; and (3) his conviction for possession with intent to deliver must be vacated because it is a lesser-included offense of the trafficking conviction.

At the hearing pursuant to defendant’s motion to suppress, Detective Richard Crowley of the Chicago police department and United States Drug Enforcement Administration (DEA) testified that he was assigned to the Amtrak terminal at Union Station on December 11, 1989, in order to intercept passengers involved in drug trafficking. He was interested in train 22, which originated in Los Angeles, California, and stopped in San Antonio, Texas, before arriving in Chicago and then was scheduled to travel to Buffalo, New York. According to Detective Crowley, Los Angeles and San Antonio are documented as “source cities” for controlled substances and marijuana. Prior to the arrival of the train, Detective Crowley received information from Dennis Kroll, an Amtrak detective, that an individual had purchased a one-way cash ticket in the name of Bob Clark for travel from San Antonio to Buffalo, New York. In addition, the purchaser had given an invalid call-back number when obtaining the ticket.

Detective Crowley observed defendant as he exited one of the last cars. Defendant was carrying two large padlocked suitcases which appeared heavy. As defendant placed the luggage on a cart, he looked over his shoulder. While walking the remaining 100 yards through the train terminal, he looked over his shoulder about three times. Crowley continued to observe defendant for about five minutes while defendant positioned himself in a well-lit public area, close to monitors providing departure information.

Detective Crowley, accompanied by Sergeant Thomas Martin, approached defendant, identified himself and asked if he could speak with defendant. Defendant agreed and Crowley informed defendant that he was not under arrest and did not have to speak to the police. In response to Crowley’s questions, defendant identified himself, and stated that he had just arrived from San Antonio, Texas, and was waiting to board a train to Buffalo, New York. Upon request, defendant produced a California driver’s license with the address penciled out. When Crowley requested defendant’s train ticket, defendant responded that he could not recall what he had done with it. Crowley reminded defendant that he would need the ticket to proceed to New York, and defendant then produced a ticket. The ticket represented a one-way fare from San Antonio, Texas, to Buffalo, New York, issued to Bob Clark. Defendant explained that his friend Bob Clark had purchased the ticket in San Antonio. Defendant stated that he did not know Clark’s address or telephone number.

Detective Crowley informed defendant that he was conducting narcotics investigations at train stations and asked if defendant was transporting controlled substances. Defendant responded that he was not and further denied the officers permission to search his luggage. Further, defendant stated that the three pieces of luggage were his. Crowley told defendant that his luggage would be detained for a canine sniff test. In addition, Crowley explained that the luggage would be transported to the DEA office on the second floor of the train station because the dog was trained to attack and could not be released around the public. The dog was a certified narcotics canine, and it gave a positive reaction to two of defendant’s suitcases indicating the presence of contraband. Crowley then informed defendant that the suitcases would be held while a search warrant was obtained, and defendant was given a receipt for the suitcases which were detained. Although Detective Crowley initially testified that only the two bags to which the canine had a positive reaction were held, he admitted that all three bags were detained after he was shown a copy of the receipt given defendant for his luggage. After a warrant was obtained, the suitcases were opened and two were found to contain marijuana.

Officer Dennis Kroll testified that he is a criminal investigator with the Amtrak police. As part of his job responsibilities, he reviews passenger manifests for possible drug couriers. Kroll stated that he looks for passengers travelling one way from “source cities,” paying cash for the fare and making reservations within two days of departure. In addition, he checks the telephone numbers provided by passengers when reservations are made. Kroll testified that on December 11, 1989, he reviewed the passenger manifests for train 22 and was suspicious about a passenger named Bob Clark. A one-way ticket had been purchased for $229 in cash and the reservation was made two days prior to departure. Kroll telephoned the call-back number, and the person who answered advised him that there was no Bob Clark at that number.

Defendant testified that he was stopped by the police after he exited his train and entered the main waiting area at Union Station. According to defendant, he did not consent to this detention. The officers questioned him for about 10 minutes and asked to search his luggage. After defendant denied permission, the officers took his luggage to another location in the station.

