text:
    DONALD KORBELIK, Plaintiff-Appellant, v. KAREN STASCHKE et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—1506
    Opinion filed July 10, 1992.

      Albert Brooks Friedman, Ltd., of Chicago, for appellant.
    Bradley J. Harris, of North Riverside, for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

Following a trial without a jury, the court entered judgment for defendants Karen and Arlene Staschke, and against plaintiff Donald Korbelik, in this malicious prosecution suit. Plaintiff now appeals, contending that the trial court erred in finding that defendants did not act with malice; that the trial court erred in not allowing plaintiff’s counsel to make a closing argument; that the court erred in admitting certain hearsay evidence; and that the court erred in not permitting greater latitude on cross-examination of defendants. We affirm.

The 41-year-old plaintiff and defendants (21-year-old Karen and her mother, Arlene) have lived next door to each other in Chicago for over 30 years. There have been ongoing difficulties between the families.

The record includes a police arrest report and complaint signed by Karen, accusing plaintiff of being “the person who put a ladder on the side of the victim’s house and looked into the bathroom window while the victim was taking a shower” on June 6, 1987, at 11:30 p.m. Plaintiff was charged with disorderly conduct. Ill. Rev. Stat. 1987, ch. 38, par. 26-l(l)(5).

On July 23, 1987, plaintiff was arraigned and entered a plea of not guilty. Following a bench trial, the trial judge found plaintiff not guilty of disorderly conduct.

On August 2, 1987, plaintiff filed the instant suit against defendants, alleging malicious prosecution. On March 2, 1990, a bench trial was held.

At trial, Karen Staschke testified that she had known plaintiff all her life. On the night in question she heard someone outside the bathroom window, and she called out to her mother. Karen did not actually see defendant. Karen testified that her family had previously complained to the police about plaintiff, and plaintiff had complained to the police about defendants. In fact, the day after plaintiff was arrested he returned home and telephoned the police to make a complaint about defendants.

Arlene Staschke testified that the last time she spoke with plaintiff was approximately 15 years ago. Her family had called the police about plaintiff approximately five times over the years. On June 6, 1987, her daughter Karen called out that someone was outside the bathroom window. Arlene went outside and saw plaintiff, wearing a robe and slippers, standing “on a ladder by my bathroom window looking in at my daughter.” Arlene testified further that about five years earlier she read in the newspaper that plaintiff, who was then a Chicago police officer, had been charged with having sex with a prostitute while he was on duty.

Ted Srednick, a long-time neighbor of the parties, testified that he had not been aware of any dispute between the parties.

Alan Korbelik testified that he was plaintiff’s brother. His family had “always” experienced problems with defendants’ family. The Staschke family had called the police 20 to 30 times about the Korbe-liks in the last five years.

Plaintiff Donald Korbelik testified that he had previously been a Chicago police officer and now taught history at a high school. The newspaper article referred to by Arlene concerned a bribery charge for which plaintiff was found not guilty. He was terminated from the Chicago police department for a rules violation. Plaintiff had been arrested three times, once for a felony offense. His termination from the police department was due to the incident resulting in the felony arrest.

Plaintiff testified further that he did not look through defendants’ bathroom window on June 6, 1987. Relations between the Korbeliks and defendants had been “going bad for many, many years.” The police had been called about 10 times by the Staschkes.

At the conclusion of the trial, the circuit court entered a judgment in favor of defendants. On April 24, 1990, the court denied plaintiff’s motion for a new trial. On May 22,1990, plaintiff filed this appeal.

Opinion

Plaintiff contends that the trial court erred in finding for defendants on the issue of malice and probable cause. The essential elements of a malicious prosecution claim require that plaintiff prove (1) that judicial proceedings were brought against the plaintiff; (2) that there was a lack of probable cause for those proceedings; (3) that the defendant demonstrated malice in instituting the proceedings; (4) that the cause of action was terminated in the plaintiff’s favor; and (5) that the plaintiff was injured. Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 45, 411 N.E.2d 229; Ghosh v. Roy (1991), 208 Ill. App. 3d 30, 566 N.E.2d 873; Burghardt v. Remiyac (1991), 207 Ill. App. 3d 402, 565 N.E.2d 1049.

Probable cause in a malicious prosecution case is “such a state of facts, in the mind of the prosecutor, as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion that the person is guilty.” (Freides v. Sani-Mode Manufacturing Co. (1965), 33 Ill. 2d 291, 295-96, 211 N.E.2d 286.) Whether a defendant has probable cause to bring criminal charges against a plaintiff is a question of fact. Freides v. Sani-Mode Manufacturing Co., 33 Ill. 2d at 296; Salmen v. Kamberos (1990), 206 Ill. App. 3d 686, 565 N.E.2d 6.

Plaintiff argues that the proof of defendants’ malice lies in the fact that Karen testified she never saw plaintiff on defendants’ property. While lack of probable cause might tend to establish malice (see Salmen v. Kamberos, 206 Ill. App. 3d 686, 565 N.E.2d 6), here we find that there was sufficient evidence for the trier of fact to conclude that Karen acted with probable cause when she signed the criminal complaint against plaintiff. Arlene Staschke testified that she saw plaintiff on her property, standing on a ladder outside defendants’ bathroom window, looking in at her daughter Karen. Arlene in turn told her daughter whom she had seen at the window. This was sufficient evidence for the trial court of fact to conclude that defendants did not act with malice in filing the disorderly conduct complaint against plaintiff.

Plaintiff also argues that the trial court erred in not permitting plaintiff’s attorney to present a closing argument, thus indicating that the trial judge was prejudiced against plaintiff. Plaintiff points to the following colloquy:

“THE COURT: I think we can save some time, gentlemen. I don’t think closing argument is needed. You can take the table.
[PLAINTIFF’S COUNSEL]: Your Honor, could I-could I speak to the Court to summarize?
THE COURT: I tell you, I got about 10 pages here, and I have been writing down, and I think I am pretty well aware of the testimony that has been given in this case.
[PLAINTIFF’S COUNSEL]: Okay.
THE COURT: I think in order to move it along, I am ready to rule.”

The courts have offered diverse rulings for whether or not a closing argument is required in criminal or civil, jury or nonjury, cases. (See generally Annot. Prejudicial effect of trial court’s denial, or equivalent, of counsel’s right to argue case, 38 A.L.R.2d 1396, (1954).) In a criminal trial, whether bench or jury, there is a sixth amendment right to present a closing argument. Herring v. New York (1975), 422 U.S. 853, 45 L. Ed. 2d 593, 95 S. Ct. 2550; People v. Withers (1981), 87 Ill. 2d 224, 228, 429 N.E.2d 853; People v. Daniels (1977), 51 Ill. App. 3d 545, 366 N.E.2d 1085.

Illinois follows those jurisdictions which hold that “[o]ral argument in a civil proceeding tried before the court without a jury, is a privilege, not a right, which is accorded to the parties by the court in its discretion.” Oil Workers International Union v. Superior Court (1951), 103 Cal. App. 2d 512, 581, 230 P.2d 71, 112. See, e.g., Skruzewski v. Rybarczyk (1918), 210 Ill. App. 180 (abstract) (in bench trial, court has discretion to refuse to hear argument); Gilis v. Krulewich (1915), 195 Ill. App. 384 (abstract) (same); Steinke v. Eisner (1915), 191 Ill. App. 172 (abstract) (same). See generally, Annot., 38 A.L.R.2d 1396, §5 (1954). Cf. Vieceli v. Cummings (1944), 322 Ill. App. 559, 561 (court holds that in civil case tried before a jury, argument of counsel is a “matter of right”).

The present civil case was tried without a jury. It involved a very short trial with an uncomplicated factual scenario. Moreover, the judge took extensive notes. We find the court did not abuse its discretion in refusing to permit plaintiff’s attorney to make a closing argument.

In an effort to demonstrate the trial judge’s bias against him, plaintiff also points to the following colloquy:

“THE COURT: How many witnesses do you have left?
[PLAINTIFF’S COUNSEL]: Two subpoenaed and a third, the Chicago Police Department’s records, and they’re not here yet, Judge. I don’t know what I am going to do about it.
THE COURT: I’ll tell you what you’re going to do about it. There’s a procedure that you have to follow in the Corporation Counsel’s office. If you’ve followed it, they would’ve been here. If they haven’t been followed, they will not be here.
[PLAINTIFF’S COUNSEL]: Judge, we were [assigned] out in one day. We served the records subpoena on them yesterday.
THE COURT: You’re wasting too much time on this case. It’s not a jury courtroom. You understand that.”

