text:
    (Nos. 50012, 50534 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ALBERT BERLAND et al., Appellees.

      Opinion filed Dec. 4, 1978.
    Supplemental opinion filed on denial of rehearing Feb. 20, 1979.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay, Assistant Attorney General, of Chicago, Lee T. Hettinger and Joan S. Cherry, Assistant State’s Attorneys, of counsel), for the People.
    Harry J. Busch and Sherman C. Magidson, of Chicago, for appellee Albert Berland.
    Richard T. Franch and Eugene R. Wedoff (Jenner Sc Block, of Chicago, of counsel), for appellee Louis Wolf.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendants, Louis Wolf and Albert Berland, were convicted of arson with intent to defraud an insurer (Ill. Rev. Stat. 1969, ch. 38, par. 20—1(b)) after a joint bench trial in the circuit court of Cook County. Both were sentenced to terms of 114 to 414 years in the Illinois State Penitentiary and fined $10,000. The appellate court reversed the convictions on two grounds: that the single, retained counsel could not effectively represent the conflicting interests of the two defendants and that there was insufficient evidence of guilt to sustain the convictions. (52 Ill. App. 3d 96.) We granted the State’s petition for leave to appeal under our Rule 315 (65 Ill. 2d R. 315).

On November 19, 1969, a fire occurred in a 12-unit, three-story apartment building at 715 South Lawndale in Chicago, Illinois, owned by Berland through a land trust at the Lawndale National Bank. Firemen arrived at the scene at 11:15 or 11:30 a.m., and the fire was extinguished by about 12:30 p.m. An arson investigator from the Chicago Fire Department determined that the fire had been set. It had started when an accelerant was poured onto the floor in the bathroom or in the area between the bathroom and living room in a third-floor apartment and ignited.

Berland, through the Lawndale National Bank as trustee, initiated suit against the insurer of the building in the United States district court to recover $35,000 under the fire insurance policy. The insurance company interposed as defenses that Berland had misrepresented his fire-loss history in the insurance application and that the fire was the result of arson. The jury returned a general verdict in favor of the insurance company. The court of appeals reversed on the ground that the misrepresentations in the application were not a defense to the policy since the application was not incorporated in or attached to it. A new trial was required because the general verdict precluded determining whether the jury had accepted the misrepresentation or arson defense, and the court refused to accept the arson defense as a matter of law. Lawndale National Bank v. American Casualty Co. (7th Cir. 1973), 489 F.2d 1384.

An Illinois grand jury returned indictments against Wolf and Berland on May 11, 1973, about 314 years after the fire, while the civil case was pending on appeal in Federal court. Count I charged Wolf alone with knowingly damaging the real property of another without his consent under section 20—1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 20—1(a)). Count II charged Wolf and Berland together with knowingly damaging a building by means of fire with intent to defraud an insurer (Ill. Rev. Stat. 1969, ch. 38, par. 20—1(b)). Count III charged both defendants with conspiracy to commit arson (Ill. Rev. Stat. 1969, ch. 38, par. 8—2).

A single, retained attorney entered his appearance on behalf of both defendants. Each defendant waived jury trial on January 14, 1974. Both defendants pleaded not guilty. Berland did not testify. Wolf denied he was present at the time of the fire. During the presentation of the State’s case, attorney Jack G. Stein entered his appearance as additional co-counsel for defendant Wolf. Thereafter, at the conclusion of the People’s case, count I, charging Wolf with the burning of the building without the owner’s consent, was nol-prossed. Additional and separate counsel for each defendant appeared to present post-trial motions. A post-trial motion in arrest of judgment on the conspiracy count for both defendants was allowed on the grounds that the statute of limitations on that count had run (111. Rev. Stat. 1969, ch. 38, par. 3 — 5(b)). Judgment on the finding of guilty on the charge of arson with intent to defraud an insurer was entered.

The State introduced transcripts of depositions and testimony of Wolf and Berland from the civil case in Federal court. They were admitted pursuant to a stipulation but subject to a defense objection to references to prior fires. The trial judge correctly ruled he would consider the prior fires only if there was no remoteness and if there was a linkup between the offense in question and the prior fires, in accord with People v. Bishop (1934), 359 Ill. 112, 119-20.

The trial court also admitted into evidence a series of housing court files concerning properties found to be in violation of the Chicago housing code (Municipal Code of Chicago, ch. 78). They were admitted for the limited purpose of showing prior business relationships between Wolf and Berland in the subject and other properties, not to show prior fires. The files themselves or the testimony of Wolf and Berland in the transcripts from the Federal proceedings indicated that the properties belonged either to one of the defendants, his nominees or aliases, or those whose addresses were businesses owned by Wolf.

In 1966 defendant Wolf had negotiated the purchase of the building at 715 South Lawndale for Berland. Berland had introduced Wolf to the seller as the prospective purchaser and identified himself as the broker. Wolf purchased the property in his name and transferred it to Berland as his nominee. Title was placed in a land trust established by Berland. At one point Wolf’s nephew was given an interest in the property as collateral for a loan by Wolf to Berland. The interest was returned to Berland when the loan was paid. “Fred Cooper,” an alias used by Berland, was listed as the beneficiary of the land trust at one time. The addresses given for “Fred Cooper” were two of Wolf’s business addresses.

Wolf helped manage the property by selecting tenants and collecting rent. He was frequently present in the vicinity of the building. Wolf examined its physical condition, ordered coal for it, and referred contractors to Berland.

In June 1969 Berland applied for fire insurance on the property. The application was purportedly notarized at Wolf’s office by Maurice Blumenthal on June 20, 1969. Blumenthal had died in a car accident in September of 1968, and the date noted for the expiration of his notary’s commission was in error. The application contained a false, negative answer to a question requesting “the applicant’s 5 year loss record for fire.” Insurance coverage in the amount of $100,000 was issued on August 13, 1969, by the American Casualty Company. Berland introduced testimony that under the policy he was required to insure the building for $100,000; that was 80% of the “actual cash value” of the structure, which is measured by replacement cost less depreciation of up to 50% of that cost rather than by market value or purchase price. Berland paid $18,000 for the building and spent approximately $29,000 on repairs.

Prior to the fire the building was two-thirds vacant. Rent revenues had fallen from $650 per month to $250 per month. The building had been cited for 35 violations of the Municipal Code of Chicago. The building was losing money, and Berland had tried to sell it on contract on three occasions. The purchasers reneged.

Albert Kyles was across the street from 715 South Lawndale on the morning of the fire. He observed two white men drive up to the building in a dark station wagon at around 9 or 10 a.m. and park in front of the building. The building was in a largely black neighborhood. One man carried a ladder to the building; the other carried a red gas can. Judging from the way the man walked, the can was full when he entered the building and empty when he left. The men remained in the building for three to four minutes. Shortly after the men left, Kyles saw smoke coming out of the building.

Kyles identified defendant Wolf as the man carrying the gas can. Kyles had seen Wolf on three or four prior occasions at a paint store and another time when he paid Wolf the $130 rent on an apartment his aunt had leased at 715 South Lawndale.

Evelyn Mayberry saw a dark station wagon drive up to 715 South Lawndale on November 19, 1969. Two white men sat in the car for a while apparently looking to see if anyone was coming. She saw one man take a ladder out of the car. A second man took a silver-colored gasoline can from the back of the station wagon. Ms. Mayberry identified the second man as defendant Wolf, whom she had seen on several previous occasions. He had walked around to the back of the building at 715 South Lawndale on the Sunday prior to the fire. On Monday, he removed the locks from the front door. On Tuesday he drove past the building several times. On Wednesday, Wolf entered the building with the gas can between 9:30 and 10 a.m. Ms. Mayberry went grocery shopping, and when she returned she learned there had been a fire at 715 South Lawndale.

Wolf testified on his own behalf. He stated he owned a station wagon in 1969. Three alibi witnesses testified on behalf of Wolf that they had had a meeting with him on the morning of the fire. Attorney Samuel Siegel testified Wolf was with him from 9:15 a.m. to 1:30 p.m. on November 19, 1969, and that he and Wolf had lunch together. He had no independent recollection of the meeting until he looked at his appointment calendar. The calendar, however, contained no indication of a meeting with Wolf on that day. It indicated only that Siegel had a 12:30 p.m. appointment with a client named Grosso. It did note a meeting with Wolf both two days before and two days after November 19. Ted Allen testified he saw Wolf in Siegel’s office on November 19, 1969, and had lunch with Wolf. He had not remembered this meeting until he met with Siegel, Wolf, and the third alibi witness on the morning of the day he testified. The third witness, Anton Caithaimer, testified he saw Wolf at Siegel’s law office between 9 a.m. and 1 p.m. on November 19, 1969. He had a cup of coffee with Wolf and Allen at about 12 p.m. Impeachment evidence consisting of time and pay records indicated Caithaimer was teaching school at that time on that day. He had been absent two days earlier.

The appellate court held that since Wolf was charged in count I with burning the building without Borland’s consent, it was impossible for a single attorney to represent both defendants. It noted that the trial court should have perceived that there existed the possibility of conflicting defenses, thus it was incumbent upon the trial court to raise the issue sua sponte with respect to both defendants.