Defendant further testified that a friend purchased the ticket with cash and the name on the ticket was Bob Clark. The officers did not touch him or display their weapons. According to defendant, the officers kept his driver’s license and took it upstairs with the luggage. In addition, defendant testified that he produced his ticket upon request. The officers surrounded defendant when they went upstairs, but did not touch him. Defendant testified that he went upstairs because he was told that he could watch the sniff test. When they arrived upstairs, defendant was searched and then was denied permission to watch the test. Finally, defendant admitted that he was found guilty of false statement on May 14,1987, in a New York Federal court.

Defendant maintains that the trial court erred in denying his motion to suppress. We disagree.

On a motion to suppress evidence, the burden is on the defendant to demonstrate that the particular intrusion was illegal. (People v. Brink (1988), 174 Ill. App. 3d 804, 529 N.E.2d 1.) Further, the trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous. People v. Conner (1979), 78 Ill. 2d 525, 401 N.E.2d 513.

In the instant case, there are two intrusions which must be evaluated — the initial stop of defendant and the detention of his luggage for submission to a sniff test. We will first address the initial approach by the officers.

A police officer may, without effecting a seizure in violation of the fourth amendment, approach an individual, request consent to ask a few questions, and ask if the individual will provide identification. (California v. Hodari D. (1991), 499 U.S 621, 113 L. Ed. 2d 690, Ill S. Ct. 1547.) A person is “seized” for purposes of the fourth amendment only when his freedom of movement is restrained by physical force or show of authority such that a reasonable person would believe that he was not free to leave. Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319; People v. Hicks (1989), 183 Ill. App. 3d 636, 539 N.E.2d 756.

In the instant case, the testimony of the officers, which the trial court found credible, established that Detective Crowley approached defendant in a well-lit public area, identified himself and requested the opportunity to ask a few questions. Defendant was further informed that he was not under arrest. We believe that under these circumstances a reasonable person would believe that he was free to leave.

Turning our attention to the detention of defendant’s luggage, we note that the temporary detention of luggage for submission to a sniff test by trained drug-detection dogs is not a “search” within the meaning of the fourth amendment. (United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637.) However, this type of detention must be supported by a reasonable and articulable suspicion based on objective facts that the luggage contains contraband. (Place, 462 U.S. at 706, 77 L. Ed. 2d at 120, 103 S. Ct. at 2644.) The issue presented is whether the trial court’s determination that the detention of defendant’s luggage was supported by a reasonable and articulable suspicion is manifestly erroneous.

In the instant case, the State argued that the following factors provided a reasonable and articulable suspicion that defendant’s luggage contained contraband. Defendant had a one-way ticket from San Antonio, a source city, to Buffalo, New York, with a stop in Chicago. The ticket was purchased for $229 in cash two days prior to departure and issued in the name of Bob Clark. A telephone call placed to the call-back number provided by the purchaser revealed that no one named Bob Clark was at that number. When the train arrived at Union Station, defendant exited the second to last car and was one of the last people to leave the train. He was carrying two large, padlocked suitcases which appeared heavy, as well as a small black bag, and he looked over his shoulder about three times. After defendant was approached by the detectives, he provided a driver’s license issued to James Lynch. He initially stated that he could not find the ticket. When he subsequently produced a train ticket issued to Bob Clark, defendant explained that the ticket was purchased by Bob Clark, but defendant provided no additional information concerning this individual.

In determining whether a reasonable and articulable suspicion existed, we must examine the totality of evidence. (United States v. Sokolow (1989), 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581.) Analysis of the totality of the factors in the instant case reveals that the decision of the trial court was not manifestly erroneous because these facts provided a reasonable and articulable basis.

Defendant cites People v. Boyd (1991), 215 Ill. App. 3d 894, 576 N.E.2d 116, People v. Sherman (1989), 190 Ill. App. 3d 814, 547 N.E.2d 476, and People v. Nelson (1989), 188 Ill. App. 3d 619, 544 N.E.2d 1111, and to support his assertion that his motion was erroneously denied. However, Sherman and Nelson present situations in which the trial court granted the defendants’ motions. We again note that the standard of review is whether the determination of the trial court is manifestly erroneous. Further, the cases are factually distinguishable. In Sherman there was no testimony that the defendant acted suspiciously or in a manner that led the officers to believe he was carrying narcotics. In the instant case, defendant looked over his shoulder at least four times, did not initially give the officers his ticket and did not provide any information concerning Bob Clark, the individual with whom defendant stated that he stayed in Texas and who bought the ticket. In Nelson the ticket was purchased in the defendant’s name. Boyd presented a situation where the trial court’s order denying defendant’s motion was reversed on appeal where defendant travelled in a sleeper compartment under his own name with a ticket purchased for cash, and exhibited nervousness. We find the cited cases do not demonstrate that the determination of the court was manifestly erroneous and thus subject to reversal.