While it is prejudicial for a trial judge to make comments which indicate he harbors feelings of hostility toward a party or his attorney (People v. Zaccagnini (1963), 29 Ill. 2d 408, 194 N.E.2d 286), there is nothing in this record indicating any personal animosity between the judge and counsel. In regard to the above colloquy, we note that once a case has been reached for trial, sufficient cause is required to obtain a continuance. (134 Ill. 2d R. 231(f).) If the continuance is for obtaining material evidence, it is necessary to provide the court with an affidavit showing due diligence has been used. (134 Ill. 2d R. 231(a).) Similarly, a continuance required to permit counsel to further prepare is within the trial court’s discretion. People v. Surgeon (1958), 15 Ill. 2d 236, 154 N.E.2d 253.

Here, there is nothing to establish sufficient cause. For example, there is no affidavit or other statement in the record which might inform this court as to the particular Chicago police department records which plaintiff’s counsel sought and how those records might have affected the verdict. Moreover, as defendants point out, the case was filed on August 20, 1987, and the trial date was March 2, 1990. Plaintiff had sufficient time to obtain any necessary records. The trial court did not abuse its discretion in not permitting a continuance, and thus its decision does not demonstrate any bias on the court’s part.

Plaintiff also contends that it was error to admit hearsay evidence of a newspaper article. Apparently plaintiff was charged with accepting bribery by engaging in sexual conduct with a prostitute while on duty. He was charged with a felony and was dismissed from the police force. While it is not in the record, apparently the article made some reference to those charges. The trial court ruled that it was “hearing it as to reputation of damages and letting it come in as to reputation of damages.” At trial, plaintiff’s counsel apparently agreed that the article was relevant to the issue of damages:

“[PLAINTIFF’S COUNSEL]: I think the article may go to damages.' I don’t know how it goes to the issue of probable cause.”

We need not consider whether it would have been improper to admit the hearsay evidence for purposes of showing defendants had probable cause to believe plaintiff could be a “Peeping Tom.” The article was never used by the court for that purpose, or indeed even for the limited purpose for which it was admitted, i.e., to establish whether or not plaintiff’s reputation in the community had suffered. No error occurred.

Plaintiff finally contends that the trial court erred in not permitting greater latitude in the cross-examination of defendants. Plaintiff points to the first area of questioning he raised with Karen.

“Q. Could you tell me why you denied he was a citizen in the State of Illinois [in] the answer you filed in this lawsuit?”

The trial court instructed counsel to move on to the issues of the case and not focus on immaterial matters: “[T]his court is taking it for granted that when he answered the complaint it was either a typo [or] he denied everything. It’s not material, and it doesn’t affect her credibility.”

The scope and extent of cross-examination rests largely in the discretion of the trial court, and a reviewing court will not interfere with the trial court’s ruling absent an abuse of discretion. (Sorenson v. Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47.) Here, the trial court did not abuse its discretion in deflecting the testimony away from the question of whether defendants erroneously stated in their answer that plaintiff, who had been defendants’ next-door neighbor in Illinois for well over three decades, was not a citizen in the State of Illinois.

Accordingly, for these reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

LORENZ and MURRAY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANNY SMITH, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—2546
    Opinion filed July 10, 1992.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Sta-brawa, and Carrie Weiner, Assistant State’s Attorneys, of counsel), for the People.
    Raymond D. Pijon, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

The State appeals under Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)), from two rulings of the trial judge quashing the arrest of defendant, Danny Smith, and suppressing the lineup and in-court identifications of him. We consider: (1) whether this court has jurisdiction when the State filed its notice of appeal more than 30 days after the judge found that there was no probable cause for defendant’s arrest and suppressed the lineup and in-court identifications of him and (2) whether it was manifestly erroneous for the trial judge to rule that (a) the police did not have probable cause to arrest defendant; (b) the lineup identifications of defendant were not attenuated from his illegal arrest; and (c) the in-court identifications did not have an independent basis. For the following reasons, we affirm.

Defendant was arrested and charged with armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)). Three witnesses to different armed robberies identified defendant in lineups. Prior to trial, he moved to quash his arrest and suppress the lineup and in-court identifications of him. During a hearing, the following testimony was presented.

Antonio Robinson testified that on July 18, 1988, at about 3 or 4 p.m., he was in defendant’s home with defendant, Diane Todd, Glodine Jordan, and two children. They were in the kitchen when Robinson saw two unmarked police cars pull up in the alley. At that time, Jordan left the kitchen to answer a knock at the front door. Without being invited in and without consent, four officers in plain clothes entered the kitchen and handcuffed defendant. Robinson asked some questions and one of the officers pointed his finger in Robinson’s face, said “you look familiar,” and handcuffed him. Four or five other officers entered the house through the front door with their guns drawn. The officers never showed an arrest or search warrant, but they searched the house and Todd’s car. The officers took defendant and Robinson to the police station and told them they were being taken because of a car accident. A couple of hours later, Robinson was placed in 9 or 10 lineups and eventually released without being charged.

Glodine Jordan testified that she answered the knock at the front door. Two officers in plain clothes, who did not identify themselves, asked her about defendant. Jordan did not speak to them. Although she did not invite them in, she opened the door for them and they followed her inside.

Diane Todd, defendant’s fiancee, testified that the officers searched the house without a warrant and without permission. When an officer wanted to search the basement where Todd kept her dog, he said to her, “Get the damned dog out of the basement or I’ll kill the mother.” They also searched her car.

Detective Michael McDermott testified that on July 8, 1988, he interviewed Maurice Smith while he was under arrest for committing an armed robbery and suspected of committing several others. Smith said that he learned his trade from defendant, his uncle, who had committed numerous armed robberies in the Chicago area. He also stated that defendant had been convicted of armed robbery in the past. Smith said defendant lived with Todd and gave McDer-mott Todd’s address. Smith also identified Theodore Brunson as defendant’s “close associate” who may have committed robberies with defendant. Smith never provided information to the police before and he subsequently pled guilty to eight or nine robberies. McDermott did a background check on defendant which showed two felony convictions for armed robbery.

McDermott also interviewed Brunson on July 8, who stated that he believed defendant committed numerous armed robberies but he knew of only one specifically. Brunson told McDermott that on May 28, 1988, he drove defendant to a pet store near 103rd and Long-wood Avenue and when defendant returned, he said he just “stuck up the place” and showed Brunson a handgun and money. Brunson claimed he did not know defendant would rob the store. Brunson described defendant as a black male, dark complexion, 6 feet 3 inches tall, and in his thirties.

McDermott found a case report of an armed robbery at a pet store on May 28, 1988, at that location. In the report, the victim described the offender as a black male, in his thirties, 5 feet 9 inches tall, 150 pounds, short black hair, and a mustache.

McDermott testified that he first went to an address listed in defendant’s parole information but no one was home. At about 6:15 p.m., on July 18, 1988, McDermott and four other officers went to Todd’s house to verify defendant’s address and arrest him if he was there. While two officers were at the back of the house, McDermott and Detective George Basile knocked at the front door. They identified themselves for the woman who answered the door and asked whether defendant was there. The woman stated that defendant was not there and that he came by “on and off.” She opened the screen door and invited them inside. Within a few seconds, the two officers who were stationed at the back of the house entered the kitchen with defendant, who was handcuffed. Robinson, who was drunk, was arrested because he was interfering. The officers did not search the house or the car and took defendant and Robinson to the police station. During the next three to four hours, they were placed in several lineups.

Detective Michael Cummings testified that he went with McDer-mott and three other officers to Todd’s house to verify defendant’s address which was necessary for an arrest warrant. Cummings and Detective James Boylan went to the back of the house. As they approached the back door, defendant, who was not wearing shoes or a shirt, ran out of the house. They arrested and handcuffed him and brought him inside the house to put clothes on. Robinson was arrested because he was interfering with the police. Cummings testified that the officers did not search the house or the car.

In defendant’s arrest report, he was described as a black man, 34 years old, 6 feet tall, 180 pounds, black hair, brown eyes, dark complexion, and not wearing glasses. It also stated that defendant was arrested at 6:15 p.m.

On March 23, 1990, the trial judge found that the officers did not have probable cause to arrest defendant and suppressed the lineup identifications of him. The judge rejected the officers’ testimony that they went to Todd’s house only to verify defendant’s address and found that defendant was arrested as a pretext for a lineup identification. The judge set another hearing on the issue of whether the State could prove by clear and convincing evidence that the in-court identifications of defendant had an independent basis from the illegal lineups.

