author: JUSTICE HEIPLE JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v GERALD STRONER, Defendant-Appellant.
    Third District
    No. 81-118
    Opinion filed February 26, 1982.

      Robert Agostinelli, Verlin R. F. Meinz, and Stephen H. Omolecki, all of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

A Will County jury convicted the defendant, Gerard Stroner, of solicitation to commit murder, conspiracy to commit murder, and attempt murder. Concurrent terms of six years on each offense were imposed.

Gerard Stroner was indicted on November 5,1980, for three offenses: solicitation to commit murder, conspiracy to commit murder and attempt murder. Pleas of not guilty were accepted on each chargé. Subsequently, the State sought, by motion, to compel withdrawal of defendant’s attorney, Robert M. Gray. The State’s motion was based on the fact that another attorney in Gray’s firm had been retained to represent in a marriage dissolution proceeding, one of the State’s witnesses, the wife of the intended victim in the instant case. The State contended that this relationship created a conflict of interest denying defendant Stroner his constitutional right to effective assistance of counsel and would accordingly, require reversal of any conviction that might result. With Stroner present at the hearing on the motion, attorney for the State carefully detailed the nature of the conflict. Defense counsel Gray asserted that Mr. Stroner was aware of the fact that his firm was representing Susan McGrath, wife of the intended victim, and desired, nonetheless, that Gray continue as his defense counsel. The trial judge then questioned Stroner about the situation. Stroner acknowledged the dual representation of his defense counsel’s firm and that he, Stroner, waived any conflict that might arise because of such associations. The trial judge then denied the State’s motion to compel withdrawal of defense counsel.

On December 10, 1980, the trial commenced. The State’s evidence tended to show that Gerard Stroner, a Crest Hill police officer, met with Dennis McCallister in February 1980 and asked him if he could arrange to have someone killed. At a subsequent meeting, Stroner told McCallister that William McGrath was the target victim. Stroner said he was in love with McGrath’s wife, Susan, and that McGrath beat her all the time. McCallister agreed to kill McGrath for $500. Susan McGrath testified that although she had met Stroner several times, he was no more than a mere acquaintance.

McCallister and Stroner met numerous times. Ultimately, a price of $1,000 was agreed upon for McCallister to obtain a gun and to kill William McGrath. On one occasion, McCallister and Stroner followed William McGrath home from work so that McCallister could identify the victim. On another occasion, Stroner drove McCallister by the McGrath residence so that McCallister would know where the victim lived.

Stroner gave McCallister $200 in advance with the understanding that it be used to buy a gun and arrange for transportation the night of the killing. Instead, McCallister used the money for liquor and drugs. Finally, on April 21, 1980, Stroner insisted that William McGrath be killed that night. Later that evening, McCallister informed Stroner that he had been unable to obtain a gun or a ride. Stroner agreed to make the necessary arrangements. Stroner then obtained a shotgun from the Crest Hill Police Department Armory. Stroner also gave $800 to Gordon Olson, a local restaurant assistant manager, with orders to hold on to the money until he or someone sent by him came to claim it.

Stroner had a shotgun and some shells when he picked up McCallister and drove him to a Bolingbrook parking lot where the killing was to take place. A Bolingbrook squad car arrived and the plan was modified to kill McGrath as he arrived home. Stroner then drove McCallister to the McGrath residence for that purpose. Afterwards, Stroner would pick up McCallister a block away.

McCallister hid behind a shed and waited for McGrath’s return. When he arrived home, McCallister fired two shots at him then took off running. Untouched by either shot, McGrath telephoned the police.

McCallister hastened to the rendezvous point. There he was arrested by the awaiting Romeoville police. The shotgun was confiscated with one spent shell casing still in the chamber.

Gerard Stroner was the primary witness in his own defense. A Crest Hill police officer since 1971, he had never been arrested before the present charges were filed against him. McCallister was not his friend; however, Stroner had known him for years, having arrested him and questioned him many times about criminal activities.