Defendant further asserts that he was not proven guilty of cannabis trafficking beyond a reasonable doubt because the evidence was insufficient to demonstrate that he brought the cannabis into lilinois. The State asserts that defendant waived this issue by failing to object at trial and raise it in a post-trial motion.

Initially, we note that the issue of whether a defendant was proven guilty beyond a reasonable doubt is not subject to waiver and can be raised on review despite failure to preserve this issue. Further, the applicable standard is whether, when the evidence is viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.

The applicable statute provides, in pertinent part:

“[a]ny person who knowingly brings or causes to be brought into this State for the purpose of manufacture or delivery or with the intent to manufacture or deliver 2,500 grams or more of cannabis in this State or any other state or country is guilty of cannabis trafficking.” (Ill. Rev. Stat. 1989, ch. 56V2, par. 705.1(a).)

According to defendant, the evidence did not demonstrate that he brought the requisite amount of cannabis into Illinois because a rational trier of fact could have found that he obtained the cannabis in Illinois. We disagree.

The State has the burden of establishing each element of the offense beyond a reasonable doubt. However, this burden does not require that the State demonstrate every link in the chain; rather, the court can rely upon the reasonable inferences which arise from circumstantial evidence. In the instant case, defendant boarded the train in San Antonio, Texas. When he exited the train in Chicago, he was carrying two padlocked bags later found to contain cannabis. Detective Crowley testified that defendant admitted that the bags belonged to him. Further, the stipulated evidence identified the luggage as belonging to defendant. We find this evidence sufficient to support a finding by a rational trier of fact that defendant had the luggage and its contents when he boarded the train.

As his final argument on appeal, defendant asserts that his conviction for possession of cannabis with intent to deliver must be vacated because it was based on the same act as that which supported his conviction for cannabis trafficking.

Our analysis of the two statutes at issue reveals that section 5 of the Cannabis Control Act (Act) is a lesser-included offense of section 5.1. (Ill. Rev. Stat. 1987, ch. 56V2, pars. 705, 705.1.) An included offense is defined as an offense which is demonstrated by “proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 9.) Section 5 of the Act provides that “[i]t is unlawful for any person knowingly to *** possess with intent to deliver *** cannabis.” (Ill. Rev. Stat. 1989, ch. 56V2, par. 705.) Thus, the statutory definition of cannabis trafficking requires proof of all the elements of the offense of possession of cannabis with the intent to deliver with the additional element of bringing 2,500 grams or more into the State. Based upon our review of the statutory definition of the offenses and the offenses charged (People v. Le Pretre (1990), 196 Ill. App. 3d 111, 552 N.E.2d 1319), we find that possession of cannabis with intent to deliver is a lesser-included offense, and multiple convictions were improper. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

Accordingly, defendant’s conviction for possession of cannabis with intent to deliver and the associated six-year sentence are vacated. Defendant’s conviction for cannabis trafficking as well as the six-year sentence and $1,000 fine are affirmed.

Affirmed in part; vacated in part.

McCORMICK, P.J., and DiVITO, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY BERRY, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—2922
    Opinion filed January 28,1993.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald and Penelope Gainer, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant Terry Berry was convicted of aggravated criminal sexual assault and attempted robbery. He was sentenced to concurrent prison terms of 60 years for aggravated criminal sexual assault and five years for attempted robbery, to be served concurrently with a 60-year sentence from another case. The defendant contends on appeal that his motion for a substitution of judges was erroneously denied and that he was denied a fair trial based on the prosecutor’s introduction of “non-identification testimony,” i.e., evidence that the victim failed to identify a suspect other than the defendant, as well as by improper comments made by the prosecutor during closing arguments. The defendant further contends that his conviction for attempted robbery should be vacated and that the cause should be remanded for resentencing because the court relied upon a one-year-old presentence investigation report which had been prepared in connection with a different case.