At the next hearing, the State presented the testimony of Elvin Anderson, the manager of a shoe store, who testified that on May 17, 1988, two men came in the store with guns and one of them demanded money. That man was black, 6 feet 5 inches tall or taller, and weighed 175 to 180 pounds. Anderson observed the man for 10 minutes. On cross-examination, Anderson testified that the man was 6 feet or 6 feet 1 inch tall and was between 25 to 30 years old. He also testified that on the day of the robbery, he described the man to the police as 6 feet tall, with a mustache, and he denied telling the police that the man was only 5 feet 8 inches tall. Anderson identified defendant in a lineup. An officer told him that he was correct, that defendant was responsible for other robberies, and that other people also identified him.

Officer Suzanne Urpon testified that after the robbery, Anderson described one of the men as 5 feet 8 inches tall, 25 to 30 years old, and 200 pounds and described the other man as 6 feet 1 inch tall, 185 pounds, and 20 to 25 years old. It was not clear from Ur-pon’s testimony which description was of the man that demanded the money.

Lucy Hudson, a witness to a shoe store robbery on May 28, 1988, testified that the man who robbed the store was black, in his early thirties, 6 feet 2 inches or 6 feet 3 inches tall, and weighed between 175 to 180 pounds. She also said that the man was neatly dressed, well groomed, and wearing blue-tinted glasses. She observed the man for three or four minutes as she was standing next to him. Defendant was the only neatly dressed, well-groomed man in the lineup. Hudson identified defendant in the lineup and the officers told her that another couple identified the same man for a different armed robbery.

Carolyn Gleaves was an employee of a pet store that was robbed on May 28, 1988. She described the man who robbed the store as in his early thirties, 5 feet 6 inches or 5 feet 7 inches tall, 150 to 180 pounds, fair or medium complexion, with a mustache, and wearing glasses. She also testified that he may have been 6 feet 1 inch tall. She observed him for 10 to 15 minutes and during some of that time, she was a couple of feet away from him. On July 18, she arrived at the police station at about 9 p.m., to view a lineup. After she identified defendant, the officers told her that he had “pulled a couple of other jobs” which confirmed to her that she picked the right man.

The State and defendant stipulated that Officer Crawford would testify that after the robbery, Gleaves described the man as 5 feet 9 inches tall with short black hair and she did not state that he was wearing glasses.

On June 29, 1990, the trial judge found that the State did not prove by clear and convincing evidence that there was an independent basis for the in-court identifications of defendant. The judge also stated that although he had previously found that the police did not have probable cause to arrest defendant, that finding was not final and he had jurisdiction to correct an error sua sponte. The case was continued for a hearing on that issue.

On August 6, 1990, the trial judge reaffirmed his previous rulings that there was no probable cause for defendant’s arrest and there was no independent basis for the in-court identifications of defendant. Defendant was released from custody.

The State filed a notice of appeal on August 27, 1990.

Opinion

Initially, defendant challenges this court’s jurisdiction, arguing that the State did not file a notice of appeal within 30 days of the March 23 ruling that there was no probable cause and suppressing the lineup identifications.

Supreme Court Rule 604(a)(1) allows the State to appeal from an order quashing an arrest or search warrant or suppressing evidence. (134 Ill. 2d R. 604(a)(1).) The pretrial rulings on motions to quash and suppress are not appealable under Rule 604(a)(1) until the trial judge has ruled on all of defendant’s requested relief. (People v. Rembert (1980), 89 Ill. App. 3d 371, 411 N.E.2d 996.) The trial judge may reconsider a final appealable judgment or order within 30 days of its entry. (People v. Heil (1978), 71 Ill. 2d 458, 376 N.E.2d 1002.) A timely motion for reconsideration of a ruling granting a suppression motion will toll the time to file a notice of appeal under Rule 604(a)(1). See People v. Williams (1990), 138 Ill. 2d 377, 563 N.E.2d 385.

In this case, defendant moved to quash his arrest and suppress the lineup and in-court identifications of him. The trial judge ruled on March 23 that the police officers did not have probable cause to arrest defendant and he suppressed the lineup identifications of defendant. On June 29, the trial judge suppressed the in-court identifications of defendant. Contrary to defendant’s argument, under Rembert, the pretrial rulings were not appealable until June 29, when the judge completed his rulings on defendant’s requested relief.

Although it appears that the State should have filed its notice of appeal within 30 days of June 29, at that hearing the judge sua sponte opened reconsideration of the probable cause issue. In this case, unlike Williams, the State did not file a motion to reconsider; however, we believe that the holding of Williams is equally applicable here where the judge decided to reconsider his ruling sua sponte. As a result, the time for filing a notice of appeal was tolled until August 6, when the judge reaffirmed his previous rulings. Therefore, the State’s notice of appeal, filed on August 27, was timely and this court has jurisdiction.

Considering the merits of the appeal, the State challenges the trial judge’s rulings on defendant’s motions to quash his arrest and suppress the lineup and in-court identifications of him. A trial judge’s ruling on a motion to quash arrest and suppress evidence will not be reversed on appeal unless it was manifestly erroneous. People v. Henderson (1990), 142 Ill. 2d 258, 568 N.E.2d 1234.

The State first argues that the trial judge erred when he found that the police did not have probable cause to arrest defendant.

The fourth amendment requires that the police have probable cause to arrest a person. (U.S. Const., amend. IV.) A police officer may arrest a person without a warrant when he has reasonable grounds or probable cause to believe that the person is committing or has committed an offense. (Ill. Rev. Stat. 1989, ch. 38, par. 107— 2(l)(c); People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) To prove probable cause, the State must show that the facts and circumstances known to the arresting officer were sufficient to warrant a person of reasonable caution to believe that an offense was committed and that defendant committed the offense. People v. Bates (1991), 218 Ill. App. 3d 288, 578 N.E.2d 240.

In this case, the police based probable cause on information from Smith and Brunson, a case report of a pet store robbery, and a background check of defendant. Neither Smith nor Brunson provided information to police before and, therefore, they did not have proven reliability as informers. Smith told McDermott that defendant committed numerous robberies but did not link defendant to a specific robbery. Although the State argues that the police had information connecting defendant to several armed robberies, the only crime linked to defendant was the pet store robbery. That information came from Brunson, who told McDermott that he was with defendant when he committed the robbery. Brunson described defendant as a black man, 6 feet 3 inches tall, in his thirties, with a dark complexion. However, when McDermott checked the case report of the pet store robbery, it showed that the victim described the offender as a black man, in his thirties, 5 feet 9 inches tall, 150 pounds, with short black hair, and a mustache. This description of the offender in the case report did not corroborate Brunson’s description of defendant. Further, contrary to the State’s argument, defendant’s previous convictions for armed robbery did not corroborate Brunson’s information that defendant robbed the pet store.

As a result, the facts and circumstances known to the police when they arrested defendant did not support a finding that they had probable cause to believe that defendant committed the pet store robbery. Smith did not link defendant to a specific robbery. Brunson had never provided information to the police before and his information that defendant committed the pet store robbery was not corroborated. Further, the case report of the pet store robbery showed that the victim described the offender differently than Brunson described defendant. Although the information the police had may have been sufficient to allow them to suspect defendant, it did not rise to the level of probable cause. The trial judge’s ruling was not manifestly erroneous.

Next, the State argues that the lineup identifications of defendant were attenuated from his illegal arrest and, therefore, should not have been suppressed.

There are several factors to consider in determining whether a lineup identification was sufficiently attenuated from an illegal arrest: the temporal proximity of the illegal arrest to the identification; the purpose and flagrancy of the police officers’ conduct; and the presence of intervening circumstances. People v. Dortch (1982), 109 Ill. App. 3d 761, 441 N.E.2d 100; see Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

Considering the first factor of temporal proximity, Robinson testified that the police entered Todd’s house at about 3 or 4 p.m., but the arrest report stated that defendant was arrested at 6:15 p.m. McDermott testified that the lineup procedure lasted three to four hours. The record indicates that at least one witness, Gleaves, arrived at the station to view the lineup at 9 p.m. The passage of approximately three to six hours from the arrest to the lineup supports the trial judge’s finding of temporal proximity. As to the purpose and flagrancy of the police officers’ conduct, the officers testified that they went to Todd’s house merely to verify his address. However, the witnesses in the house testified that four or five police officers entered both the front and back of the house without permission, without warrants, and with their guns drawn. They arrested both defendant and Robinson and they searched the house and Todd’s car. They threatened to shoot Todd’s dog. The officers told Robinson and defendant that they were being taken to the police station because of a car accident. This testimony supports the judge’s finding that defendant was arrested solely as a pretext to obtaining an identification in a lineup and that the officers’ conduct was flagrant. As to the third factor, there was no evidence in the record of intervening circumstances. As a result, the judge’s decision that the lineup identifications were not attenuated from the illegal arrest was not manifestly erroneous.