Much of Stroner’s testimony corroborated that given by McCallister and the other State witnesses. Stroner admitted asking McCallister to kill William McGrath. However, Stroner testified it was not his true intent to have McGrath slain. Rather, he claimed, his true intent was to obtain evidence against McCallister regarding several murders in which Stroner believed McCallister played a part. In fact, Stroner declared that he had no specific person in mind as the hypothetical victim when he initially asked McCallister if he would accept a contract to kill someone. Later, Stroner met William McGrath and was threatened by him because he suspected Stroner was having an affair with his wife, Susan. However, Stroner denied having any such relationship. Eventually, Stroner told McCallister that McGrath was the man he wanted killed.

Stroner did not tell anyone at the Crest Hill police department about his dealings with McCallister. He felt they could not be trusted.

Stroner testified that he was hoping to either arrest McCallister for possession of a weapon or trick McCallister into making admissions about the suspected previous murders when the attempt on McGrath’s life failed.

In concluding his testimony on direct examination, Stroner admitted taking the shotgun from the police armory. However, he claimed that the shotgun shells that he gave to McCallister had been loaded with table salt. The trial judge then ordered a half-hour recess before commencing cross-examination. At that time, the following dialog ensued:

“THE COURT: All right, I’m going to direct Mr. Kielian that you not discuss the direct testimony of your client [the defendant Stroner] with him during the period of time that we are in recess.
MR. KIELIAN: How long is that recess going to be, Judge.
THE COURT: Half an hour.
MR. KIELIAN: half hour, ten after 11:00.”

No objection was levied by Stroner or his attorney; recess was taken.

During cross-examination, Stroner acknowledged that during the planning of the McGrath murder, McCallister had admitted his involvement in a shooting in Rockdale and a bank robbery in Tennessee. Nevertheless, Stroner continued with his plan and did not attempt to arrest McCallister for either of those crimes.

At the conclusion of the trial, the jury returned guilty verdicts on all three counts. Stroner was then sentenced to concurrent terms of six years on each conviction.

Several issues confront us on appeal. Initially, Stroner claims that his right to effective assistance of counsel was violated by the trial court’s order which prohibited him from discussing his testimony with his attorney during a half-hour recess between his direct and cross-examination. It is well settled that the right to counsel includes the right to the effective assistance of counsel. (Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55.) That the criminal defendant is entitled to consult with his attorney during the course of his trial is not disputed. (Geders v. United States (1976), 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330.) However, this right, as others, does not exist in a vacuum and must flex to accommodate other equally important considerations. As such, the right to consult with counsel is subject to reasonable restrictions to preserve the integrity of the truth-seeking process and to maintain an orderly trial procedure.

In the instant case, the trial judge’s order was narrow in scope. Stroner was not barred from consulting with his attorney. Rather, one topic of discussion was prohibited: the direct testimony Stroner had just given. Furthermore, the order was not without reason. It was designed to assure the integrity of the legal process, specifically the cross-examination that would immediately commence after the recess. Moreover, the duration of the proscription was 30 minutes. During this time Stroner and his attorney were free to discuss any topic other than the testimony given by Stroner during his direct examination. Accordingly, we find no violation of the defendant’s right to the effective assistance of counsel.

Next, Stroner argues that he was denied his right to effective assistance of counsel because his attorney’s law firm also represented, in a divorce proceeding, the intended victim’s wife, a prosecution witness.

A month prior to trial, Stroner entered pleas of not guilty to the three charges. On that same day, the State presented a motion to compel withdrawal of the defendant’s attorney for the very reason now raised as error by the defendant. A hearing was held on the motion with the defendant present. The following colloquy transpired:

“MR. MAZZONE: 6 6 • Now, Judge, the Law Firm of Bolden, Gray and Kleczek does not represent merely another State witness. They represent the wife of the victim in this case.
The charges against this defendant are attempt murder, conspiracy, and solicitation to commit murder. The focus of those charges are simple.
Mr. Gray represents Susan McGrath, and I feel that the case cited will show your Honor that reversal is mandated where counsel is not — either the defense has not given full and voluntary waiver of any conflict that might exist in the future, because very simply, your Honor, I don’t think the State wants to be put in a position to try such an important case or a complex case and have it reversed on the grounds that there has not been a waiver by the defendant of any conflict, and I believe a conflict does exist.
I believe that Mr. Gray’s ability to cross-examine Susan McGrath, who is the principal witness for the State, would be fettered, would be somewhat other than as ordinary.
As I understand from Susan McGrath, the dissolution of marriage between her and her husband is bitter, to say the least, and that the firm of Bolden, Gray and Kleczek possess knowledge from both sides, and I don’t believe that they can effectively cross-examine Susan McGrath because of the dual client-attorney relationship.
THE COURT: Mr. Gray?
MR. GRAY: Your Honor, Mr. Stroner is aware of the fact that we are representing Susan McGrath, who is a rather unlikely witness in the criminal prosecution.
She has been interviewed, I think, four or five times, and there are so many inconsistencies in her statements that I seriously doubt that either side would call her as a witness, but notwithstanding that, Mr. Stroner is totally aware of the fact that we are representing Mrs. McGrath and desires that we continue to represent him in this proceeding, so that there is no conflict, and from what such conflict that might exist, Mr. Stroner is prepared to waive at this time.
THE COURT: Is that correct, Mr. Stroner?
THE DEFENDANT: Yes, it is.
THE COURT: You understand that Mr. Gray and his law firm, or a member of his law firm, represents a potential witness against you in this case?
THE DEFENDANT: Yes, sir, I do.
THE COURT: And you are willing to give up whatever conflict may potentially exist because of that representation?
THE DEFENDANT: Yes.
THE COURT: You have full knowledge of these facts?
THE DEFENDANT: Yes, I do.
THE COURT: And so far as your concerned, Mr. Gray can continue to represent you, is that correct?
THE DEFENDANT: Yes.
THE COURT: Do you have any response, Mr. Mazzone?
MR. MAZZONE: Well, that’s exactly what the State was seeking.
I don’t acknowledge waiver by defendant. I think in this case — I believe a waiver is acceptable.”

The trial judge then denied the State’s motion to compel withdrawal of the defendant’s chosen counsel. The trial judge was correct.

The Supreme Court as long ago as Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461,1466, 58 S. Ct. 1019, “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

We think it clear from the record that defendant Stroner waived any conflict of interest that may have resulted from the dual representation of his counsel’s law firm. Stroner’s experience with the legal system aided his ability to appreciate the relationship of the parties and the possibility of conflicting interests. Even without such a background, Mr. Mazzone, attorney for the State, set forth in concise terms the nature of the potential for conflict.

While waiver may not be casually inferred, we cannot ignore the defendant’s own statements. Defense counsel was Stroner’s own private, chosen attorney. Stroner indicated he understood the dual representation of his attorney’s law firm and he waived any conflict that might exist. He desired his chosen attorney to continue to represent him. It is well settled that a criminal defendant has the right to counsel of his own choosing. Had the trial judge forced the defendant’s attorney to withdraw, we would, no doubt, be considering that precise point on appeal instead of the one now before us.

Stroner petitions this court to recognize that valid argument supports his notion that a per se conflict of interest may never be waived. While argument on the matter may or may not exist, the law in Illinois is settled: a conflict of interest may be waived.

We note as an aside, that the defendant’s use of the term “per se conflict of interest” is something of a misnomer. The elements of a conflict of interest must be proved just as anything else must be. The Illinois Supreme Court, however, has adopted a per se rule as regards prejudice resulting from a conflict of interest. Specifically, in People v. Stoval (1968), 40 Ill. 2d 109, the court decided that where a defense counsel, without knowledgeable assent of the defendant, might be restrained in representing the defendant’s interests due to his commitments to others, there is no necessity for the defendant to show actual prejudice. Hence, we recognize a per se prejudice rule as regards a conflict of interest. This per se rule in no way invalidates a defendant’s waiver. As was acknowledged by the court in Stoval, knowledgeable assent by the defendant, in fact, vitiates any claim of conflict of interest.