A defendant must show an actual conflict of interest manifested at trial in order to prevail in a constitutional claim of ineffective assistance of counsel due to joint representation of co-defendants by a single attorney. (People v. Durley (1972), 53 Ill. 2d 156, 159-61; People v. McCasle (1966), 35 Ill. 2d 552, 556; People v. Somerville (1969), 42 Ill. 2d 1, 9.) Other jurisdictions concur in this position (see United States v. Mandell (7th Cir. 1975), 525 F.2d 671, 677, cert. denied (1976), 423 U.S. 1049, 46 L. Ed. 2d 637, 96 S. Ct. 774; United States v. Lovano (2d Cir. 1970), 420 F.2d 769, 773; United States v. Boudreaux (5th Cir. 1974), 502 F.2d 557, 558; United States v. LaRiche (6th Cir. 1977), 549 F.2d 1088, 1095, cert. denied (1977), 430 U.S. 987, 52 L. Ed. 2d 383, 97 S. Ct. 1687; United States v. Christopher (9th Cir. 1973), 488 F.2d 849, 851; State v. Jeffrey (1973), 163 Mont. 92, 96, 515 P.2d 364, 367; cf. United States v. Smith (10th Cir. 1972), 464 F.2d 194, 197 (holding there must be prejudice)), although there is no consensus as to how strong a showing of conflict is required to establish a denial of the right to counsel. See Holloway v. Arkansas (1978), 435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98 S. Ct. 1173, 1178.

The record is devoid of any evidence of an actual conflict of interest. Berland argues that count I was an indicium of a fundamental conflict which could not be cured by the fact that the count was nol-prossed. He argues that because a single attorney represented both defendants he could not prepare and try the case to show that Wolf was motivated to bum the building without Berland’s assent. Wolf concurs that joint representation precluded the implementation, of each defendant’s interest in placing exclusive blame on the other.

These arguments are no different from those which can be raised in any instance of dual representation, yet joint representation of co-defendants is not per se unconstitutional (Holloway v. Arkansas (1978), 435 U.S. 475, 482, 55 L. Ed. 2d 426, 433, 98 S. Ct. 1173, 1178; see People v. Durley (1972), 53 Ill. 2d 156, 160; United States v. Mandell (7th Cir. 1975), 525 F.2d 671, 677). The defendants merely speculate and attempt to create a conflict of interest through conjecture as to what might have been shown. They point to no actual conflict, and the record reveals none. This court will not disturb a judgment on the basis of hypothetical conflicts. People v. McCasle (1966), 35 Ill. 2d 552, 556; see also Kruchten v. Eyman (9th Cir. 1969), 406 F.2d 304, 311; State v. Jeffrey (1973), 163 Mont. 92, 97, 515 P.2d 364, 367.

Both defendants denied their guilt. Berland entered a simple denial. Wolf presented an alibi. There was no inconsistency in these defenses. Defense counsel effectively cross-examined the eyewitnesses who testified directly against Wolf by questioning the accuracy of their testimony. Count I was nol-prossed before the defense presented its evidence, thus removing any abstract possibility of conflict. Further, separate co-counsel appeared for Wolf before the close of the State’s case. The record revealed no basis for either defendant to assert that the other alone burned down the building. The two men were longtime friends. Even after the fire they chose to be represented by the same counsel. The facts are analogous to those in People v. McCasle (1966), 35 Ill. 2d 552, where this court found it proper for a single attorney to represent both defendants. McCasle asserted on appeal that his co-defendant might have committed the robbery alone or with someone else, but the record contained no evidence to support such a theory. There was no inconsistency in their defenses. Both defendants denied knowing one another and presented alibi defenses.

People v. Ware (1968), 39 Ill. 2d 66, illustrates an instance of conflict, in contrast to facts here. A single attorney was appointed to represent two defendants. One pleaded guilty and testified against the other. There was a complete antagonism between the defendants mandating a reversal of the conviction. In United States v. Gaines (7th Cir. 1976), 529 F.2d 1038, a conflict of interest developed when defense counsel failed to call Gaines as a witness. The failure to call Gaines prevented him from retracting his withdrawn confession which had been introduced without the names of the co-defendants whom Gaines had implicated. It also served to protect his co-defendants, who counsel had represented through part of the proceedings, from the consequences of a cross-examination of Gaines concerning his confession which had implicated them.

The recent decision by the United States Supreme Court in Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173, does not preclude joint representation. The court held that where, unlike here, appointed defense counsel raises the risk of a conflict of interest, the failure of the trial court to appoint separate counsel or take adequate steps to ascertain whether the risk was too remote to warrant separate counsel deprives the defendants of their right to the assistance of counsel. This was based on the rationale in Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457. There the court held that for a trial judge to insist upon joint representation in the face of objection undermines the general duty of the trial court to see that the trial is conducted with solicitude for the essential rights of the accused. In Glasser the trial court appointed an attorney retained by Glasser to represent his co-defendant over Glasser’s objection. Actual instances of conflict appeared during the course of the trial.

By contrast, counsel here was not foisted upon either defendant. Nor does the record reveal any actual conflict. Each defendant selected and retained the trial counsel to represent him. No objection was made to joint representation until after conviction even though additional counsel represented Wolf prior to motions at the close of the State’s case. See People v. Somerville (1969), 42 Ill. 2d 1, 9; State v. Jeffrey (1973), 163 Mont. 92, 97, 515 P.2d 364, 367.

People v. Stoval (1968), 40 Ill. 2d 109, People v. Kester (1977), 66 Ill. 2d 162, and People v. Coslet (1977), 67 Ill. 2d 127, relied upon by the defendants are not controlling. None involved joint representation of two defendants by a single attorney, and there, unlike here, actual conflicts due to competing commitments by the defense attorney to other current or former clients existed. In People v. Stoval counsel and his law firm represented the owner of the jewelry store the defendant was charged with burglarizing. In People v. Kester counsel, prior to becoming defense attorney, had worked on the case as a prosecutor. In People v. Coslet counsel represented both the defendant who had been charged with murdering her husband and the administrator of the husband’s estate. A conflict arose since the estate stood to benefit from a conviction. Furthermore, all three cases involved appointed counsel, rather than retained counsel as here, demanding even closer scrutiny for conflicting interests (People v. Stoval (1968), 40 Ill. 2d 109, 113; People v. Coslet (1977), 67 Ill. 2d 127, 133; People v. Kester (1977), 66 Ill. 2d 162, 166).

This court adopted a per se conflict of interest rule in People v. Stoval (1968), 40 Ill. 2d 109, 113, which provides that if an attorney’s commitments to others undermine his loyalty to the defendant’s interest, it is unnecessary to allege and prove prejudice to sustain a finding of a violation of the right to counsel. In formulating that rule this court relied upon Glasser v. United States (1942), 315 U.S. 60, 75-76, 86 L. Ed. 680, 702, 62 S. Ct. 457, 467, where it was said:

“To determine the precise degree of prejudice sustained *** is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”

Glasser of course concerned an instance of enforced dual representation of defendants with actual conflicting interests. The record here, however, reveals no actual conflict; thus it is unnecessary to apply the per se rule. See also People v. Ware (1968), 39 Ill. 2d 66, 68.

Wolf argues that upon the appearance of a possible conflict it is necessary for the trial court to inquire into the nature of the potential conflicts. Some jurisdictions require the trial court to admonish all jointly represented co-defendants about the possible conflicts inherent in dual representation and to inquire whether each defendant has voluntarily and with full knowledge of the consequences decided to accept such representation. If such inquiry is not made, the prosecution must show beyond a reasonable doubt that a prejudicial conflict of interest did not exist to avoid reversal of the convictions for lack of assistance of counsel. (See Ford v. United States (D.C. Cir. 1967), 379 F.2d 123, 125, relying on Lollar v. United States (D.C. Cir. 1967), 376 F.2d 243, 247; State v. Olsen (Minn. 1977), 258 N.W.2d 898, 907-08; cf. United States v. Lawriw (8th Cir. 1977), 568 F.2d 98, 104-05 (placing duty on a trial court to make inquiry but holding that a presumption of prejudice does not arise if the trial court fails to make inquiry and refusing to shift the burden to the prosecution); United States v. Foster (1st Cir. 1972), 469 F.2d 1, 5 (placing duty of inquiry on the court but only shifting burden of persuasion to the prosecution to show that the existence of prejudice was improbable where inquiry was not made).) At the opposite end of the spectrum, the Seventh Circuit Court of Appeals holds only that the trial court should be watchful for indicia of conflict during trial. Only when an actual conflict appears is it necessary for the trial court to bring the fact of its existence to the attention of the defendant. (United States v. Mandell (7th Cir. 1975), 525 F.2d 671, 677; United States v. Gaines (7th Cir. 1976), 529 F.2d 1038, 1043-44.) Other jurisdictions take intermediary positions short of requiring judicial inquiry in all cases of joint representation. See United States v. Lawriw (8th Cir. 1977), 568 F.2d 98, 102-03, and cases cited therein; State v. Jeffrey (1973), 163 Mont. 92, 98, 515 P.2d 364, 368 (suggesting it would be wise to make such inquiry).

This court has refused an invitation to require trial judges to ascertain that co-defendants’ decisions to proceed with one attorney are informed (People v. Somerville (1969), 42 Ill. 2d 1, 10). The crucial determination is whether there is a conflict, since absent such conflict there is no threat to a defendant’s right to the assistance of separate counsel. Neither Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457, nor Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173, indicate that a pretrial inquiry and waiver of separate counsel is mandated in all cases of joint representation. Because joint representation is not per se unconstitutional there is no need to require judicial inquiry until the conflict appears. The language in Glasser and Holloway that it is the duty of the trial judge to see that the trial is conducted with solicitude for the essential rights of the accused is directed specifically to trial court insistence upon joint representation where counsel or the defendant has requested separate representation. Since there was no conflict here, judicial inquiry was not required.