Lastly, the State argues that the trial judge erred in suppressing the in-court identifications of defendant. The judge found that they did not have an independent basis.

An in-court identification may be admissible despite an illegal pretrial confrontation if the State proves with clear and convincing evidence, based on a totality of the circumstances, that the witness is identifying defendant based solely on his memory of the events at the time of the crime. (People v. McTush (1980), 81 Ill. 2d 513, 410 N.E.2d 861.) To determine whether the in-court identification had an independent basis, the court must consider the witness’ opportunity to view the offender at the time of the crime, the accuracy of the witness’ prior description of the offender, the witness’ level of certainty in identifying the offender, the length of time between the crime and the confrontation, and the witness’ acquaintance with the offender prior to the crime. McTush, 81 Ill. 2d 513, 410 N.E.2d 861.

In this case, Anderson, Hudson, and Gleaves, who witnessed three different armed robberies, identified defendant in lineups about two months after the robberies were committed. The witnesses did not have any prior acquaintance with defendant. Each witness had adequate opportunity and time to observe the offender. However, both Anderson’s and Gleaves’ descriptions of the offender were not accurate. Their descriptions varied from the date of the robbery to the time they were testifying and their descriptions were fairly broad. Anderson’s descriptions varied from 5 feet 8 inches to 6 feet 5 inches tall and 175 to 200 pounds; Gleaves’ descriptions varied from 5 feet 6 inches to 6 feet 1 inch tall and 150 to 180 pounds. Although Hudson’s description was similar to defendant, she focused on the fact that the offender was neatly groomed and well dressed. Defendant was the only neatly groomed and well-dressed man in the lineup, which suggests the reason Hudson identified him. Also, after Anderson, Gleaves, and Hudson identified defendant, the officers told each of them that they picked the right man. These comments bolstered the witnesses’ identifications of defendant in their own minds. For these reasons, it was not manifestly erroneous for the trial judge to rule that the State did not present clear and convincing evidence that the witnesses were identifying defendant based solely on their memory of the crime.

Affirmed.

MURRAY and GORDON, JJ., concur.


text:
    THOMAS JURETIC, Plaintiff, v. U S X CORPORATION, Defendant and Third-Party Plaintiff-Appellant (P.K. Engineering and Manufacturing Company, Inc., Third-Party Defendant-Appellee).
    First District (5th Division)
    No. 1—90—3657
    Opinion filed July 10, 1992.
    Luanne Ellison, of Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., of Chicago, for appellant.
    John H. Sandberg, of Wiedner & McAuliffe, Ltd., of Chicago, for appel-lee.
   JUSTICE LORENZ

delivered the opinion of the court:

The underlying action in this case was a personal injury claim brought by Thomas Juretic against USX Corporation. USX Corporation filed a second-amended, third-party complaint alleging in count III that third-party defendant, P.K. Engineering & Manufacturing Company, breached its contract to purchase insurance on behalf of USX Corporation. The trial court found that the insurance provision in the contract was inextricably tied to a void indemnity provision, and, therefore, the insurance provision was unenforceable. The trial court entered an order pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), and USX Corporation brought this appeal. We consider whether the trial court properly dismissed count III of the second-amended, third-party complaint.

We reverse and remand.

On June 15, 1987, plaintiff, Thomas Juretic, suffered injuries when he fell from an electrical tower located on the property of USX Corporation (USX). Juretic, an electrician, was employed by RK. Engineering & Manufacturing Company (P.K. Engineering), which was under contract with USX to dismantle and reroute various electrical facilities of USX.

On July 19, 1988, Juretic filed a one-count complaint against USX alleging violations of the Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.). USX filed its answer and affirmative defenses. USX also filed a third-party complaint against P.K. Engineering. In this initial third-party complaint, USX sought contribution pursuant to the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.).

Subsequently, Juretic filed an amended complaint against USX adding a count under a theory of negligence. USX then filed an amended third-party complaint against P.K. Engineering seeking contribution with respect to Juretic’s negligence count.

On February 20, 1990, USX filed a second-amended, third-party complaint adding a third count against P.K. Engineering. Count III alleged that P.K. engineering breached its contract to purchase insurance on behalf of USX. Two provisions of the contract are relevant to this appeal:

“ARTICLE 13-INDEMNITY
Contractor, for itself, its successors and assigns, agrees to defend, indemnify and save Owner, its successors and assigns, harmless from and against any and all claims, demands, damages, actions or causes of action, together with any and all losses, costs, or expenses, in connection therewith or related thereto, asserted by any person or persons, including employees of contractors for bodily injuries, death or property damage arising or in any manner growing out of the work performed or to be performed under this Agreement whether or not caused or alleged to be caused in whole or in part by the fault or negligence of Owner. In connection with any demands, claims or any other legal proceedings covered by this article, Owner retains the right to be represented, at its sole option, by attorneys of its own selection, at its own expense. The exercise of this right to select its own attorneys will in no way detract from or release the Contractor from its obligation to indemnify and hold Owner harmless hereunder.
ARTICLE 14-INSURANCE
Contractor shall maintain and require its Subcontractors, if any, to maintain in full force and effect during the performance of the work, insurance coverage with insurance companies satisfactory to Owner, insuring the Contractor’s obligations to Owner under the indemnification clause of this Agreement and Contractor’s and Owner’s liability to pay for any bodily injuries or death received or sustained by any person or persons in any manner caused by, arising from, incident to, connected with or growing out of Contractor’s performance of the work covered by this agreement, or caused by, arising from, incident to, connected with or growing out of the use of vehicles in connection therewith. Said policies of insurance shall provide that the Owner be named as an additional insured and that the insurance company shall be required to pay up to One Million Dollars (1,000,000) for bodily injuries or death for any one occurrence. Contractor shall also carry insurance in insurance companies satisfactory to Owner, insuring the Contractor’s and Owner’s liability to pay for any and all loss, damage and injury to the property of any and all persons in any manner caused by, arising from, incident to, connected with or growing out of Contractor’s performance of the work covered by this Agreement, or caused by, arising from, incident to, connected with or growing out of the use of vehicles in connection therewith. Said policy of insurance shall provide that the Owner be named as an additional insured and that the insurance company shall be required to pay up to One Million Dollars ($1,000,000) for any one occurrence.”

Specifically, the language in count III stated: “the provisions of Article 13 and 14 of the aforesaid contract obligated [P.K. Engineering] to obtain insurance coverage naming USX as an additional insured”; that the insurance “would have provided coverage for USX’s defense and indemnification costs, if any, of the plaintiff’s lawsuit against USX”; and that USX incurred costs and expenses arising out of the defense of plaintiff’s lawsuit. The requested relief included “all costs and expenses incurred by USX in defense of plaintiff’s action and all amounts, if any, paid or payable to [plaintiff] in settlement, satisfaction of a judgment, or costs otherwise incurred by USX.”

P.K. Engineering filed a motion to dismiss count III. P.K. Engineering argued that the indemnity provision of the contract was void pursuant to section 1 of “An Act in relation to indemnity in certain contracts” (Ill. Rev. Stat. 1989, ch. 29, par. 61). Furthermore, RK. Engineering argued that the insurance provision related solely to P.K. Engineering’s obligations under the indemnity provision, and therefore, the insurance provision was also void. The motion cited Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 44 N.E.2d 542.

At the hearing on the motion, P.K. Engineering focused the court's attention on the language in count III itself. P.K. Engineering emphasized that the language tied the two provisions together by stating “the provisions of Article 13 and Article 14 obligated [P.K. Engineering] to obtain insurance coverage naming USX as an additional insured.” (Emphasis added.)

USX responded that Article 14 addressed insurance intended to cover matters other than the obligations under the indemnity provision. For example, the insurance would have covered USX’s liability for bodily injuries arising out of the work. The insurance provision also contained a requirement that USX be named as an additional insured on P.K. Engineering’s insurance policies.

On November 13, 1990, the trial court granted P.K. Engineering’s motion to dismiss. The court found that USX tied the two provisions together in count III. The court denied USX leave to file a third-amended, third-party complaint and entered an order pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). USX filed this appeal.