More recently, our supreme court in People v. Fife (1979), 76 Ill. 2d 418, confronted again the problem of conflict of interest. An integral element of their analysis was the amount of information possessed by the defendant about his counsel’s other professional commitments. What emerges from Fife and Stoval is that where a defendant is fully informed about his counsel’s multiple commitments and knowledgeably assents thereto, a valid waiver results. Subsequently, a defendant may not be heard to complain he was denied effective assistance of counsel because his defense counsel labored under a conflict of interest. Simply stated, a conflict of interest may be waived. Such is the case here. As discussed previously, our analysis of the record and the attendant circumstances reveals a knowing waiver by Stroner in open court.

Finally, Stroner urges this court to vacate his conviction and sentence for conspiracy to commit murder because it was based on the same acts as his conviction for attempt murder on an accountability theory. In our scrutiny of the record, we do not find this claim raised in the defendant’s post-trial motion. Eleven grounds of error were raised; none remotely relate to this issue. Supreme Court Rule 366 defines the powers of a reviewing court and our scope of review. Section (b)(2) (iii) of that rule provides that “A party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (73 Ill. 2d R. 366(b)(2)(iii).) Moreover, our supreme court similarly announced in People v. Pickett (1973), 54 Ill. 2d 280, that the failure by the defendant to raise a claim of error in the written motion for a new trial constitutes a waiver of that issue. We note, however, that at the sentencing hearing, after all post-trial motions were heard and denied, and after the State made their recommendation as to the sentencing, defendant’s counsel opened his colloquy with the following statement:

“MR. GRAY: Thank you, Judge. Up to this point, Your Honor, I have kept my nose out of this case, and I am not even sure whether the Court has ruled as to whether the conviction, whether the verdicts and whether judgment upon those verdicts must stand as to all of the offenses for which the Defendant was convicted. We have solicitation and conspiracy which are inchoate offenses, we have a conviction for a substantive offense, because although attempt murder in the statute is an inchoate offense, it’s a substantive offense, and I don’t know that where the conspiracy and the solicitation results in an attempt that the substantive offense be committed and the Defendant is convicted of that attempt, whether it is, in fact, proper for the Court to convict the Defendant of the inchoate offenses. But I’ll attempt to come back to- that.”

Defendant’s counsel never does come back to that point. The trial judge, however, does address the point before imposing sentence. He found the three offenses all part of a comprehensive series of acts but that there is sufficient distinction in the acts of the defendant over the course of time to support findings of guilty to all of the three offenses.

Regardless, this issue is waived as it was not properly preserved as required. However, under the authority of Supreme Court Rule 615, we consider the merits of defendant’s argument as substantial rights are involved. Ill. Rev. Stat. 1979, ch. 110A, par. 615(a).

The defendant relies on People v. King (1977), 66 Ill. 2d 551, to support his claim to vacate his conspiracy conviction. In King, our supreme court stated that multiple convictions may not stand where: (1) more than one offense is carved from the same physical act; or (2) when multiple acts are involved and one or more offenses are lesser included offenses. The defendant here contends that the acts which constituted the conspiracy charge are the same acts used to support the charge for attempt murder on an accountability theory. We agree. We also find the same true for the solicitation charge. We find that solicitation to commit murder is a lesser included offense of conspiracy to commit murder.

Solicitation occurs when one commands, encourages or requests another to commit an offense. Conspiracy occurs when the other party agrees to the commission of that offense and performs an act in furtherance of that agreement. Ill. Rev. Stat. 1979, ch. 38, par. 8 — 1 et seq.

We recognize a divergence of opinion on this issue. People v. Latham (1979), 73 Ill. App. 3d 995, 997-98; People v. Harvey (1981), 95 Ill. App. 3d 992,1002), and see People v. Mays (1981), 93 Ill. App. 3d 352, 355 (Justice Barry dissenting).

In Latham, the defendant was charged with conspiracy and solicitation to commit murder. Defendant and the victim’s wife engaged in a plot to kill the wife’s husband, collect the insurance money on the husband’s life, and split the proceeds. The defendant pleaded guilty to both offenses. The trial judge imposed a single sentence, believing solicitation was a lesser included offense of conspiracy. The appellate court reversed, concluding without analysis that it was ° ° obvious that neither solicitation nor conspiracy is a lesser included offense of the other.” (73 Ill. App. 3d 995, 997.) Harvey, as well as Mays, merely recite this holding without analysis.