The appellate court concluded there was insufficient evidence to support the convictions. On the basis of the record before us, we do not agree.

Wolf challenges the weight and credibility of the testimony of the two eyewitnesses. However, in a bench trial it is the province of the trial court to determine the credibility and weight of the testimony, to resolve the inconsistencies and conflicts therein, and to render its decision accordingly. This court will not substitute its judgment on these matters unless the proof is so unsatisfactory that a reasonable doubt of guilt appears. The trial court, unlike the reviewing court, was in a position to observe the witnesses. People v. Pagan (1972), 52 Ill. 2d 525, 534; People v. Lofton (1977), 69 Ill. 2d 67, 72-73.

The testimony of the two eyewitnesses was largely consistent both internally and when compared with the testimony of the other eyewitness. Both eyewitnesses agreed they saw two men enter the building between 9 and 10 a.m. One man, whom they identified as Wolf, carried a gas can into the building. Both had seen Wolf on several prior occasions lending further credence to their identification of him. Both identified Wolf in court. There were some inconsistencies in the testimony. Kyles said the gas can was red. Ms. Mayberry said it was silver colored. There was some confusion concerning the amount of hair Wolf had on the day of the fire as well as a discrepancy in the testimony about the relative heights of the two men who entered the building. However, it is established that “[a] conviction will not be set aside merely because the evidence is contradictory.” (People v. Guido (1962), 25 Ill. 2d 204, 208; see also People v. Akis (1976), 63 Ill. 2d 296, 298-99; People v. Pagan (1972), 52 Ill. 2d 525, 533-34.) The trial judge, in handing down his decision, stated that he was impressed by the credibility of the eyewitnesses and noted that they had no reason whatsoever to lie. We perceive no basis to disturb the findings of the trial court.

The strength of the eyewitness testimony was not diminished by Wolf’s alibi defense witnesses. The alibi witnesses’ testimony was thoroughly impeached. Ted Allen had no recollection of the date of the meeting until he spoke with Wolf, Caithaimer, and Siegel on the day he testified. Siegel had no independent recollection of the meeting until he looked at his appointment calendar, but the calendar did not note a meeting with Wolf on that day. Caithaimer was teaching school when he testified he was meeting with Wolf. Siegel testified contrary to Caithaimer and Allen concerning who had lunch with Wolf. The trial judge was not obligated to believe the testimony of the alibi witnesses over the positive identification of the accused. (People v. Jackson (1973), 54 Ill. 2d 143, 149; People v. Catlett (1971), 48 Ill. 2d 56, 64.) Whether the alibi evidence created a reasonable doubt of guilt was a question primarily for the trial court (People v. Garkus (1934), 358 Ill. 106, 111-12), and here the trial judge indicated the alibi evidence did not convince him that the alleged meeting took place.

The appellate court placed undue emphasis on People v. Gardner (1966), 35 Ill. 2d 564, 571-73. It is clearly factually distinguishable. There, as here, guilt hinged upon the conflict between the strength of the identification testimony and the strength of the alibi defense. In such cases, the alibi evidence cannot be ignored. However, this court noted that the testimony of a single witness that is positive and credible is sufficient to convict even if it is contradicted by the accused. In that case the identification of the defendant by the complaining witness was weakened by several factors, including inconsistent descriptions of the defendant and the lack of a lineup when the defendant was first identified, while the defendant’s alibi was positive and unimpeached. Also, the alibi was not a recent concoction. By contrast the identification here was strong, and the alibi was impeached. Further, the alibi defense was of recent origin. The defense did not explore it until after trial began and several years after the incident.

Wolf argues that the testimony of Mayberry and Kyles is inherently incredible and, therefore, is insufficient to support a conviction. He cites People v. Dawson (1961), 22 Ill. 2d 260, 265-66. In that case the witnesses testified that a police officer went into a hotel taxi office where he was well known and demanded money from a driver at gunpoint in the presence of many witnesses after identifying himself as a police officer. He then remained in the hotel and had a drink at its bar. The witnesses here did not recount a blatantly preposterous story. They testified that two men entered a building. One man carried a gas can, and the other carried a ladder. They were men who had been seen working around the building on prior occasions. Their conduct, therefore, was not extraordinary like the alleged conduct of the defendant in Dawson.

Wolf also challenges the identification testimony by Mayberry and Kyles on the grounds that it was suggested by a mug shot of Wolf shown to them before trial. He did not challenge the photographic procedure prior to trial. The witnesses were shown this picture in connection with the civil trial in the United States district court by an attorney for the insurance company before Wolf was indicted. We refrain from addressing the merits of this contention since it has been waived. People v. Pierce (1972), 52 Ill. 2d 7, 10.

Berland argues that the evidence against him was circumstantial, and therefore insufficient to support the conviction. It consisted of depositions and transcripts of proceedings from the civil case in the United States district court, housing files, the insurance application and policy, and evidence that the man who apparently notarized the application had died before the date of the application. Yet, even if the evidence was circumstantial, it is clear that it can support a conviction as long as it produces a reasonable and moral certainty that the defendant committed the crime. (People v. Fletcher (1978), 72 Ill. 2d 66, 71; People v. Williams (1977), 66 Ill. 2d 478, 484-85.) Berland and Wolf were friends and business associates for 30 to 35 years. Wolf was involved in the acquisition and management of the property for Berland. The addresses of one of Berland’s aliases, listed as a beneficiary of the land trust, were business addresses of Wolf. Wolf’s nephew was at one point named as a beneficiary as security for a loan from Wolf to Berland. The building was losing money before the fire, and Berland was trying to sell it. He was compelled to take the property back because of the failures of the purchasers to meet the contract obligations. The poor condition in which Berland maintained the building had given rise to an action in the housing court for necessary repairs. There were 35 violations of the Municipal Code of Chicago, including the presence of vermin and structural violations.

Berland’s application for fire insurance contained a false, notarized statement of his personal history of fire losses. Berland had brought the application to Wolf to have it notarized. The notary’s name and seal were those of a man who had died 9 months before the application was notarized. The evidence indicates an intent to defraud an insurance company. Berland, of course, can be accountable for the offense even though he did not physically set fire to the building (Ill. Rev. Stat. 1969, ch. 38, par. 5—2). We find there was sufficient evidence to support his conviction.

The appellate court determined that the trial court erred in admitting the housing court files on relevancy grounds because the properties were not owned by the defendants. However, all were owned either by one of the defendants or their aliases. Further, the trial court did not consider similar unexplained fires on those properties. The evidence was admitted solely to show the defendants’ business relationships in other similar types of property.

Berland contends that the trial court gave undue and prejudicial consideration to the fact that the property was insured for almost three times its initial cost and the cost of subsequent repairs. He argues also that he was prejudiced by his counsel’s failure to introduce evidence of the replacement cost of the building after presenting evidence that insurance is calculated on the basis of replacement cost rather than acquisition cost. However, as the trial court noted, the gist of the fraud was the burning of the building to collect insurance proceeds regardless of the replacement cost and whether the building was overinsured or underinsured.

Berland and Wolf each argue it was error to admit prior statements of their co-defendant. That evidence was admitted pursuant to a stipulation subject only to an objection to references to prior fires, and there is no indication in the record that the trial judge, sitting as the trier of fact, improperly considered the prior statements of one co-defendant as substantive evidence against the other. Under these circumstances there is no reason to deviate from the sound presumption that the court in a bench trial relies only on proper evidence in reaching a determination on the merits (People v. Gilbert (1977), 68 Ill. 2d 252, 258-59; People v. Pelegri (1968), 39 Ill. 2d 568, 574-75; People v. Delno (1966), 35 Ill. 2d 159, 162).

Because of its disposition of the cause, the appellate court did not reach all the issues presented to it, but as noted in Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 112-13, “it has frequently been indicated that where this court acquires jurisdiction for any reason, it has jurisdiction to pass upon all questions, except those requiring a weighing of the evidence, proper to be passed upon and disposed of in the case. (Goodrich v. Sprague, 376 Ill. 80; Bowman v. Illinois Central Railroad Co., 11 Ill. 2d 186.) Aside from considerations going to the avoidance of multiplicity of appeals, there are in our opinion unique circumstances here which, as a matter of discretion and justice, impel us to use our powers on review to the utmost and to finally dispose of the case.” These proceedings arose out of a fire which occurred in 1969 for which the defendants were indicted in 1973. The parties have briefed the remaining issues of whether retained counsel was competent and whether the State violated due process by listing the witness Mayberry twice in response to discovery, once under her own name and once under the name of her common law husband. Moreover, the record enables us to fully determine these matters. (County of Cook v. Lloyd A. Fry Roofing Co. (1974), 59 Ill. 2d 131, 138-39.) We shall therefore address these questions.

Both Berland and Wolf challenge the competency of their retained trial counsel. After an examination of the record in the instant case in light of the applicable test, we cannot say that counsel was incompetent. He conducted discovery, sought to suppress evidence, and vigorously cross-examined the State’s witnesses. Wolf also received the services of additional counsel who entered his appearance during the latter part of the presentation of the State’s case. Defendants were entitled to competent, not perfect, counsel. People v. Murphy (1978), 72 Ill. 2d 421, 438.