Opinion

The parties have conceded for the purposes of this appeal that the indemnity provision (Article 13) was void pursuant to section 1 (Ill. Rev. Stat. 1989, ch. 29, par. 61). However, our focus here is on the insurance provision (Article 14). If Article 14 is inextricably tied to the void indemnity provision, then Article 14 is also void. (Accord Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 484 N.E.2d 542.) If Article 14 covers matters other than the obligations under the void indemnity provision, then it is at least in part enforceable. Accord Bosio v. Branigar Organization, Inc. (1987), 154 Ill. App. 3d 611, 506 N.E.2d 996; St. John v. City of Naperville (1987), 155 Ill. App. 3d 919, 508 N.E.2d 1128.

Our analysis shows that Article 14 provides for insurance coverage in three parts:

(1) the insurance would cover “the Contractor’s obligations to the Owner under the indemnification clause of this Agreement”:
(2) the insurance would also cover “Contractor’s and Owner’s liability to pay for any bodily injuries or death received or sustained by any person or persons *** connected with or growing out of Contractor’s performance of the work covered by this agreement, or *** connected with or growing out of the use of vehicles in connection therewith”; and
(3) the insurance would also cover “Contractor’s and Owner’s liability to pay for any and all loss, damage and injury to the property of any and all persons *** connected with or growing out of Contractor’s performance of the work covered by this Agreement, or *** connected with or growing out of the use of vehicles in connection therewith.”

It is clear that the first part of the insurance coverage is inextricably tied to the void indemnity provision and is therefore also void. However, the second and third parts cover matters other than the obligations under the void indemnity provision. This insurance was intended to cover liability for bodily injury or death and liability for damage to property arising out of P.K. Engineering’s performance of its work. In addition, P.K. Engineering was required to add USX as an additional insured under these areas of coverage. We note that these kinds of agreements to obtain insurance are consistent with public policy — assuring compensation for injured workers. (See Zettel v. Paschen Contractors, Inc. (1981), 100 Ill. App. 3d 614, 427 N.E.2d 189.) Therefore, Article 14 is enforceable to the extent of parts two and three of its intended coverage. It follows that the trial court erred in dismissing count III of USX’s second-amended, third-party complaint.

It is true that the language in count III suggested that Article 13 and Article 14 were tied together. However, the proper focus here belongs on the language of Article 14 and not on the language of count III. On remand, USX Corporation will be allowed to further amend the third-party complaint consistent with this analysis.

Reversed and remanded.

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


author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY GLASS, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1310
    Opinion filed July 10, 1992.

      Michael H. Cole & Associates, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Janet Ma-honey, and Theresa Harney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court;

Henry Glass was convicted of first degree murder and sentenced to 25 years in prison. On appeal he contends the indictment against him was improperly amended, the State violated discovery requirements and the judge improperly denied his motions to appoint an expert witness, to suppress incriminating statements he made and to grant his request for new counsel.

On appeal defendant poses these issues: (1) whether the indictment was properly amended prior to trial; (2) whether the State violated its duty to tender discovery prior to trial; (3) whether the trial judge erred in denying defendant’s motion to suppress statements; (4) whether defendant effectively waived his Miranda rights; (5) whether the trial judge erred in denying the appellant’s motion for substitution of counsel; (6) whether defendant’s trial counsel properly assisted defendant with his burden of production; (7) whether the trial judge erred in denying defendant’s motion for an expert witness; and (8) whether defendant and his court-appointed attorney had a conflict of interest prior to the commencement of trial.

Defendant Henry Glass was arrested and charged with murdering his common-law wife, Kim Blanchard, in their apartment in Chicago. On January 6, 1989, defendant was indicted on two counts of first degree murder for beating Kim Blanchard “with his fists.” The indictment was amended without objection from the defense on the first day of trial to omit the reference to “fists.” Before trial, defendant filed a motion to suppress statements he had made to police and an assistant State's Attorney.

PRETRIAL SUPPRESSION HEARING

Testimony on the motion to suppress was heard over two days, August 17 and September 22.

Detective John Santopadre testified that on December 8, 1988, he and Detective Mohan spoke with the defendant at approximately 11 p.m. at the police station. He testified that defendant was given his Miranda rights from a preprinted card, defendant acknowledged each right he had and then defendant chose to speak with the officers.

He testified that he phoned an assistant State’s Attorney and received the results of an autopsy report before speaking with defendant again at 7 or 7:15 p.m. on December 9. With Mohan present, defendant was read his Miranda rights and defendant responded “Yes, I do” after he was asked if he understood each right. Santopa-dre testified that after defendant was informed of the autopsy report he chose to make another statement.

Santopadre testified that, at approximately 8 p.m., Assistant State’s Attorney Mary Beth Kinnerk arrived, read defendant his Miranda rights and then took a statement from defendant while he and Mohan were present. Santopadre testified that the three left defendant in the room for a short time, and when they returned, Kin-nerk repeated the Miranda rights to defendant and then gave him a written statement that was a summary of his statement to her.

Santopadre testified that the defendant read the statement very slowly and if he needed help with a word he was helped. The defendant made changes to the statement at will. Santopadre and Kinnerk signed and initialed each page of the statement. The defendant signed the statement after initialing changes he made. The statement was admitted into evidence.

Santopadre testified that defendant’s responses were easily understood and that defendant did not slur his speech. He testified that defendant did not appear to be suffering from the effects of cocaine withdrawal. He admitted that the defendant stated that he was tired and high on December 8 but that the defendant did not appear to have any difficulty answering questions.

He denied that Kinnerk threatened the defendant in any way, specifically denying that defendant was threatened with the death penalty or with a beating by police officers. He admitted that either on December 8 or 9 the defendant told him “something about going downstairs and getting high with a neighbor or outside and getting high or buying some wine or something like that.”

Detective Joseph Mohan testified to the same events on December 8 and 9. He admitted that the defendant told him on December 8 that he had gotten high earlier in the day and had something to drink right before the police came to pick him up. He admitted that he was not present when Santopadre, Kinnerk and the defendant signed the statement but he was in the room when the defendant read the statement out loud.

Assistant State’s Attorney Mary Beth Kinnerk testified that she interviewed defendant after reading him his Miranda rights. She testified that defendant was articulate and did not appear to be under the influence of either alcohol or drugs. She testified that she reduced their conversation to writing and then the defendant made corrections to it before signing the statement. She denied making any threats to the defendant and commented that there was a portion of defendant’s statement that he signed that said he had not been threatened and that he had been given a sandwich, lasagna, french fries and coffee and was allowed to use the bathroom. She admitted that he confessed to having consumed a bottle of brandy in the five hours between Blanchard’s death and his arrest, 24 hours before she interviewed him.

The defendant testified that he drank a liter of brandy and consumed about 3x/2 ounces of cocaine the day of his arrest, December 8. He testified that he was awakened by police at about 6 p.m. and handcuffed. He testified that he told police he wished to have a lawyer present. He testifed that he was was “jittery and drowsy and confused” at the time he was put in the lockup. He testified that he was never given his Miranda rights by police or the assistant State’s Attorney. He testified that Kinnerk told him if his statements did not please her she “would see to it that I would get a life sentence or the death penalty.” He testified that she also threatened to have police officers beat him up.

On cross-examination he testified that he started drinking and consuming drugs at approximately 8 p.m. on December 7, 24 hours prior to his arrest.

The trial judge denied defendant’s motion to suppress statements he made to police finding that defendant was under no physical impairment or coercion at the time the statements were made. The judge found that, weighing the credibility of the witnesses, the defendant made a free, voluntary and intelligent waiver of his Miranda rights before making a statement to police.

PRETRIAL MOTION FOR NEW ATTORNEY

On November 6, the day his trial began, defendant made an oral motion for a bar association attorney to replace his public defender. Defendant contended that he had not been properly assisted in his case, primarily because his counsel had not spoken with him except in court. The public defender stated that he had spoken with defendant at the jail with regard to motions and intended to speak with him again before trial. The judge denied defendant’s motion for a new attorney.

TRIAL COMMENCES

Defendant waived his right to a jury trial and his trial took place on March 6, 1990, March 28 and April 9. Defendant’s neighbor, Lester Burson, was the first witness. Burson testified that he knew the defendant by the name “Solo.” He testified that, at about 5 a.m. on December 8, he heard Solo hollering in the apartment above his. He heard other noises and the yelling went on for about an hour. He testified that, at about 7:30 a.m., Solo came to his door to borrow a test tube. He heard more shouting, including the defendant cursing and saying something about being tired of something and not giving a shit. He testified that he heard two voices during that time, defendant’s and a softer voice.

He testified that around noon another neighbor came to his door and asked him if something was burning. Burson was the building’s janitor and manager. He testified that he smelled “a funny thing” and went to the basement to see if something was on fire but found no fire.