The charges in the instant cause stemmed from an attack upon the complainant, L.D., on August 11, 1986. The defendant requested a jury trial, and the cause was assigned to Judge Suria. Prior to trial, the defendant moved for a substitution of judges, alleging that Judge Suria was prejudiced against him because he had presided over a prior jury trial in which the defendant was convicted of committing an aggravated criminal sexual assault upon another complainant, A.M. The motion stated that during the previous trial Judge Suria had heard the testimony of L.D., the complainant in the case at bar, which was offered as evidence of modus operandi. The motion further stated that Judge Suria sentenced the defendant to a 60-year prison term in the prior case and encouraged the State and the defense to dispose of the present case prior to trial because he did not wish to see L.D. be required to repeat her “traumatic” testimony.

A hearing on the motion was held before Judge Neville. At the hearing, defense counsel represented to the court that when Judge Suria was asked if he was prejudiced against the defendant, he responded only that “he had an idea how the jury might rule.” Judge Neville ruled that the defendant did not sustain his burden of proving prejudice. He denied the motion without prejudice, stating that it could be renewed if the defendant decided to request a bench trial.

At trial, L.D. testified that she was walking to a friend’s house at approximately 12 a.m. on August 11, 1986, when the defendant approached her and began asking for directions. L.D. attempted to back away from him, but he grabbed her and announced a robbery. She emptied her purse as directed, after which the defendant demanded sex. He dragged L.D. into a gangway and forced her to perform acts of oral and vaginal intercourse. L.D. testified that the area where the defendant first approached her was well lighted and that she was able to see his face. The incident lasted between 30 and 45 minutes. When it was over, L.D. ran to her friend’s house and called the police. L.D. described her attacker to the police who responded as being 5 feet 8 to 5 feet 10 inches tall, weighing 175 to 180 pounds with a Gheri Curl hair style. She also described what he was wearing. After broadcasting the description, the police were informed about a possible suspect and took L.D. to view the suspect. Without objection from the defendant, L.D. testified that she did not identify the suspect as her attacker. A few days after the incident, L.D. recalled that her attacker had a mustache. She called the police and gave them this additional information.

A.M., the complainant in the defendant’s previous trial, testified that just after midnight on July 24, 1986, she was robbed and sexually assaulted by the defendant. Her testimony was admitted as evidence of modus operandi.

On December 18, 1986, L.D., A.M. and a third woman were taken to the police station to view a lineup. L.D. and A.M. both identified the defendant as the man who attacked them; the third woman was unable to make an identification.

Officer Lundin testified that she responded to the call in the instant cause and that she had also made a police report regarding the earlier attack on A.M. In response to the prosecutor’s questions, Lundin explained the procedures that occur during the shift change between the first watch, which begins at 11 p.m., and the third watch, which ends at midnight.

The defendant presented an alibi defense through the testimony of his brother and two sisters. They testified that one of the sisters was moving from one town to another in Missouri and that several family members, including the defendant, were present to help her move. The witnesses testified that the defendant did not return to Chicago until approximately 3 a.m. on August 11, 1986.

The facts underlying the defendant’s claims of improprieties in closing argument and sentencing will be detailed later in connection with our discussion of those issues.

The defendant first contends that the denial of his motion for a substitution of judges constituted error. He contends on appeal that Judge Suria’s statement that he had an idea how the jury might rule established that he had prejudged the case and was no longer impartial.

In order to warrant a substitution of judges, the defendant bears the burden of proving that the judge assigned to his case harbors actual prejudice. (People v. Nickols (1976), 41 Ill. App. 3d 974, 979, 354 N.E.2d 474.) To sustain this burden, the defendant must show more than the fact that the judge convicted the defendant in a previous case. (People v. Vance (1979), 76 Ill. 2d 171, 178, 390 N.E.2d 867.) In Vance, the supreme court stated that disqualifying a judge because of prejudice is not a judgment to be lightly made. Rather, the court stated that “ ‘something more’ — a showing of animosity, hostility, ill will, or distrust towards this defendant” must be made in order to conclude that the judge harbored actual prejudice which would interfere with a fair determination of the defendant’s guilt or innocence. Vance, 76 Ill. 2d at 181, 390 N.E.2d at 872.