A lesser included offense is one comprised of some, but not every element, of the greater offense. The greater offense will include every element of the lesser offense plus some other elements so that it becomes impossible to perform the greater offense without committing the lesser one. This is not only a statutory precept (Ill. Rev. Stat. 1979, ch. 38, par. 2 — 9), but also a judge made rule. Prindiville v. People (1866), 42 Ill. 217, 220.

To solicit means to ask. The statutory definition of solicitation adds to command and to order. To conspire means to agree. The statutory definition of conspiracy adds the performance of an act in furtherance of that agreement. The end sought, of course, must constitute an offense in order for either solicitation or conspiracy to be an offense.

A conspiracy or agreement would necessarily include a command, an encouragement or a request. One of these elements would have to precede the agreement. In contract terms, they would constitute the offer. The legal conspiracy would arise when two additional factors transpired. First would come the acceptance. Considered in these terms, it is clear that you could not have an acceptance without an offer. That is to say, there is nothing to accept or agree to if there is no offer in the first place. The crime of statutory conspiracy would not be complete, however, until the act in furtherance of that agreement took place. That is the second event, post solicitation, that makes the crime of conspiracy complete. Thus, it is seen that conspiracy is a crime consisting of three elements, they being request, agreement, and act. The first element constitutes the crime of solicitation. When the two additional elements are added, you have the crime of conspiracy.

Continuing one step further, we now analyze the crime of attempt murder on an accountability theory. Attempt occurs when a person does any act which constitutes a substantial step toward the commission of an offense. Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a).

The Criminal Code of 1961 provides as follows:

A person is legally accountable for the conduct of another when: # 0 ° Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (111. Rev. Stat. 1979, ch. 38, par. 5 — 2(c).)

Thus, the crime of attempt murder on an accountability theory includes every element of the crime of conspiracy plus the additional element that the act in furtherance which makes the conspiracy complete must constitute a substantial step toward the commission of the crime of murder in order to complete the crime of attempt murder. In other words, it is impossible to commit attempt murder on an accountability theory without necessarily committing the crime of conspiracy. Therefore, the crime of conspiracy to commit murder is a lesser included offense of attempt murder on an accountability theory.

From our reading of the record we believe it clear that the acts which support the conspiracy charge are the same which support the attempt murder charge. Thus, the multiple convictions cannot stand, and we vacate the conviction and sentence for conspiracy and solicitation under the King rule.

In view of the vacating of the conspiracy and solicitation convictions, we vacate the sentence as to the attempt murder conviction and remand the case to the trial court for reconsideration and resentencing as to the attempt murder conviction. Such remand is not to indicate that the six-year sentence imposed is necessarily inappropriate. Rather, it is done to indicate that sentence should be imposed free from any consideration that the defendant also stands guilty of the lesser included offenses. Sentence should be imposed as though the defendant stands convicted of the single offense of attempt murder.

For the reasons herein stated, the conspiracy and solicitation convictions are reversed. We vacate the sentence and remand to the Will County circuit court with directions to hold a new sentencing hearing on the attempt murder conviction which we affirm.

Affirmed in part, reversed in part, and remanded with directions.

STOUDER, J., concurs.

JUSTICE BARRY,

While I agree with the result reached by the majority on the first issue addressed — namely, whether the defendant was denied his right to effective assistance of counsel when the trial court ordered him not to discuss his testimony with counsel during the recess between the defendant’s direct and cross-examination — I believe that the issue merits a few additional comments in light of recently decided case law. After the parties had submitted their briefs, but prior to oral argument, the State moved to add authority by citing People v. Seider (1981), 98 Ill. App. 3d 175, 423 N.E.2d 1217. The State’s motion was allowed, and defendant was permitted to respond thereto.