Wolf argues, on the basis of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, that he was denied a fair trial due to the prosecution’s failure to notify defense counsel that the witnesses Ms. Mayberry and Ms. McGowen are the same individual. The two names appeared on a list presented to the defense in response to a discovery request for a list of witnesses. The addresses under the two names were the same. The witness had used the name McGowen, her common law husband’s name, when she testified in the United States district court but used her own name, Mayberry, when she testified in the criminal action now pending.

The United States Supreme Court held in Brady that the prosecution’s suppression of a confession by the defendant’s companion deprived the accused of due process since the evidence was material to his guilt. By contrast, in the instant case the prosecution had not suppressed any evidence. Both names were furnished to the defendants. Further, as this court has noted, in determining whether it was error to allow witnesses to testify even though they had not been listed in response to discovery, the function of the list of witnesses is to prevent surprise and afford an opportunity to combat false testimony. (People v. Steel (1972), 52 Ill. 2d 442, 450.) In the present case, the defendant was afforded an opportunity to examine the witness under both her names. The double listing did not deprive Wolf of any evidence material to his guilt; thus he was not denied a fair trial. See United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392.

Defendants also contended in the appellate court that the State had failed to prove the corporate existence of the insurance company alleged to have been defrauded. Even if the State failed to offer testimony to establish the insurance company’s corporate existence, courts may take judicial notice of its existence since it is a matter of public record. (See Department of Public Welfare v. Bohleber (1961), 21 Ill. 2d 587, 593.) Defendants were in no way prejudiced by any failure to prove corporate existence. They were notified of the charges against them and are protected from double jeopardy; the indictment clearly identified American Casualty Company as the insurance company alleged to have been defrauded and enabled the accused to prepare their defenses (People v. Dickerson (1975), 61 Ill. 2d 580, 582; People v. Grieco (1970), 44 Ill. 2d 407, 409). Defendants are not entitled to reversal of their convictions.

For the reasons stated, the judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

Supplemental Opinion on Denial of Rehearing

Defendant Albert Berland’s petition for rehearing is denied. Defendant Louis Wolf’s petition for rehearing calls this court’s attention to issues raised in two petitions for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72) filed in the circuit court during the pendency of his direct appeal to the appellate court, which was filed on September 27, 1974. The first section 72 petition was filed on March 18, 1975; the second was filed on September 23, 1976, with a supplemental petition filed on October 8, 1976. On motion of the State, the trial court dismissed the first petition on July 18, 1975, on the ground that the issues raised were not properly before the court in the section 72 petition. The memorandum of orders included in the record and the notice of appeal in the second section 72 petition indicate that it was dismissed on February 14, 1977. Wolf prosecuted separate appeals to the appellate court, which consolidated them on its own motion on March 2, 1978. This court, on March 21, 1978, allowed the State’s motion to transfer the section 72 appeals to this court and to consolidate them with the direct appeal then pending.

No oral argument was presented to this court concerning the points raised in Wolf’s section 72 petitions when the consolidated cases were argued on May 10, 1978. Wolf’s petition for rehearing clearly states this but argues that Wolf has been denied his right to have his appeal considered. Without deciding the nature of the asserted right to appeal, we consider whether the trial court erred in dismissing the petitions. The points relied upon are raised in the two sets of appellate briefs transferred to this court without change in substance or caption.

The circuit court properly dismissed the first section 72 petition. A section 72 proceeding is the forum in which “to correct all errors of fact occuring in the prosecution of a cause, unknown to the petitioner and court at the time of trial, which, if then known, would have prevented the judgment.” (Ephraim v. People (1958), 13 Ill. 2d 456, 458; see also People v. Hinton (1972), 52 Ill. 2d 239, 243.) Since most of the exhibits relied upon in the appellate brief were incorporated in the post-trial proceedings and in the record on direct appeal, a section 72 petition to examine them would be unwarranted. The trial court had already evaluated the exhibits in the post-trial proceedings; it had held that the evidence contained therein either was known or should have been known to the defendant prior to trial and, in any event, did not justify a new trial since it would not have probably changed the result. The trial court had also concluded, after consideration of the exhibits, that trial counsel was not incompetent.

Specifically, the matters raised in Wolf’s section 72 exhibits Nos. 2, 4, 5, 6, 7, 9, 14, 21, and 23 were included in the post-trial motion, were argued at the post-trial hearing, and were incorporated in the record on direct appeal. Those exhibits contained police and fire department reports of interviews with testifying and nontestifying witnesses, transcribed statements and a deposition of testifying and nontestifying witnesses, and the Federal testimony of testifying witness Evelyn Mayberry. Variation between Ms. Mayberry’s testimony at trial and her prior testimony in the United States district court was raised on direct appeal in this court. The issue of whether Wolf was bald and the defense’s failure to introduce photographs of Wolf taken in 1968 and 1969 was also raised in the post-trial motion and at the post-trial hearing. A section 72 petition is not designed to provide a general review of all trial errors nor to substitute for direct appeal. (People v. Jennings (1971), 48 Ill. 2d 295, 299; People v. Mamolella (1969), 42 Ill. 2d 69, 72; Ephraim v. People (1958), 13 Ill.2d 456, 460.) Points previously raised at trial and other collateral proceedings cannot form the basis for a section 72 petition. See Ephraim v. People (1958), 13 Ill. 2d 456, 459; Brunswick v. Mandel (1974), 59 Ill. 2d 502, 504.

The petition argues that the State obtained Wolf’s conviction through the suppression of evidence tending to negate his guilt in violation of our Rule 412 (50 Ill. 2d R. 412). However, the issue of the State’s alleged suppression of evidence and noncompliance with discovery, including matters specifically raised in the section 72 petitions, were presented to the trial court at the post-trial proceedings and cannot be raised again. The fact that the State did not call all witnesses to the fire was also brought to the attention of the trial court in the post-trial proceedings.

Although a challenge to identification procedures was raised and addressed in the post-trial proceedings and on direct appeal, Wolf again raises the issue in his section 72 petition. Exhibit No. 17 is a hearsay report of interviews with witnesses allegedly conducted by Wolf’s investigator after the trial court entered its judgment. The report indicates that after the fire the police showed the witnesses a mug shot of Wolf and inaccurately told them that the man in the photograph had already been arrested and charged. Exhibit No. 20 is a purported affidavit by Ms. Mayberry that someone at the police station pointed Wolf out to her as the arsonist a couple of months after the fire so she could identify him at trial. In response, the State filed two affidavits by Thomas Begg, an Illinois Bureau of Investigation agent, that witnesses Evelyn Mayberry and Albert Kyles told him that they never gave a post-trial statement to Wolf’s investigator and that he had never pointed Wolf out to Ms. Mayberry. The State also asserts that Ms. Mayberry’s signature on exhibit No. 20 is different from another signature from a month later. The State points out that all three witnesses to whom Wolf’s arguments point were known to the defense prior to trial. Robert Drain and Albert Kyles were on the State’s list of witnesses. Ms. Mayberry was in fact interviewed prior to trial. There was nothing to indicate that Wolf was prevented from discovering and raising these matters at trial. (Glenn v. People (1956), 9 Ill. 2d 335, 340; see People v. Colletti (1971), 48 Ill. 2d 135, 137-38.) Further, the allegations and supporting documents were merely cumulative and would not have prevented the judgment rendered beyond a reasonable doubt. See Williams v. People (1964), 31 Ill. 2d 516, 518; Ephraim v. People (1958), 13 Ill. 2d 456, 458; cf. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) The two testifying witnesses had seen Wolf prior to the fire as well as on the day of the fire, providing an adequate independent basis for the in-court identification. (See People v. Williams (1975), 60 Ill. 2d 1, 10-11.) These exhibits did not present a basis for section 72 relief.

The first petition argues that Wolf’s conviction was the result of perjured testimony and relies on the exhibits filed to support the allegations. A section 72 petition can provide a basis for relief from a judgment based on perjury. (People v. Jennings (1971), 48 Ill. 2d 295, 298; People v. Lewis (1961), 22 Ill. 2d 68, 70-71.) However, the trial court did not err in dismissing the petition since all the inconsistencies in the witnesses’ statements charged in the petition as amounting to perjury were before the court in the post-trial proceedings. Counsel for Wolf presented a detailed analysis of the evidence at the post-trial hearing and intimated that the testimony given was false. Furthermore, the allegations in the petition and supporting documents do not support a charge of perjury and therefore offered no basis for an evidentiary hearing. (See People v. Jennings (1971), 48 Ill. 2d 295, 298-99; cf. Withers v. People (1961), 23 Ill. 2d 131, 135.) An examination of the exhibits reveals no.more than discrepancies in descriptions of defendant and what he was carrying given by different witnesses and by the same witnesses at different times, and variations in what different witnesses reported they saw, rather than the knowing use of false testimony. This does not indicate perjury. (See People v. Strother (1972), 53 Ill. 2d 95, 100-01; People v. Lagios (1968), 39 Ill. 2d 298, 301.) In sum, the trial court did not err in dismissing the petition.