In the case at bar, Judge Suria presided over an earlier jury trial in which the defendant was convicted of sexually assaulting A.M. The complainant in this cause, L.D., testified concerning the attack on her as a means of establishing the defendant’s modus operandi. When asked by defense counsel in this cause whether or not he was prejudiced against the defendant, Judge Suria’s only response was that he had an idea of how the jury might rule. The defendant interprets this response as an indication that Judge Suria had already determined that the defendant would be convicted and that he could accordingly no longer be impartial.

We disagree with the defendant’s conclusion. Unlike the situation in People v. Robinson (1974), 18 Ill. App. 3d 804, 310 N.E.2d 652, cited by the defendant, the trial judge here did not express a personal opinion prior to trial that the defendant was in fact guilty. He merely indicated, after having heard L.D.’s testimony in the previous trial, that he had an idea of how a subsequent jury might rule. We do not believe that this establishes actual prejudice toward the defendant which would interfere with a fair determination of his guilt or innocence.

The defendant next contends that he was denied a fair trial as a result of the victim’s testimony that she viewed a suspect at the scene and failed to identify him as the offender. In People v. Jones (1991), 219 Ill. App. 3d 795, 579 N.E.2d 970, rev’d (1992), 153 Ill. 2d 155, the court found this type of nonidentification evidence irrelevant and therefore inadmissible. On appeal, the supreme court agreed that the admission of such evidence was error, but held that it was harmless in the context of that case. People v. Jones (1992), 153 Ill. 2d 155.

Here, the defendant failed to object to the admission of the testimony in question either at trial or in his post-trial motion. We accordingly conclude that the matter is waived for purposes of this appeal. (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.) Moreover, even if we were to relax the waiver rule and consider this issue, we do not believe that reversal would be warranted in the case at bar. The testimony of L.D. was clear, convincing and unhesitating. She was able to view the defendant for a considerable length of time under conditions permitting a positive identification to be made. In our opinion, the nonidentification testimony neither constituted a material factor in the jury’s verdict nor served to deprive the defendant of a fair trial.

The defendant next contends that several remarks made by the prosecutor during closing arguments were improper and denied him a fair trial. The defendant cites as error five comments made by the prosecutor. First, the prosecutor argued that the defendant was clever because he committed the crime during a shift change when the number of police on the streets was cut in half. The defendant maintains that the comment was not a fair inference from the evidence. Second, the prosecutor stated that certain forensic tests could not be performed because the defendant evaded the police for over four months. The defendant argues that this comment was improper because it was not shown that the police were unable to preserve the evidence and because there was no evidence that the defendant was consciously avoiding arrest. Third, after summarizing the facts elicited to prove modus operandi, the prosecutor stated that “[tjhis doesn’t happen in every case.” According to the defendant, this comment improperly invaded the province of the jury. Fourth, the prosecutor remarked that L.D. and A.M. suffered nightmares. The defendant claims that this comment was not based on the evidence and was calculated to inflame the passions of the jury. Fifth, the prosecutor commented on the failure of the defendant’s relatives to inform the police of the defendant’s alibi in order to have the defendant released from jail. The defendant argues that this argument was unfair because the prosecutor knew that the defendant was in custody for two other serious felonies and had no chance of being released. The defendant failed to object to any of these comments at trial.

The general rule is that an assignment of error will not be considered on appeal unless an objection was made at trial, thus allowing the trial court an opportunity to prevent or correct the error. (People v. Hollins (1985), 136 Ill. App. 3d 1, 9, 482 N.E.2d 1053.) “A defendant cannot ordinarily allow an improper argument to be made without objection and then assign it as error in a reviewing court in order to obtain a second trial when the error might have been prevented or corrected at the first trial.” (Hollins, 136 Ill. App. 3d at 9, 482 N.E.2d at 1058.) The only exception to the waiver rule exists where the improprieties were so grave as to constitute plain error which had the effect of depriving the defendant of a fair trial. Hollins, 136 Ill. App. 3d 1, 482 N.E.2d 1053.