He testified that later in the day he saw defendant in the hall and defendant said he wanted to talk later. Burson testified that he saw defendant later in the day, after school was out, and that defendant said “something about this world fucking messed up or something like that. *** He messed his world up or something like that.”

He testified that defendant came to his home at about 6 or 6:30 p.m. and seemed upset. The defendant told him he had come home earlier and found his “old lady” dead. Burson testified that Solo threw the keys across the kitchen table and told him and one of his daughters, Keisha, to go look themselves at his dead wife. Burson testified that Solo passed out at the table. Burson’s wife, Laverne, was there also, having just returned from the grocer. Many police officers arrived a short time later and they placed defendant under arrest.

On cross-examination Burson admitted that he and his wife were also arguing in the early morning hours of December 8. He agreed that he could have been hearing three different voices from defendant’s apartment, including a voice from another woman who sometimes lived there. He admitted to being convicted of theft and burglary and to prior use of cocaine.

Laverne Burks, Lester’s wife, testified that she heard arguing coming from defendant and Kim Blanchard’s apartment for about two or three hours on December 8. She testified that she heard a man’s voice at one point and that she did hear another noise sometime before her kids went to school. She testified: “Well I heard a thump. It got quiet and it was a high sound, just hit the floor real solid. I jumped up. My kids say, ‘You heard that?’ I say, ‘Yes.’ We didn’t pay no more attention.”

She testified that on her way back from a store after the kids had gone to school she heard the defendant shouting, “You bitch, I told you you could. *** You motherfucker, he kept saying it.” She testified that she heard no other voice respond but she assumed he was arguing with Blanchard.

She testified that around noon a neighbor came to the door to pay rent and when the door was opened she smelled something she had never smelled before. The neighbor asked if something was burning but Burks replied “No.”

She testified that later in the afternoon she returned home with groceries and found the defendant at her kitchen table “banging on the table and crying.” He told her he had come home and found Blanchard dead. He told her she died after being burned while freebasing. He told her he had not touched her and said, “If you don’t believe me, go upstairs and see.” He was crying and he said “You all could help me.” But Burks testified that she left the apartment and phoned the police.

On cross-examination she admitted that she had heard a scream around noon or 1 p.m. on December 8 but she denied that it was specifically a woman’s scream, stating that it was like a screeching scream made out of frustration.

Eleven-year-old Keisha Burks testified that in the early morning hours of December 8, before school, she heard a loud noise above the front room where she was with her brother. She described the noise as something heavy which had fallen on the floor. She testified that she and her brother heard another loud noise and then heard the defendant screaming “fucking bitch” and “why are you doing this.” She heard no reply.

She said she went to school shortly after and when she came home she took a rest on the couch in the living room. She testified that at about 6:30 p.m. she helped her mother take groceries out of the car. She found the defendant in the kitchen drinking and banging his head against the table. He said twice that he had killed his wife. She testified that when her father came in she took him to the living room to talk to him.

On cross-examination she admitted that the defendant did not say he had hit his wife or murdered her. She testified that after she spoke with her father he told her to go to her aunt’s house.

Rosemary Fanaras, who lived in the apartment above the defendant, testified that from around 3 a.m. to 5 a.m. on December 8 she heard the defendant and Blanchard arguing. The only words she could make out were the defendant’s who said, “No woman does this to me.” At one point she heard the bathtub water running and she could also hear “thumping,” like someone hitting a wall or falling against a wall. She testified that by the time she went back to bed around 5 a.m. the fighting had subsided.

On cross-examination she denied telling the police officers that she heard any yelling, banging, noises or thumping at 8:30 or 9:30 a.m.

Officer Vincent J. Krocka testified that he and his partner, Dennis Drygal, went to defendant’s building around 8 or 8:30 p.m. on December 8 and went inside the first-floor apartment where defendant was sitting at a table with his head down. He testified that defendant was apparently drinking or high and was kind of passed out. He testified that, after taking a key from defendant’s pocket, he and his partner went upstairs to the second-floor apartment and found a black woman, naked and partially burned, lying on a bedroom floor. He testified that he immediately returned to the first-floor apartment and put handcuffs on the defendant. On cross-examination he testified that the defendant appeared to be heavily intoxicated at the time of his arrest.

Officer John Santopadre testified that he and his partner, Joseph Mohan, went to defendant’s apartment December 8 and observed the dead woman, Kim Blanchard. He identified several pictures taken at the scene, including one that showed a mark on one of the walls which he identified as blood. He testified that the bathroom tub had water in it and the floor appeared to have just been washed. A pair of cut-up pants were in the garbage can in the kitchen.

Santopadre testified that he and Mohan interviewed defendant at about 11 p.m. that evening after Mohan read defendant his Miranda rights from a preprinted card. Defendant told the officers that Blanchard had come home at about 4 a.m. on December 8 and went into the bathroom. He said he heard a loud noise and a scream and when he went into the bathroom he found Blanchard on fire. He testified that he wrapped her in a blanket to put the flames out but a short time later she died. He told the officers that he did not call police right away because he wanted to go out and get high or drunk.

Santopadre testified that he and his partner spoke with the defendant again the next evening, December 9, after he read the defendant his Miranda rights from a preprinted card. The defendant recounted his version of how Blanchard had died, volunteering as an explanation for the bruises on her body that she was a prostitute and a trick must have beaten her up.

He testified that Kinnerk arrived and defendant again spoke after waiving his Miranda rights. Santopadre testified that when defendant gave his second statement on December 9 he added additional facts, including that Blanchard had called at about 4 a.m. December 8 to tell him she was bringing a trick home. He told the officers and assistant State’s Attorney that he left their home and when he called home an hour later Blanchard said the trick was gone but that he had beaten her up. Santopadre testified that the defendant explained how he had come home and argued with Blanchard about bringing a trick home. He told the officers he had argued also about how much money she had made and he admitted beating her several times with his fists.

On cross-examination he admitted that he did not know if the mark on the wall was blood. He admitted that he did not include in his report that the defendant hit Blanchard with his fists. He testified that, when he first saw the defendant at approximately 11 p.m. on December 8, the defendant appeared to have been drinking but he was coherent.

On the second day of trial, the prosecutor told the judge that he intended to call Officer O’Meara as a witness and that O’Meara had additional reports that the prosecutor did not realize existed until that very morning. The officer’s report was given to the defense attorney, who moved to re-open the motion to suppress hearing based on new information. The defense attorney stated that the new report indicated that when police tried to give defendant his Miranda rights such “attempts *** were to no avail.” The court agreed to hear arguments on the motion at a later date after defendant’s counsel was permitted to make an offer of proof.

Dr. Shaku Teas, from the Cook County medical examiner’s office, testified about an autopsy she had done on Blanchard. She authenticated several photos of Blanchard’s body and explained that Blanchard had multiple bruises and internal hemorrhaging from head to toe and fractures on several ribs and bones. She testified that the burn marks on Blanchard’s body were consistent with burns that would occur after someone had died and a flammable liquid was poured on her body. She testified that Blanchard’s blood tested positive for cocaine and another cocaine by-product. She testified that in her opinion Blanchard did not die of carbon monoxide inhalation but instead died from multiple blunt force injuries.

On cross-examination Teas denied that a person could die from a fire and not show some carbon monoxide in the blood and soot in the trachea. She conceded that the other injuries to Blanchard besides the burns could have occurred in the 24-hour period before Blanchard’s death.

Officer Timothy O’Meara, an arson investigator, testified that he and his partner went to defendant’s home December 8 at approximately 9 p.m. He testified that the burn patterns on Blanchard’s body indicated that a flammable liquid was poured on her body because there were no combustible materials on her body such as clothing or paper. He said the burn marks on her body appeared to him to show a pattern indicating that a flammable liquid was poured on her body and dripped down by the force of gravity. He testified that no burn marks appeared on her hands or her face, including facial hair and nasal cavity. He testified that if there was an explosion while she was alive, Blanchard would have breathed in hot gas or flames and she would have burned her eyelashes and eyebrows. He testified that he believed the burns occurred while Blanchard’s body was lying on her back. He testified that the room showed no evidence that a fire occurred or that pieces of glass flew around the room from an explosion. He testified that in his opinion the burns on Blanchard’s body occurred after her death when a flammable liquid was poured on her and it was ignited. On cross-examination O’Meara admitted that he could not determine the degree of the burns. He testified that he believed alcohol is a clean-burning substance.

The defendant’s motion for a directed finding was denied.