The second section 72 petition is barred by the two-year limitations period applicable to section 72 proceedings (Ill. Rev. Stat. 1975, ch. 110, par. 72(3); People v. Colletti (1971), 48 Ill. 2d 135, 137.) The petition was filed on September 23, 1976, and the supplement to the petition was filed on October 8, 1976, which was more than two years after the judgment of conviction was entered and the sentence imposed on April 9, 1974. The bar of the statute of limitations is tolled only by legal disability, duress, or fraudulent concealment of the grounds for relief. (Ill. Rev. Stat. 1975, ch. 110, par. 72(3); People v. Colletti (1971), 48 Ill. 2d 135, 137; Withers v. People (1961), 23 Ill. 2d 131, 133.) Although Wolf, in reply to the State’s motion to dismiss, alleged fraudulent concealment and generally argues that the State suppressed evidence, the trial court dismissed the section 72 petition following a hearing on the issue of fraudulent concealment and an examination of exhibits filed in support of the petition. A review of the hearing testimony by the two assistant State’s Attorneys who conducted the prosecution indicates no basis on which to conclude that the State fraudulently concealed evidence from the defendant and indicates that the judgment of dismissal is not against the manifest weight of the evidence. The substance of the testimony was that the prosecutors had never seen exhibits Nos. 3, 5, and 6, consisting of an appraisal of fire damage and two fire department reports, until several weeks prior to the hearing on the second petition, and that exhibit No. 2, the fire investigation report, was made available to defense counsel. In fact, exhibit No. 2 was attached to both the first section 72 petition and the post-trial motion. Fire Marshal Lynch, whose affidavit Wolf obtained in November 1976, was included on the State’s list of witnesses.

The bar of the statute of limitations cannot be avoided by asserting that the second section 72 petition was merely a continuation of the first. Attorney Witney conceded at the hearing on the second petition that it was not a continuation of the first. The first proceedings had already terminated at the trial level, and a notice of appeal had been filed on August 16, 1975, more than a year prior to the filing of the second petition.

Even if we put aside the bar of the statute of limitations, an examination of exhibits reveals no factual allegations sufficient to sustain Wolf’s charge of perjury. (See People v. Jennings (1971), 48 Ill. 2d 295, 299.) The new exhibits indicate only that the fire battalion chief and fire marshal who were present during the fire did not know what caused it and placed the point of origin at a different place than did the fire inspector who examined the premises after the fire and provided evidence at trial that the fire had been set. The fire damage appraisal indicates only that the dollar amount of damage did not correspond directly to the point of origin of the fire and the intensity of the heat in light of the size of the rooms affected and the presence of damage not attributable to the point of greatest intensity of heat. The fire inspector’s in-court testimony did not contradict his written fire report. Thus the exhibits failed to support an allegation that the conviction was based on the knowing use of false testimony.

For the reasons stated, the judgments of the circuit court dismissing Wolf’s section 72 petitions are affirmed and the petition for rehearing is denied.

Judgments affirmed; rehearing denied.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 49766.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KENNETH C. ECHOLS et al.—(Johnny R. Wilson, Appellant.)

      Opinion filed December 4, 1978.

      Mary Robinson, of Elgin, and Richard J. Wilson, of Springfield, Deputy Defenders, of the Office of the State Appellate Defender (Richard E. Cunningham, Assistant Defender, of Elgin, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Fred Montgomery, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The appellant, Johnny Wilson, was convicted of one count of burglary (Ill. Rev. Stat. 1973, ch. 38, par. 19—1) in the circuit court of Macon County. A majority of the Appellate Court, Fourth District, affirmed (48 Ill. App. 3d 885), holding, inter alia, that appellant had not been denied the effective assistance of counsel as a result of his having been represented at trial by the same attorney who represented appellant’s two co-defendants in the joint trial of the three. We granted appellant’s petition for leave to appeal on that issue, and we now reverse.

On June 11, 1974, a grand jury indicted appellant, along with Kenneth Echols, William Echols, Thomas Ferguson, and Gregory Van Cook, for burglary and attempted burglary in connection with a June 5, 1974, incident at Valley’s Tavern in Decatur. (The State subsequently nol-prossed the charge of attempted burglary.) At a preliminary hearing held on June 21, 1974, the court appointed the public defender to represent all of the defendants except appellant, who evidently indicated that he intended to retain counsel. The court did, however, appoint the public defender to represent appellant for purposes of the preliminary hearing. On July 5, 1974, at a subsequent hearing, the court sought to determine who was representing the appellant. From the ensuing colloquy, it appears that the attorney whom appellant had intended to “retain” was named Birk, an assistant public defender, who had represented appellant on a prior misdemeanor charge:

“The Court: Once again, earlier you said you would hire an attorney, you could and plan to.
Appellant: No, I was trying on planning to get Mr.
Birk, you know, to see if he could take my case.
The Court: By hiring him?
Appellant: No, by Public Defender.
The Court: You don’t appoint — you don’t select your public defender, especially when you posted bond and you posted, what, 1300.00?
Appellant: Yes.
The Court: We will see — you will have to prepare an affidavit — and then we’ll see if you qualify.
Appellant: Right.” (Emphasis added.)

Sometime after the foregoing hearing, appellant filed an affidavit of indigency, and requested appointment of counsel. The public defender was appointed. Approximately one month later, the public defender moved to sever the trials of Ferguson and Van Cook from that of appellant and the Echols brothers, on the grounds that Ferguson and Van Cook had made statements exculpating themselves at the expense of the appellant and the Echols brothers, and had made admissions prejudicial to appellant and the Echols brothers. The State did not object, and the court granted the motion. Two days later, the public defender also obtained leave to withdraw as counsel for Ferguson and Van Cook, for whom the court appointed separate counsel.

The first trial of this cause ended in a mistrial (on August 26, 1974) after the jury was impaneled but before opening statements. The second trial also ended in a mistrial (on September 24, 1974) as a result of a State witness’ reference to the defendants’ having known each other in jail. The third trial resulted in the conviction at issue here.

At that trial, defendant Ferguson, testifying under a grant of immunity, gave the following account of the events of the early morning of June 5, 1974:

At about 5 a.m., appellant, who was driving, and the four others, were headed toward Decatur on Woodford Street, when they passed Valley’s Tavern. About this time someone in the car evidently said something which caused appellant to turn the car around and head back toward the tavern shortly after they had passed it. Appellant drove around to the back door of the tavern, where he and the Echols brothers got out of the car and attempted to open the back door. Ferguson drove himself and Van Cook away from the scene to the nearest intersection, while the others walked around to a drive-up window on the other side of the building. Ferguson drove the car back to the tavern about a minute and a half later and picked up appellant and the Echols brothers. None of the three appeared to be carrying anything at the time and none opened the door to the car’s trunk before getting in. Ferguson then drove back toward Decatur and turned down a side street, turned around, came back out onto the street on which he had been driving and drove to Longview, where the car was stopped by Decatur police. When the police arrived Ferguson was sitting “up under the wheel.” Van Cook was on the passenger side. The Echols brothers “were in the back,” and Johnny Wilson was “standing by the back door.”

Julian and Galen Beckler, who worked as custodians at the tavern, also testified to the events of about 5 a.m. on June 5, 1974. Julian testified as follows:

As he pulled into the parking lot at the tavern, he saw a tall, skinny Negro male with short hair and sideburns, wearing a red shirt and light-colored pants, walking away from the drive-up window on the west side of the tavern. He then observed two more individuals standing at the drive-up window, one wearing a floppy hat with silver studs around the brim and another wearing a green army shirt. Julian identified People’s exhibit No. 1 as the hat he had seen, which then had holes where the silver studs allegedly had been. Julian also observed two men in the kitchen of the tavern. As he left to call the police, he observed a “two-toned green Buick or Oldsmobile, about a ’56,” parked down the block. Two or three of the people he had observed were then running toward the car.

After calling the police, Julian headed back toward the tavern, at which time he observed “the guy with the hat” driving the car that had been parked, “the guy with the red shirt” sitting on the passenger side of the front seat, and about five other people in the car. Julian, however, could not identify any other individuals he had seen. He did, however, accurately remember the license plate number of the car.

Galen Beckler, who had been in the car with Julian, also testified. Galen only observed three individuals at the tavern; one standing outside the package window and wearing white pants, and two inside the building, of whom one had on a green army jacket and another a black hat with studs. Galen also identified the now-studless hat.

Another witness, Ronald Atkins, saw the car (with at least four people in it) during the maneuvers described by Ferguson. Gary Doolin also saw the car at about that time, but saw five people in it.

Roy Pritchett, the police officer who stopped the vehicle, testified that appellant was behind the wheel, wearing “a blue windbreaker, gold shirt and wine-colored checked pants”; Kenneth Echols was wearing kind of “an off-white pair of pants and a red pullover shirt”; and William Echols “also had on a pair of white pants, tan jacket and a large black floppy hat” — which Pritchett identified as People’s exhibit No. 1.

Officer Ronald Wetherell, Pritchett’s partner, also testified that, when arrested, Kenneth Echols was wearing a red shirt and appellant was wearing checkered pants. Pritchett also rendered an in-court identification of appellant.

The arresting officers were unable to open the trunk of the car with any of the keys given them by appellant, and had to obtain access to the trunk by removing the back seat. The owner of the tavern identified a tape player found in the trunk of the car as one belonging to her.

In addition, another police officer, Clifford Kretzinger, testified that he removed several pieces of broken plexiglass, which had covered the package liquor drive-up window of the tavern. One of those pieces contained a fingerprint, which was subsequently lifted and preserved for comparison to the defendants’ fingerprints. Additional testimony later established that the fingerprint found on the piece of broken plexiglass matched that on People’s exhibit No. 11, a police fingerprint card bearing the name Kenneth Echols.