In our view, the alleged errors, considered either individually or cumulatively, do not rise to the level of plain error. Accordingly, the waiver rule operates to preclude our review of this issue.

The defendant next contends that his conviction for attempted robbery must be vacated and the cause remanded for re-sentencing on the aggravated criminal sexual assault conviction. The defendant argues that the attempted robbery was the aggravating factor that enhanced the crime of criminal sexual assault to aggravated criminal sexual assault. The State concedes that the attempted robbery conviction must be vacated, but argues that the defendant is not entitled to a new sentencing hearing.

A remand for resentencing is not required on the^conviction which is affirmed when a separate sentence has been imposed for each offense. (People v. Geneva (1990), 196 Ill. App. 3d 1017, 1029, 554 N.E.2d 556.) Where there is no indication from the record that a vacated conviction had any bearing on the sentence for the affirmed conviction, it is not necessary to remand the cause for resentencing. People v. Einstein (1982), 106 Ill. App. 3d 526, 535, 435 N.E.2d 1257.

In the case at bar, the trial court imposed separate, concurrent sentences for attempted robbery and aggravated criminal sexual assault. There is no indication in the record that the attempted robbery conviction in any way influenced the sentence for aggravated criminal sexual assault. We therefore conclude that it is not necessary to remand the cause for resentencing on this basis.

The defendant then offers another reason to support his contention that the cause should be remanded for resentencing. The defendant argues that the 60-year extended-term sentence in the instant cause is identical to the sentence imposed as a result of his conviction in People v. Berry (1991), 244 Ill. App. 3d 14. He maintains that because the evidence in the earlier case showed more egregious conduct, the court abused its discretion in imposing the same sentence in the case at bar.

There is nothing in the record to support the defendant’s assertion that the sentence in this cause was based on the court’s “mistaken impression” that the defendant’s offense against L.D. was virtually the same as the earlier offense he committed upon A.M. The record shows that the court imposed the maximum extended-term sentence based on the defendant’s criminal record and on the court’s finding that he posed a danger to society. We find no abuse of discretion.

The defendant’s final contention is that he is entitled to a new sentencing hearing because the court relied upon a one-year-old presentence investigation report which was prepared for the sentencing hearing in connection with his prior conviction for aggravated criminal sexual assault.

Section -5 — 3—1 of the Unified Code of Corrections provides that “[a] defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—1.) This statutory requirement cannot be waived by either party. People v. Youngbey (1980), 82 Ill. 2d 556, 564, 413 N.E.2d 416.

The record shows that the court had before it the written presentence investigation report prepared approximately one year earlier in connection with the defendant’s prior conviction for aggravated criminal sexual assault. The defendant was in continuous custody since that time, and defense counsel expressly stated that there was no new information to be added to the report. Under these circumstances, we do not believe that the court erred in failing to order that a new report be prepared specifically in conjunction with this case. People v. Torres (1986), 146 Ill. App. 3d 250, 255, 496 N.E.2d 1060.

Accordingly, the defendant’s conviction and sentence for aggravated criminal sexual assault are affirmed; the conviction and sentence for attempted robbery are vacated.

Affirmed in part; vacated in part.

JOHNSON and CAHILL, JJ., concur.


author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGELO PAVONE, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—2061
    Opinion filed January 29, 1993.

      M. Jeffrey Bergschneider, of Kansas City, Missouri, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Following a bench trial, defendant Angelo Pavone was found guilty of possession of a controlled substance with intent to deliver 14.03 grams of cocaine. Defendant was subsequently sentenced to 48 months’ probation and two years of drug treatment, and was fined $5,000. Defendant contends on appeal that: (1) he was not proven guilty beyond a reasonable doubt of possession with intent to deliver; (2) the trial court erred when it ruled that defendant was not entitled to a Franks hearing; and (3) the defendant is entitled to a credit on his fine for the 87 days he was in custody prior to sentencing.