RENEWED MOTION TO SUPPRESS

At this point the defense renewed its motion to suppress defendant’s oral statements and three-page statement, as written out by Assistant State’s Attorney Kinnerk. Defense counsel argued that the newly discovered police report by the arson investigator, O’Meara, indicated that the arresting officers told O’Meara they attempted to interview the defendant at the scene after they gave him his Miranda rights but they were not able to interview him because of his condition. Defense counsel argued that the report indicated that defendant refused to provide information to the officers, a right under the fifth amendment. Defense counsel argues that was further evidence that the defendant was not able to appreciate the meaning of the Miranda rights and could not have knowingly and intelligently waived his right.

The State objected to the reconsideration of the motion to suppress, arguing that O’Meara’s report simply related what the arresting officers had told him. The State argued that the defense had full access to the arresting officers and disclosure of the arresting officers’ reports prior to trial. In addition, the State argued that the first of the four statements by defendant was given to police approximately three hours after his arrest. The State argued that O’Meara’s report offered no new information and therefore the defendant’s motion should be denied.

In ruling, the trial judge stated that the arresting officers testified at the suppression hearing and defense counsel had an opportunity to cross-examine them with regard to the defendant’s condition. The judge found the additional information cumulative and denied defendant’s motion to reconsider his ruling on the suppression of defendant’s statements.

RENEWED MOTION FOR NEW COUNSEL

Before the defense put on its case, the defendant asked the court if he could represent himself. He informed the court that he had filed a complaint against his attorney with the Attorney Registration and Disciplinary Commission (ARDC) two weeks before the trial began. The trial judge ordered defense counsel to present written motions for defendant’s requests for exhumation of Blanchard’s body and an additional expert witness pathologist. The court stated that it would consider those motions in 10 days, April 9, along with defendant’s motion for a new attorney.

On April 9 the court considered the motions prepared for defendant. Defense counsel acknowledged receipt of a letter from the ARDC on March 24, after the trial began, which stated that no further action would be taken on defendant’s complaint. The trial judge denied the defendant’s motions to exhume the body and to appoint an expert witness.

The judge denied defendant’s motion to appoint substitute or additional defense counsel, noting that the motion was made after the State had rested its case in chief.

TRIAL IS COMPLETED

Officer Bogucki was the only witness to testify for the defense. Bogucki testified that he was at defendant’s residence on December 8 and interviewed Rose Fanaras, a neighbor who lived a floor above defendant. He testified that she told him she heard no noise coming from defendant’s apartment between 3:30 and 5 a.m. but she did hear arguing and thumping on the walls off and on between 5 and 9:30 a.m.

The parties stipulated that if another doctor from the medical examiner’s office was called he would testify that a toxicology report on Blanchard’s blood showed the presence of cocaine and a cocaine byproduct.

After closing arguments the trial judge found defendant guilty of first degree murder. Defendant was sentenced to 25 years in prison and appeals.

Initially we consider whether the indictment was properly amended prior to trial. Before the trial began, the court permitted the State to amend the indictment against defendant to omit the word “fists” from the charged offenses. Defendant contends that the amendment was a material alteration to the charges against him and therefore the change was not a mere formality. Statute provides that an indictment may be amended by motion by the State's Attorney or defendant at anytime because of formal defects, including the presence of any unnecessary allegation. Ill. Rev. Stat. 1989, ch. 38, par. 111-5.

Defendant alleges that the change was material because the initial indictment required proof beyond a reasonable doubt that defendant not only caused Blanchard’s death, but also caused her death by his fists.

Defendant admits that he did not object to the amendment at the time of trial and therefore generally his objection to the State’s amendment would be waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Defendant argues, however, that since he is claiming ineffective assistance of counsel, such a waiver cannot be assumed to be trial strategy. We reject this contention, however, and rely on People v. Jones (1987), 162 Ill. App. 3d 487, 491, 515 N.E.2d 471, where the court found that a similar amendment was permissible where the defendant was adequately advised of the charges against him.

An indictment may not be broadened by amendment except by the grand jury in order to protect individuals from being prosecuted for a different offense than the one charged. (People v. Kincaid (1981), 87 Ill. 2d 107, 124, 429 N.E.2d 508.) We agree with the State, however, that in this case the amendment to defendant’s indictment was formal in nature and permissible because it did not change or broaden the scope of the offense charged. People v. McKendrick (1985), 138 Ill. App. 3d 1018, 1027, 486 N.E.2d 1297.

We find defendant was apprised of the charges against him from the outset and was not prejudiced or surprised by the amendment so as to warrant reversal. (People v. McBrien (1986), 144 Ill. App. 3d 489, 495, 494 N.E.2d 732.) We find no error in permitting the amendment to the indictment.

Next we consider whether the State violated its duty to tender discovery prior to trial. Defendant contends that the State failed to comply with Supreme Court Rule 412(f), which requires that the State disclose, upon request by defendant, all material and information relevant to the accused and the offense charged, ensuring that a sufficient flow of information is maintained between the various investigative personnel and its office. 107 Ill. 2d R. 412(f).

Defendant contends that the State’s failure to timely tender Officer O’Meara’s police report was a violation of the discovery rule because the prosecutor should have determined O’Meara’s report existed and then turned it over to the defense. Defendant argues that its preparation for the hearing on the motion to suppress would have been “more thorough” and notes that O’Meara was listed on the State’s potential witness list.

The State argues that any information in O’Meara’s report was cumulative and therefore its omission was nonprejudicial to defendant. O’Meara’s report was based on information told to him by the two arresting officers, the same officers who testified at the suppression hearing. The State contends that the evidence against defendant is overwhelming and that this cumulative evidence would not have altered the outcome of the trial.

The suppressed evidence must be unknown to the defense and that omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt, whether or not the additional evidence is considered, there is no justification for a new trial. People v. Bouskct, (1983), 118 Ill. App. 3d 595, 600, 455 N.E.2d 257.

The State also argues that it never possessed the evidence in question. Defendant must establish that he requested the evidence in question and that the State possessed the evidence yet failed to disclose it. (People v. House (1990), 141 Ill. 2d 323, 387, 566 N.E.2d 259 (State under no duty to discover and disclose the nurse’s notes).) Failure to make this showing ends the analysis, and there is no need to consider the favorability or materiality of the undisclosed evidence. People v. Guest (1986), 115 Ill. 2d 72, 87, 503 N.E.2d 255.

The trial judge found the additional information from O’Meara was cumulative because the arresting officers testified at the suppression hearing and defense counsel had an opportunity to cross-examine them with regard to the defendant’s condition. Although the State has a continuing obligation to disclose materials such as police reports prepared by officers who are expected to testify, we believe the suppression of this report was not a violation of defendant’s due process rights because the evidence was not material or favorable to defendant’s case. Guest, 115 Ill. 2d at 87.

Next we consider whether defendant effectively waived his Miranda rights and whether the trial judge erred in denying defendant’s motion to suppress statements he made to police officers and an assistant State’s Attorney.

Defendant contends that he did not knowingly and intelligently waive his Miranda rights and that, therefore, the trial judge erred in denying his motion to suppress the three oral statements and one written statement by defendant. Defendant contends that his testimony was uncontradicted when he said he was jittery, drowsy and confused when he made the statements. Defendant contends that the trial judge did not consider this evidence when he determined that defendant made a knowing, intelligent and voluntary waiver of his Miranda rights.

Defendant cites in support People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958. The court in Bernasco analyzed when a waiver of Miranda rights is knowing and intelligent in situations where there is no police coercion but the defendant’s mental ability or mental state is in question. The court in Bernasco stated:

“If intelligent knowledge in the Miranda context means anything, it means the ability to understand the very words used in the warnings. It need not mean the ability to understand far-reaching legal and strategic effects of waiving one’s rights, or to appreciate how widely or deeply an interrogation may probe, or to withstand the influence of stress or fancy; but to waive rights intelligently and knowingly, one must at least understand basically what those rights encompass and minimally what their waiver will entail.” Bernasco, 138 Ill. 2d at 363.

Defendant contends that his drinking and drug use prior to his arrest affected his ability to waive his Miranda rights. He contends the trial judge failed to give proper consideration to this fact.

The State argues that intoxication cannot be used as a defense in this case. A person’s statement will be suppressed on the ground of intoxication or drug use only if, when the statement was made, the person was so grossly intoxicated as to be incapacitated. Lesser degrees of intoxication or drug use go merely to the weight to be given to the confession. (People v. Matthews (1990), 205 Ill. App. 3d 371, 409, 562 N.E.2d 1113.) The State contends that defendant’s testimony as to his level of intoxication does not rise to the level of incapacitation.