Officer Lewis Madia testified that he assisted Kenneth Echols in placing his fingerprint on People’s exhibit No. 11. However, when asked if he could identify the individual whose print was on People’s exhibit No. 11, Madia pointed not to Kenneth Echols, but to the appellant, Johnny Ray Wilson, and the public defender asked that the record so indicate.

Without the jury present, the State sought leave to obtain appellant’s and Kenneth Echol’s fingerprints, stating:

“Your Honor, the testimony of the witness, Lewis Madia, who took the fingerprints on June the 5th, and his identification in court of one of the defendants leaves the question — leaves the area of the fingerprints somewhat questionable in the minds of the jury as to who is the man who he fingerprinted that morning. The People’s position is that we want to clarify this for the jury right now.”

However, the public defender objected that to do so would violate appellant’s and Kenneth Echols’ privilege against self-incrimination. On advice of the public defender, both appellant and Kenneth Echols reiterated the public defender’s objection when questioned by the court.

Subsequently, the public defender unsuccessfully objected to the admission of the testimony identifying exhibit No. 11 as containing a print identical to the one found on the piece of broken plexiglass. However, in closing arguments, he chose to point to the ambiguity regarding the fingerprints as limiting its probative value relative to all of the defendants, rather than specifically arguing that the print probably did not belong to appellant.

The State, in its closing argument, argued alternatively that, either (1) the print belonged to Kenneth Echols and Officer Madia simply had been confused by the resemblance between Kenneth Echols and appellant, or (2) to deceive Madia, appellant had identified himself to Madia as being Kenneth Echols, thereby placing his prints on the card. Over the public defender’s objection, the court ruled that, as to alternative (2), “This is proper speculation and inference from the evidence.” (However, at oral argument in this court, the State conceded that the fingerprint in question was that of Kenneth Echols and not that of the appellant.)

The court gave People’s instruction No. 10 (Illinois Pattern Jury Instruction, Criminal, No. 14.05 (1968), hereafter IPI):

“A person commits the crime of burglary who, without authority, knowingly enters a building or any part thereof with intent to commit a felony or theft therein.”

However, because of certain inconsistencies between the accounts given by the several State witnesses, the court refused to give People’s instruction No. 9 (IPI Criminal No. 5.03):

“A person is responsible for the conduct of another person when, either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the crime.”

The net effect of the instructions therefore was to require the jury to determine whether each defendant actually entered the tavern, and to acquit any defendant found not to have entered the tavern. Nonetheless, the jury found each of the three co-defendants guilty.

The appellant contends that the facts of this case demonstrate such hostility between his interests and those of the Echols brothers that the public defender could not adequately represent all three. We agree, and hold that the public defender’s representation of the Echols brothers prevented the public defender from loyally representing the appellant, thereby denying appellant the effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States Constitution, and by section 8 of article I of our constitution (Ill. Const. 1970, art. I, sec. 8).

Although this court has in the past refused to presume that the interests of criminal co-defendants are necessarily hostile (e.g., People v. Durley (1972), 53 Ill. 2d 156, 160; People v. Somerville (1969), 42 Ill. 2d 1, 9-10), where such hostility is shown to exist, the joint representation of the conflicting interests denies a defendant the effective assistance of counsel, and such denial is presumed to be prejudicial (People v. Ware (1968), 39 Ill. 2d 66, 67-68; People v. Coslet (1977), 67 Ill. 2d 127, 133. See also People v. Kester (1977), 66 Ill. 2d 162, 168; People v. Stoval (1968), 40 Ill. 2d 109, 113.) Thus, our threshold inquiry must be into the degree of hostility, if any, between the interests of appellant and the Echols brothers. (Appellant does not claim that the public defender’s prior representation of Ferguson and Van Cook gave rise to a conflict of interest undermining his loyalty to the appellant.)

Appellant points to three examples of hostility between his best interests and those of the Echols brothers. First, appellant contends that the evidence of the Echols brothers’ entry into the tavern (based on the descriptions of the clothing worn by the persons seen inside the tavern) was substantially stronger than that indicating that appellant had entered the tavern. Thus, appellant argues, “Counsel with undivided loyalty to Johnny Wilson could have pursued a line of defense which conceded that *** the clothing descriptions indicated that the Echols brothers committed the burglary rather than the defendant.” While we agree that it is possible that an independent attorney might have pursued precisely such a strategy, it is also possible that he would have acted no differently than did the public defender in this case, lest he risk the introduction of rebuttal evidence which would have justified the giving of the accountability instruction rejected by the trial court in this case. In short, we do not know what strategy independent counsel would have pursued, and this court has in the past refused to find hostility between the interests of criminal co-defendants based on the mere possibility that one strategy available to defense counsel would have helped one defendant at the expense of another. E.g., People v. Durley (1972), 53 Ill. 2d 156, 160; People v. Robinson (1969), 42 Ill. 2d 371, 374-75.

Appellant’s second contention is that the evidence indicated that the tape player had been placed in the trunk without his knowledge by the Echols brothers, who were sitting in the back seat of the car (which, incidentally, was registered to appellant’s brother), but that “such an argument could not be made because the exculpatory influences that could be drawn from the above facts for Johnny Wilson would have necessarily inculpated the Echols brothers.” Like the appellant’s first theory, however, the mere availability of such a strategy would, of itself, not render the interests of the defendants hostile under our prior decisions.

Finally, appellant also argues that once the confusion occurred regarding the source of the fingerprint it became obvious that counsel could not give undivided loyalty to both Johnny Wilson and Kenneth Echols. We agree. As the State now concedes, and as the public defender should have known, the fingerprint on the window was not that of appellant. Nonetheless, the public defender resisted the State’s and the court’s efforts to make that fact clear. Once the confusion occurred regarding the fingerprint, appellant’s interests and those of the Echols brothers diverged dramaticaUy. It requires no speculation to reach the conclusion that competent, independent counsel would have advised appellant to resolve that confusion, and would have argued in closing that, on balance, given all of the evidence, appellant never entered the tavern.

Thus, there was a material hostility between the interests of appellant and Kenneth Echols, and the public defender’s commitment to Kenneth Echols prevented the public defender from representing the appellant with undivided loyalty. Appellant therefore was denied the effective assistance of counsel, which denial was prejudicial and was not waived by appellant’s silence. People v. Coslet; People v. Kester. See also Glosser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457.

For the foregoing reasons, the judgments of the appellate and circuit courts are reversed and the cause is remanded to the circuit court for a new trial.

Reversed and remanded.


author: MR. JUSTICE MORAN

text:
    (No. 50392.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PETER SAMUEL VRINER, Appellant.

      Opinion filed December 4, 1978.

      Julius Lucius Echeles, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield, and James R. Burgess, Jr., State’s Attorney, of Champaign (Donald B. Mackay, Melbourne A. Noel, Jr., and William M. Wippold, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Champaign County, the defendant, Peter Vriner, was convicted of unlawful use of weapons and two counts of armed violence, one based on intimidation and one on aggravated assault. The court sentenced defendant to a term of 364 days for unlawful use of weapons, to run concurrently with terms of one to three years on each of the armed violence convictions. The appellate court, by order, vacated the conviction of armed violence based on aggravated assault and affirmed the convictions of unlawful use of weapons and armed violence based on intimidation. (53 Ill. App. 3d 1105.) We granted defendant leave to appeal.

Defendant contends that (1) he was denied effective assistance of counsel, inasmuch as one attorney represented defendant and his brother, a codefendant; (2) the evidence of his guilt was insufficient to sustain a conviction; (3) he was denied a fair trial due to improper statements made by the prosecutor; (4) his right to due process was violated because he was charged with a felony founded upon the same facts that would permit a misdemeanor charge; (5) the jury was improperly instructed; (6) he cannot, under People v. King (1977), 66 Ill. 2d 551, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, be guilty of both armed violence based on intimidation and unlawful use of weapons; and (7) the trial court erred in refusing to permit defendant to present the results of polygraph examinations.

At approximately 8:30 p.m., on May 4, 1976, Michael Rea was preparing to drive his car out of the parking lot of a grocery market in Champaign. As he waited for traffic to clear so that he could exit, a green Chevrolet started into the lot, but came to a screeching halt several feet from the side of Rea’s car. In the front seat of that car were the driver and two passengers. The passenger on the right and driver both exchanged words with Rea. A witness, Lenford Russell, was standing approximately 35 feet from the Chevrolet during the occurrence. Russell testified that the passenger got out of the Chevrolet, picked up a stick, and, while cursing Rea, hit Rea’s car with the stick. According to Rea, however, the passenger did not hit Rea’s car with the stick, but merely approached to within a few feet of the car. Rea opened his car door but did not get out.

The evidence showed that the driver of the Chevrolet then got out, approached Rea’s car while holding a gun at his side, and told Rea in strong language that he had better leave. Rea closed his car door and pulled out into the street. As he did so, the driver of the Chevrolet fired the gun at the ground a few feet behind Rea’s car. The driver and passenger got back into the Chevrolet and left the scene.

After traveling a short distance, Rea returned to the parking lot. Finding that the Chevrolet was gone, he went to a service station and asked the attendant to call the police. Thereafter, Rea and Russell related the incident to the police.