Detective Fachini stated in the complaint for search warrant that a confidential informant provided him with the information that on August 1, 1989, the informant purchased drugs from a white male known as Angelo, who manages Midwest Transmission. The informant described Angelo as approximately 35 years old, 5 feet 8 inches tall, 160 pounds with black hair and brown eyes. The search warrant was executed on August 1, 1989, for the premises at 3008 North California Avenue, known as Midwest Transmission. When the officers entered the transmission shop, they encountered defendant Angelo Pavone. Defendant informed them that he owned the shop.

The officers searched the premises and recovered a .357 revolver from defendant’s desk. Because of the vast size of the premises and the number of boxes throughout the shop, the detectives called in a canine unit. Soon thereafter, the police dog started barking at a canvas bag which was hidden behind a desk. The bag contained white powder, another clear plastic bag which contained 10 smaller bags containing white powder, and 28 tin foil packets also containing white powder. In addition, the detectives testified that they found a bottle of lactose, a sifter and several squares of tin foil.

Defendant testified that his ordinary business hours are 10 a.m. to 6 p.m. However, on August 1, 1989, he did not open his shop until almost 2 p.m. because he had to go to a currency exchange to pay a phone bill so that his business telephone could be reconnected. Defendant testified that the first time he saw the canvas bag was when the detective carried it out of his shop and the first time he saw the cocaine, lactose and sifter was when the items were introduced in evidence during his trial. Defendant admitted that on August 1, 1989, he had one gram of cocaine in a shoe located in the bathroom of the transmission shop, but it was never recovered by the detectives. Defendant claimed that the cocaine was for his own personal use. A stipulation was entered that defendant would testify that on August 1, 1989, he was wearing a beeper.

Defendant’s first contention is that the State failed to prove him guilty beyond a reasonable doubt since there was a possibility that the lactose cutting agent found in the bag recovered from defendant’s shop was added to the cocaine sometime after the bag’s discovery. Defendant points out that the trial court was troubled by Officer Moore’s testimony that when he opened the canvas bag, he saw the contraband, but not the large lactose bottle. In fact, the trial court stated:

“I have serious doubt as to the quantity. I believe there is a very real position that this lactose may have been added to cocaine after its discovery. I find beyond a reasonable doubt that the defendant possessed a quantity of cocaine with the intent to deliver it. I have calculated the quantity and find that defendant is guilty of possessing 3.05 percent of 408.61 grams. That is the unquestioned amount of 14.03 grams of cocaine.”

The trial court therefore found defendant guilty of possession of “any other amount” of cocaine with intent to deliver. (Ill. Rev. Stat. 1987, ch. 56^2, par. 1401(c).) The trial court’s conclusion was based on chemist Fulcher’s testimony that the substance seized from defendant’s office weighed 408.61 grams, the larger bulk of white powder containing 4.2% pure cocaine and the white powder found in the tin foil packets containing 3.5% pure cocaine.

If an item cannot be readily identified or is susceptible to alteration by tampering or contamination, its chain of custody must render it improbable that the item has been contaminated, exchanged or subject to tampering. (People v. Hominick (1988), 177 Ill. App. 3d 18, 531 N.E.2d 1049.) In establishing the chain of custody, the State is not required to exclude all possibility of tampering; it is sufficient to demonstrate that the exhibit has not been changed in any important respect and that it took reasonable protective measures since the substance was seized. (People v. Pettis (1989), 184 Ill. App. 3d 743, 540 N.E.2d 1097.) Unless defendant provides actual evidence of tampering or substitution, the State need only establish a stated probability that tampering or substitution did not occur, and any deficiencies go to the weight and not the admissibility of evidence. People v. Holman (1987), 157 Ill. App. 3d 764, 510 N.E.2d 1139.

Although Officer Moore testified that he did not see the lactose when he opened the canvas bag, defendant has not provided us with actual proof of tampering or substitution. Instead, we are confronted with the evidence that the police dog made a positive identification indicating that drugs were contained in the canvas bag seized from defendant’s office, and there is no evidence of a break in the chain of custody. Furthermore, the trial court noted that it found the State’s witnesses more credible than defendant or defense witnesses. (See People v. Leemon (1977), 66 Ill. 2d 170, 361 N.E.2d 573 (whether the drugs received into evidence were the drugs seized from the defendant is a question of the credibility of the witnesses and best left to the trier of fact).) Accordingly, the trial court could rationally have found defendant guilty beyond a reasonable doubt of possessing 14.03 grams of cocaine with intent to deliver.