The State argues also that it is the defendant’s burden to show that his waiver was not knowing, intelligent and voluntary once the State presents a prima facie case. (People v. Smith (1990), 199 Ill. App. 3d 839, 846, 557 N.E.2d 596.) A prima facie case of waiver is established if the State produces evidence that the defendant was properly admonished and that, after being admonished, he waived his right to assistance of counsel. Smith, 199 Ill. App. 3d at 846.

We find the State presented prima facie evidence of defendant’s knowing and intelligent waiver and that defendant failed to rebut that evidence. Though it is true that defendant was passed out and had to be awakened at the time of his arrest, defendant’s first statement to police came three hours after his arrest. Subsequent statements were given more than 24 hours after his arrest and after he had been fed and slept. At the suppression hearing, two officers and the assistant State’s Attorney all testified that defendant appeared lucid and responded properly to questioning. All three testified that they read defendant his Miranda rights and that defendant acknowledged those rights and indicated that he wanted to talk. A reviewing court will not disturb the ruling of a trial court on a motion to suppress unless the decision is against the manifest weight of the evidence. (People v. Booker (1991), 209 Ill. App. 3d 384, 391, 568 N.E.2d 211.) We find the trial judge’s decision not to suppress the statements was not against the manifest weight of the evidence.

Defendant poses three interdependent questions which encompass his claim of ineffective assistance of counsel: (1) whether the trial judge erred in denying the appellant’s motion for substitution of counsel; (2) whether defendant’s trial counsel properly assisted defendant ■with his burden of production; and (3) whether defendant and his court-appointed attorney had a conflict of interest prior to the commencement of trial.

Defendant argues that a conflict existed between him and his attorney as soon as he expressed dissatisfaction with his counsel prior to trial. He said that conflict was further established when defendant and his counsel disagreed over the motion to exhume the body and the motion for an additional expert pathologist. Defendant contends the trial judge should have taken action before trial but erred in waiting until the final day of trial, April 9; a point where the court felt compelled to deny the motion and finish the trial.

In addition, defendant contends that his counsel’s failure to obtain an expert on cocaine addiction to testify at the suppression hearing is evidence that his counsel failed to properly “develop” the relevant issues at his suppression hearing. Defendant cites to a magazine article about cocaine but that authority is not part of the trial record and is not properly before this court and thus had no relevance to this appeal.

The State argues that defendant made no showing of good cause for substitution of counsel and therefore he was not prejudiced by the court’s denial of his pretrial motion for new counsel. The State contends that defense counsel’s decision to call or not call for an expert witness and in filing a motion to exhume Blanchard’s body were trial strategy and therefore not the proper subject for review on a claim of ineffective assistance of counsel. A court may refuse to appoint new counsel where a defendant’s claim is spurious or is a matter of trial strategy or tactics. (People v. Brandon (1987), 157 Ill. App. 3d 835, 847, 510 N.E.2d 1005.) A trial court’s decision will not be overturned on appeal unless manifestly erroneous. Brandon, 157 Ill. App. 3d at 847.

Finally, defendant contends that when his trial counsel failed to raise the issue of ineffective assistance of counsel in the motion for a new trial, “the appointment of independent counsel was mandated.” Defendant cites in support People v. Washington (1989), 184 Ill. App. 3d 703, 540 N.E.2d 1014, and People v. Harris (1990), 195 Ill. App. 3d 507, 552 N.E.2d 1078, which review when the trial judge should appoint independent counsel to consider a defendant’s post-trial claim of ineffective assistance of counsel. Both cases rely on People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, and/or People v. Krankel (1984), 102 Ill. 2d 181, 189, 464 N.E.2d 1045, for support.

The court in Jackson, relying on Krankel and People v. Johnson (1981), 98 Ill. App. 3d 228, 424 N.E.2d 610, explained how a court should handle defendant’s post-trial motion claiming ineffective assistance of counsel:

“The trial court should examine the factual matters underlying the defendant’s claim. *** If the claim goes to matters of trial tactics or strategy, the defendant’s claim should be found spurious and his request for new counsel denied. This was the case in Johnson. If, however, the factual matters show possible neglect of the defendant’s case, the court should appoint new counsel who can undertake an independent evaluation of the defendant’s claim and present the matter to the court from a detached, yet adversarial, position. This was the case in Krankel, where defendant alleged that his attorney failed to interview an alibi witness.” Jackson, 131 Ill. App. 3d at 139.

Though the opinion was published in the middle of defendant’s trial in this case, the Illinois Supreme Court has approved of the Jackson court’s interpretation of Krankel in People v. Nitz (1991), 143 Ill. 2d 82, 572 N.E.2d 895, and more recently in People v. Williams (1991), 147 Ill. 2d 173, 250-51. In Williams the court stated that a pro se motion for a new trial alleging ineffective assistance of counsel does not per se require appointment of new counsel. The court noted that “[o]nly if the allegations show possible neglect of the case *** should new counsel be appointed.” Williams, 147 Ill. 2d at 251.

In defendant’s case, defendant has not made allegations that would establish “possible neglect” of his case by defense counsel as required under a Williams standard. Before trial, defendant moved for new counsel because he believed his counsel had not consulted with him enough. The defense attorney, however, stated that he had spoken to his client. The court denied defendant’s request for new counsel. A second request for new counsel came at the close of the State’s case when defendant was angered that his counsel would not offer his two motions to the court. The court denied that motion too after considering defendant’s two motions filed pro se. Defendant has offered no explanation why the exhumation would benefit his case. Defendant has not indicated any other facts to indicate a “possible neglect” of his case which would warrant appointment of new counsel under the standards articulated in Williams.

The State contends that defendant’s claim should be analyzed under the standards established in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. In Strickland the court stated that, in order to establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was so deficient that it fell below an objective standard of reasonableness and that the performance prejudiced the defense of the case. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) The Strickland standard was adopted by the Illinois Supreme Court in People v. Al-banese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

The record establishes defense counsel provided effective representation under the standards articulated in Strickland. Defense counsel moved to suppress statements defendant made before trial. When O’Meara’s report was obtained during trial, defense counsel moved to reopen the motion to suppress. At trial, defense counsel aggressively cross-examined the State’s witnesses. Defense counsel’s decision not to file motions seeking an expert pathologist and an order exhuming the body appears to be trial strategy. Defense counsel is not required to make futile motions or objections in order to provide effective assistance. (People v. Smith (1988), 172 Ill. App. 3d 94, 111, 526 N.E.2d 849.) Under a Strickland standard, defendant has presented no evidence to establish that his counsel’s conduct was so deficient that it fell below an objective standard of reasonableness. We find defendant received effective assistance of counsel.

Finally we consider whether the trial judge erred in denying defendant’s motion for an expert witness.

After the trial judge denied defendant’s motion for a directed verdict, he then denied defendant’s pro se motion for a pathologist. Defendant had challenged Dr. Teas’ qualifications and her results on the autopsy she performed. The trial judge found Teas qualified to testify as an expert. Defendant contends that when he, as an indigent defendant, contests the cause of death in a murder trial, “due process of law requires that he have the benefit of expert testimony.” To support this argument, defendant cites to Williams v. Martin (4th Cir. 1980), 618 F. 2d 1021, 1026 (Equal protection clause requires the government to provide an indigent defendant with the assistance of an expert when a substantial question exists over an issue requiring expert testimony for its resolution and the defendant’s position cannot be fully developed without professional assistance).

The State contends that the trial judge’s ruling was proper because the defendant did not demonstrate diligence in procuring the expert and did not offer proof of the expert’s anticipated testimony. The State argues further that the testimony of another pathologist would have been cumulative. Finally, the State argues that it presented overwhelming evidence of defendant’s guilt at trial and the testimony of the expert would not have affected the outcome of the trial.

Granting or denying a continuance to locate a witness is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (People v. Amos (1990), 204 Ill. App. 3d 75, 83, 561 N.E.2d 1107.) The denial of a motion to continue is not an abuse of discretion where the anticipated testimony would be confined to collateral matters and would not have affected the outcome of the trial. People v. Watts (1990), 195 Ill. App. 3d 899, 917, 552 N.E.2d 1048.

We find defendant has not offered evidence to establish that another pathologist would have provided conflicting evidence at trial. Defendant’s challenge to Teas’ credentials does not go to the question of how Blanchard died but instead goes to whether the court will accept Teas as an expert witness. Again defendant has offered this court no reason why another pathologist would testify differently. We find no abuse of discretion by the trial court and therefore affirm the trial court’s denial of defendant’s motion for an expert witness.

Therefore, we affirm defendant’s conviction for first degree murder and his sentence of 25 years.

Affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.