That same evening, between 9:15 and 9:30 p.m., the Champaign police apprehended Peter Vriner, his brother William, and Stanley Vinson at a service station in Champaign. Vinson had arrived at the service station alone in one car, and the Vriners arrived a few minutes later in a green Chevrolet. The police recovered a gun from beneath the car of John Ruedi, a witness who was at the service station. Ruedi testified that Peter Vriner had thrown the gun beneath Ruedi’s car as the police were arriving. The gun matched the description of the gun used earlier that evening at the parking lot.

Later that evening, the Vriners and Vinson were three of the four people in a police lineup. There, Rea identified William Vriner as the driver of the green Chevrolet and Vinson as' the passenger who had approached Rea’s car. Russell, independently, also identified Vinson as the passenger, but identified Peter Vriner as the driver.

In separate indictments, Peter Vriner was charged with armed violence and unlawful use of weapons, William Vriner was charged with armed violence, and Stanley Vinson was charged with armed violence. William and Peter retained a private attorney to defend them. Another attorney represented Vinson. Upon motions by the State, the court consolidated the cases for trial.

At trial, contrary to his out-of-court identification, Rea testified that Peter Vriner was the driver of the auto. Russell also testified, consistent with his identification at the lineup, that Peter was the driver. Rea and Russell each adhered at trial to his out of-court identification of Vinson as the passenger. At the close of the State’s case, the court granted a motion for a directed verdict in favor of William Vriner.

In defense Peter Vriner testified that William had driven the car to the market that night and that Peter was the passenger whom the prosecution witnesses had identified as Vinson. William, no longer a defendant, also testified to that effect. Both stated that Vinson was not with them in the car. Another witness testified that he had been the third person in the car and that defendant’s version was correct. This defense testimony was partially corroborated by Vinson and his several alibi witnesses, who placed Vinson at his home at the time of the incident at the parking lot.

The jury returned a verdict of guilty against Peter Vriner and Vinson. The court granted Vinson’s post-trial motion for judgment n.o.v., thereby leaving Peter Vriner as the only defendant in the case.

Defendant contends that dual representation at the joint trial of defendant and his brother denied defendant the effective assistance of counsel. He asserts that, on the basis of the contradicting evidence against the brothers, the attorney was faced with a conflict of interests.

The sixth and fourteenth amendments to the United States Constitution guarantee the right to effective assistance of counsel. (See Powell v. Alabama (1932), 287 U.S. 45, 71, 77 L. Ed. 158, 172, 53 S. Ct. 55, 65.) The Supreme Court has interpreted this guarantee to mean that, although joint representation of codefendants is not a per se violation, to require an attorney to represent two codefendants whose interests are in conflict denies one of them the right to effective assistance of counsel. Glosser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 481-83, 55 L. Ed. 2d 426, 432-33, 98 S. Ct. 1173, 1177.

In Holloway, where, as here, defendants’ cases were consolidated, the attorney appointed for the codefendants made pretrial motions for separate counsel. He represented that, because of confidential information received from the codefendants, he was confronted with the probable risk of a conflict of interests that would preclude him from providing each of the clients effective assistance. The trial court denied the motion. Subsequently both defendants were convicted. The Supreme Court reversed, holding that, in the face of the representations made by the attorney, the court should have either appointed separate counsel or taken adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel; that, by failing to do so, the court deprived defendants of the guarantee of effective assistance of counsel. In addition to requests for separate counsel, the rule in Holloway presumably would extend to requests for separate trials, because in certain cases the conflict may be alleviated by trying the defendants separately. See Case v. North Carolina (4th Cir. 1963), 315 F.2d 743; People v. Walsh (1963), 28 Ill. 2d 405, 410; Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119, 143 (1978).

Here, the three defendants were indicted separately. The State first moved to consolidate only the case against Peter Vriner with the case against Vinson. The court asked the attorney for Peter if he had an objection to the motion, whereupon the following colloquy took place:

“[VRINER’S COUNSEL]: I do Your Honor. Because I have been sick all this time I haven’t completely investigated this matter. We might have some diametrically opposed defenses. But that’s the only thing I can say at the present time.
THE COURT: They may have, but you don’t know at this time, is that correct?
[VRINER’S COUNSEL]: That’s correct.
THE COURT: Are there any statements, or confessions, or anything of that kind being used in these two cases, made by one that incriminates somebody else?
[THE PROSECUTOR]: No statements by the defendants that we are aware of.
THE COURT: Anything you want to say about this, [counsel] ?
[VRINER’S COUNSEL]: No your Honor.”

The court overruled the objection and granted the State’s motion to consolidate. About two weeks later, but still prior to trial, the State moved to join the case against William Vriner with the two previously consolidated cases. The record contains the motion itself, but discloses no court proceedings regarding the motion. Thus, there is no record of an objection to the joinder of William with Peter Vriner and Vinson. In his post-trial motion, however, defendant’s counsel claimed that he had objected to consolidating for trial the cases against William and Peter. (The State’s brief assumed the above-quoted objection occurred at the time it sought to consolidate William Vriner’s case with the already-consolidated cases of Peter Vriner and Vinson. This is not the fact.)

Defendant Peter Vriner cannot complain that consolidation of his case with Vinson’s caused the alleged conflict of interests. That consolidation, over the objection based upon possible “diametrically opposed defenses,” is irrelevant to the asserted conflict of interests, as Vinson was represented by his own attorney. The only possible basis for the application of the holding in Holloway would be the joinder of the case against William with those against Peter and Vinson over an objection based upon a potential conflict in representing both of the Vriner brothers. Inasmuch as any conflict-based objection to this joinder is not a part of the record before us, we are precluded from applying the Holloway rule to determine that Peter was denied the right to effective assistance of counsel because of a conflict of interests.

There remains, however, the question of whether, aside from the Holloway-type situation, a conflict of interests existed so as to deny defendant Peter Vriner the effective assistance of counsel. Although most questions of conflict in criminal cases arise in connection with counsel appointed for defendant, the fact that the attorney was retained rather than appointed does not obviate the need to examine the conflict issue. (See People v. Coslet (1977), 67 Ill. 2d 127, 132-33; United States v. Gaines (7th Cir. 1976), 529 F.2d 1038, 1043.) Moreover, once the court finds a conflict of interests, it is unnecessary to establish actual prejudice to the defendant, as prejudice is presumed. (Holloway v. Arkansas (1978), 435 U.S. 475, 489, 55 L. Ed. 2d 426, 437, 98 S. Ct. 1173, 1181; Glasser v. United States (1942), 315 U.S. 60, 75-76, 86 L. Ed. 680, 702, 62 S. Ct. 457, 467-68; People v. Coslet (1977), 67 Ill. 2d 127, 133; People v. Kester (1977), 66 Ill. 2d 162, 168; People v. Stoval (1968), 40 Ill. 2d 109, 113.) Joint representation of criminal codefendants, however, is not per se violative of the guarantee of effective assistance of counsel. (Holloway v. Arkansas (1978), 435 U.S. 475, 482-83, 55 L. Ed. 2d 426, 433, 98 S. Ct. 1173, 1177.) Although there is always the possibility that the interests of the defendants may diverge (Hyman, Joint Representation of Multiple Defendants in a Criminal Trial: The Court’s Headache, 5 Hofstra L. Rev. 315 (1977)), this court has agreed that a conflict of interests is not inherent in joint representation situations merely by virtue of such representation. (People v. Berland (1978), 74 Ill. 2d 286, 299-300; People v. Echols (1978), 74 Ill. 2d 319, 326-27; People v. Durley (1972), 53 Ill. 2d 156, 160.) Instances of joint representation of criminal codefendants, therefore, are distinguishable from those situations (People v. Coslet (1977), 67 Ill. 2d 127 (counsel represented both the defendant, who was charged with murdering her husband, and the administrator of the husband’s estate, which stood to benefit by a conviction); People v. Kester (1977), 66 Ill. 2d 162 (counsel represented the defendant after having worked on the case as a prosecutor); People v. Stoval (1968), 40 Ill. 2d 109 (counsel represented the defendant after representing the owner of the jewelry store which defendant was charged with burglarizing)) in which conflicts of interest are found to be inherent in the nature of the representation. (See People v. Berland (1978), 74 Ill. 2d 286, 303.) Thus, to prevail on a claim of ineffective assistance of counsel because of representation of criminal codefendants by a single attorney, a defendant must show an “actual conflict of interest manifested at trial.” People v. Berland (1978), 74 Ill. 2d 286, 299-300.

At trial in this case, as earlier stated, the State’s two key witnesses both identified Peter as the driver of the green Chevrolet. The record discloses that the attorney for William and Peter rigorously cross-examined these witnesses as to possible misidentification and general lack of perception. There is no indication that the attorney was in a position that would cause him to slight the interests of one client in favor of the other. This is unlike the situation in People v. Echols (1978), 74 Ill. 2d 319, in which confusion surrounding certain fingerprint evidence introduced by the prosecution placed defense counsel in an untenable position. A prosecution witness mistakenly identified one defendant, the appellant, as the person to whom the fingerprint of another defendant belonged. It became immediately apparent that counsel could not give the defendants his undivided loyalty. After William was dismissed from the case, it became apparent that Peter’s defense was that William was the driver and Peter the passenger. Both Peter and William testified to this effect, as did the third person in the car. In the presentation of his defense, Peter had not only effective assistance, but the exclusive assistance of his attorney, totally unfettered and unimpaired by any conflicting duties and loyalties.