Defendant’s next contention is that his conviction for possession of a controlled substance with intent to deliver should be reduced to possession because there was insufficient evidence of an intent to deliver. Intent to deliver is necessarily proved by circumstantial evidence. (People v. Cruz (1984), 129 Ill. App. 3d 278, 472 N.E.2d 175.) A reasonable inference of intent to deliver is drawn from whether the amount of contraband is in excess of any amount that could be viewed as used for personal use. (People v. Berry (1990), 198 Ill. App. 3d 24, 555 N.E.2d 434.) Factors that also support an inference that narcotics were possessed with intent to deliver include the possession of a combination of drugs, the discovery of a large amount of cash, the manner in which the drugs were kept, the presence of paraphernalia used in the sale of drugs, and the existence of weapons. People v. Rouser (1990), 199 Ill. App. 3d 1062, 557 N.E.2d 928.

In the case at bar, a canvas bag was seized from defendant’s office which contained a clear plastic bag holding white powder, 10 smaller clear plastic bags each filled with white powder and 28 individual tin foil packets also filled with white powder. The police officers also testified that they found a sifter instrument and several pieces of tin foil cut into small squares. Defendant kept a .357 revolver in his desk drawer. Based on this evidence, a rational trier of fact could have found beyond a reasonable doubt that defendant intended to deliver cocaine.

Defendant next maintains that the trial court erred in denying his motion for a Franks hearing. In limited circumstances, a defendant may be entitled to an evidentiary hearing to challenge the veracity of statements made by the police to obtain a search warrant. (Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.) A defendant is entitled to an evidentiary hearing when he makes a substantial preliminary showing that a false statement knowingly and intelligently, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit and the allegedly false statement is necessary to the finding of probable cause. (Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676.) The court must make its determination of whether a substantial showing has been met by balancing the statements in the warrant affidavit against those in support of defendant’s challenge to the warrant. (People v. Lucente (1987), 116 Ill. 2d 133, 506 N.E.2d 1269.) The trial court’s decision is unavoidably subjective and will not be disturbed on review absent an abuse of discretion. Lucente, 116 Ill. 2d 133, 506 N.E.2d 1269.

Here, attached to defendant’s Franks motion was an affidavit from defendant stating that he awoke at 1 p.m. on August 1, 1989, arrived at his place of business at approximately 1:30 p.m. and discovered that his telephone had been disconnected. He went to the New Diversey-California Currency Exchange to pay his phone bill and returned to work. An affidavit from defendant’s wife corroborates the time defendant left the house. An affidavit from Albert Green, owner of the currency exchange, stated that defendant was at the currency exchange on the afternoon of August 1, 1989, and paid an overdue bill. Based on these affidavits, we do not find the trial court’s decision denying defendant a Franks hearing to be an abuse of discretion. Two of the affidavits filed in this case were filed by interested parties. The third, filed by Green, merely stated that defendant was at the currency exchange on the afternoon of August 1, 1989. Green’s affidavit did not state the time defendant went to the currency exchange or where plaintiff was the rest of the day. It did not establish that defendant could not have been at his shop at the time when the confidential informant claimed the drug deal took place. We therefore find that the trial court could have permissibly concluded that an evidentiary hearing was not warranted. See People v. Tovar (1988), 169 Ill. App. 3d 986, 523 N.E.2d 1178.

Lastly, defendant contends, and the State agrees, that defendant is entitled to credit of $5 per day for each day of preconviction incarceration. Section 110 — 14 of the Illinois Code of Criminal Procedure of 1963 provides:

“Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. The clerk of the Court shall notify the defendant in writing of this provision of the Act at the time he is convicted. However, in no case shall the amount so allowed or credited exceed the amount of the fine.” (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 14.)

Because defendant was incarcerated for 87 days, at $5-per-day credit rate, defendant is entitled to a credit of $435 against the $5,000 fine.

For the reasons set forth above, the conviction is affirmed and defendant is given a credit of $435 against the fine.

Affirmed as modified.

MURRAY and COUSINS, JJ., concur.