In most criminal cases, strategy of counsel in presen ting the defense must await the actual and perceived results of the prosecution’s case. The final outcome invariably will disclose something that counsel could have done during the case that he did not do. Consequently, defense strategy in multiple representation situations often will invite, through hindsight, conceived notions that the representation adversely affected the interests of at least one defendant at some point in the trial process. For us now to say that the presentation of the defense in this case demonstrated that an impermissible conflict of interests existed from the outset of the trial would be tantamount to adoption of a per se rule which, absent a knowing waiver, would require separate representation of criminal codefendants in every case. Before we arrive at the point of reversing a conviction without requiring a showing of prejudice to the defendant, a positive basis must be found for concluding that an actual conflict of interests existed. We hold that an insufficient basis exists in this case for finding that there existed a conflict of interests which denied defendant the effective assistance of counsel.

Defendant’s argument that the evidence of his guilt was insufficient to sustain a conviction is unpersuasive. This court will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of defendant’s guilt. (People v. Stringer (1972), 52 Ill. 2d 564, 568; People v. Yarbrough (1977), 67 Ill. 2d 222, 227.) Defendant points to Rea’s conflicting identification of the driver of the Chevrolet, to the trial judge’s acquittal of Vinson, which, after Russell’s identification of Vinson as the passenger, allegedly discredited Russell’s testimony, and to the exculpatory testimony of the defendant and other defense witnesses. It was the function of the jury to determine the credibility of the witnesses, to weigh the evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 298-99.) This is not a case in which, as in People v. Reese (1966), 34 Ill. 2d 77, the evidence was so unsatisfactory as to raise a reasonable doubt of guilt. Although Rea identified William Vriner at the lineup as the driver of the Chevrolet, Russell identified defendant as the driver. In addition, both witnesses positively identified defendant at trial as the driver. The evidence discloses that the lighting conditions in the parking lot were good, providing the witnesses with ample opportunity to observe. Russell’s verified perception of damage to the front end of the Chevrolet and of the car’s license plate number add weight to his identification of defendant as the driver. It is well settled that positive identification by a single witness who had ample opportunity to observe is sufficient to support a conviction. People v. Stringer (1972), 52 Ill. 2d 564, 569; People v. Williams (1975), 60 Ill. 2d 1, 12; People v. Jones (1975), 60 Ill. 2d 300, 307-08.

It appears from the record that the trial judge granted Vinson’s motion for judgment n.o.v. not because he refused to believe that Vinson was present at the scene, but rather because he considered the evidence insufficient to hold Vinson accountable for the actions of defendant. This factor also answers defendant’s assertion that, because the trial judge found Vinson not guilty, defendant’s conviction on like evidence cannot stand. The failure to convict one codefendant does not raise a reasonable doubt as to the guilt of the other codefendant unless it is shown that the evidence against both defendants is identical in all respects. (People v. Stock (1974), 56 Ill. 2d 461, 465.) The evidence as to defendant and Vinson was substantially different. The jury’s verdict disclosed that defendant had the gun, thereby more strongly establishing defendant’s guilt than Vinson’s. Thus, the judgment n.o.v. for Vinson is not inconsistent with defendant’s conviction.

Defendant next contends that he was denied a fair trial where the prosecutor, over objection, stated his personal opinion that defendant was the man with the gun. Ordinarily the prosecutor should not express his personal opinion as to defendant’s guilt. (People v. Prim (1972), 53 Ill. 2d 62, 77, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731; People v. Skorusa (1973), 55 Ill. 2d 577, 585.) The prosecutor’s statement, however, made in closing argument, was in rebuttal to the following statement which was made by defendant’s attorney during closing argument: “[H]e [the prosecutor] hasn’t even proved his own case beyond a reasonable doubt to the satisfaction of himself. He absolutely has not done that.” In his argument, the prosecutor replied: “To clear the air, yeah, I think Pete Vriner was the man with the gun ***.” Defense counsel objected and this exchange ensued:

“[THE PROSECUTOR]: Judge, this is what [defense counsel] said in his argument, that I don’t even believe it.
THE COURT: Ordinarily, of course, you’re not supposed to express your opinion but I think that argument was made.
[THE PROSECUTOR]: Thank you.”

The record thus demonstrates that defendant’s counsel invited the complained-of statement by the prosecutor and cannot, therefore, rely on such statement as error. (People v. McDonald (1936), 365 Ill. 233, 246; People v. Myers (1966), 35 Ill. 2d 311, 335, cert. denied (1967), 385 U.S. 1019, 17 L. Ed. 2d 557, 87 S. Ct. 752.) Accordingly, we find no error in the prosecutor’s statement.

Defendant contends that his right to due process was violated because the prosecutor charged defendant with the felony of armed violence based on aggravated assault founded upon the same facts that would permit the misdemeanor charge of aggravated assault. As a prerequisite to this contention, defendant urges this court to overrule its decision in People v. McCollough (1974), 57 Ill. 2d 440, appeal dismissed (1974), 419 U.S. 1043, 42 L. Ed. 2d 637, 95 S. Ct. 614. Therein this court held that permitting the conduct of a defendant to be punished under either of two different sections of the Criminal Code, which impose different degrees of punishment, does not violate defendant’s constitutional rights. In the instant case, the appellate court reversed, on other grounds, the conviction for armed violence based on aggravated assault. We therefore find it unnecessary to reconsider McCollough or, consequently, to decide the merits of defendant’s contention.

Defendant argues that the trial judge erroneously instructed the jury on the offense of armed violence based on intimidation because of the manner in which the instruction defined the elements of that offense. At the request of the State, the following pertinent part of a jury instruction was given:

“To sustain the charge of armed violence based upon intimidation against the defendant, Peter Samuel Vriner, the State must prove the following propositions:
First: That the defendant, Peter Samuel Vriner, or a person for whose conduct Peter Samuel Vriner is responsible, communicated to Michael Rea a threat to inflict, without lawful authority physical harm on Michael Rea, and
Second: That the defendant, Peter Samuel Vriner or a person for whom Peter Samuel Vriner is responsible then intended to cause Michael Rea to perform an act, and
Third: That the defendant, Peter Samuel Vriner, or a person for whose conduct Peter Samuel Vriner is responsible, used a dangerous weapon.”

Specifically, defendant complains that the instruction does not state that the weapon was used as part of or during the threat. Defendant failed, however, to object at trial to the proferred instruction on the ground which he now asserts. Our Rule 451 (58 Ill. 2d R. 451) grants the right to object to instructions and directs that the ground be particularly specified. Failure to object to proposed instructions usually serves as a waiver of the objection (People v. Springs (1972), 51 Ill. 2d 418, 424, cert. denied (1972), 409 U.S. 908, 34 L. Ed. 2d 169, 93 S. Ct. 252), and thus precludes the party from raising the objection on appeal (People v. Smith (1978), 71 Ill. 2d 95, 104), “but substantial defects are not waived by failure to make timely objections thereto if the interests of justice require” (58 Ill. 2d R. 451(c)).

The charge against defendant of armed violence based on intimidation was founded upon defendant’s threat of physical harm communicated to Rea while defendant held the gun at his side. At the time of the offense, section 33A —2 of the Criminal Code of 1961 defined armed violence as the performance of any one of several enumerated acts, including intimidation (see Ill. Rev. St at. 1975, ch. 38, par. 12—6), “while armed with a dangerous weapon.” Ill. Rev. Stat. 1975, ch. 38, par. 33A—2.

The jury could reasonably have understood the instruction to require them to find the defendant guilty only if, contrary to defendant’s argument, they found he had used the weapon while communicating the threat. This is especially true in view of the fact that the court further instructed the jury that: “A person commits the crime of armed violence who, in committing intimidation or aggravated assault, is armed with a dangerous weapon.” (Emphasis added.)

Furthermore, the uncontradicted evidence demonstrates that the driver had the gun in his hand at the time of the offense. Consequently, the complained-of instruction neither constituted a substantial defect nor prejudiced the rights of the defendant.

Defendant contends that, under People v. King (1977), 66 Ill. 2d 551, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, he cannot be guilty of both armed violence based on intimidation and unlawful use of weapons. In King, this court held that convictions with concurrent sentences can be entered when more than one offense arises from a series of incidental or closely related acts and when the offenses are not, by definition, lesser included offenses.

Defendant’s argument that unlawful use of weapons is a lesser included offense of armed violence based on intimidation is without merit. As pointed out by the State in its brief, the offense of unlawful use of weapons as charged here requires proof of elements that are not required for the offense of armed violence based on intimidation. (See Ill. Rev. Stat. 1975, ch. 38, pars. 24—l(a)(10), 33A— 2, 12—6(a).) Also, the evidence discloses that defendant carried or possessed the gun at times other than when he communicated the threat to Rea. This is not, therefore, a case “where more than one offense is carved from the same physical act.” People v. King (1977), 66 Ill. 2d 551, 566, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.

Defendant asserts that the trial court erred in refusing to permit him to present the results of polygraph examinations which corroborated defendant’s witnesses. However, the well-established rule is that the results of polygraph examinations are not admissible at trial to prove the guilt or innocence of the accused. People v. Nicholls (1970), 44 Ill. 2d 533, 539; People v. Zazzetta (1963), 27 Ill. 2d 302, 306.

For the foregoing reasons, the judgment of the appellate court is affirmed.

Judgment affirmed.