In Seider, the defendant was told that he could not discuss his testimony with anyone during a recess between defendant’s direct and cross-examination. On appeal, the State argued initially that the issue was waived because defendant had failed to object to the court’s order at the time it was given and because the issue had not been presented to the trial court in defendant’s post-trial motion. The appellate court, after reviewing relevant case law, concluded that the case before it was distinguishable from Geders v. United States (1976), 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330, and People v. Noble (1969), 42 Ill. 2d 425, 248 N.E.2d 96 (wherein the United States Supreme Court and the Illinois Supreme Court found reversible error where defendants were prevented from consulting with their attorneys during recesses), in that neither the defendant nor defense counsel in Seider requested or indicated a need to confer with the other. Instead, the Seider court relied on United States v. Leighton (2d Cir. 1967), 386 F.2d 822, wherein the Second Circuit Court of Appeals held that it is not reversible error to impose an embargo order preventing a defendant from consulting with his attorney if the record does not show that defense counsel had something to discuss with the defendant.

In Leighton and Seider, as in the present case, the recess involved a relatively short period of time, unlike Geders and Noble which both involved overnight recesses. Recognizing that the trial judge needs to have broad — but not unlimited — powers in controlling the progress of the trial (Geders v. United States (1976), 425 U.S. 80, 87, 47 L. Ed. 2d 592, 598, 96 S. Ct. 1330,1334-35). I choose to review the trial judge’s determination on this issue only to consider a possible abuse of discretion.

One example of the trial court’s power and its limits concerns the power to control the timing of testimony. If, for instance, it is 3:30 in the afternoon and the next witness to testify in a criminal trial happens to be the defendant, the trial judge may legitimately inquire of counsel how long the defendant’s direct testimony is expected to take and how long cross-examination might take thereafter. With this information in mind, the trial judge may decide whether or not any part of the defendant’s testimony is to be heard before adjourning for the day. This decision is a common exercise of the trial judge’s discretion. To further order that during the overnight recess the defendant may not consult with counsel, however, is an abuse of discretion because such order impairs the defendant’s sixth amendment right to effective assistance of counsel. (Geders v. United States; People v. Noble.) Likewise, it would be an abuse of discretion to impose such an order during a dinner recess if either the defendant or his counsel expressed a need to consult during that period because, again, the order would impair the defendant’s sixth amendment rights.

On the facts before us, wherein the recess was of a relatively short duration, as opposed to overnight, and neither defense counsel nor the defendant expressed a need to consult with the other, the trial court did not abuse its discretion in ordering defense counsel not to discuss the defendant’s testimony with him over the recess. The defendant’s right to effective assistance was not impaired by the order. On this basis, I concur with the result reached by the majority.

In addition to reciting my views on the above issue, I must respectfully dissent from the majority’s views on the one-act one-crime issues presented in this case.

I agree with the majority that, if multiple convictions had been entered erroneously by the trial court, the matter would be a sufficiently serious violation of the defendant’s substantial rights as to warrant our review under the “plain error” rule. The convictions in the present case, however, were entirely proper in light of the multiple acts involved, culminating in attempt (murder) on an accountability theory. Initially, I believe that it would be less than honest not to point out that neither party has briefed or argued the issue of whether the defendant’s convictions for solicitation and conspiracy can stand in light of People v. King. In fact, the only one-act one-crime issue raised by the parties on appeal concerns whether the defendant’s convictions for conspiracy and attempt (murder) on an accountability theory may stand.

Whereas there is authority in Illinois for vacating convictions, despite failure of the parties to raise the issue on appeal where multiple convictions have been entered for a single offense (People v. Evans (1979), 80 Ill. App. 3d 87, 398 N.E.2d 1219), in my opinion this court should confine its sua sponte review of issues to those which are settled law.

In this case, the majority has determined that the defendant’s conviction for solicitation may not stand with his conviction for conspiracy. In so deciding, the majority erroneously asserts that there exists a “divergence of opinion” on the issue. Until the majority’s opinion herein, there was no such divergence. (See People v. Latham; People v. Harvey.) For this court to sua sponte overrule settled case law without affording the parties an opportunity to present arguments on this issue is contrary to the purpose of established rules for appeals which promote the type of careful consideration that a court of review is expected to apply. (Ill. Rev. Stat. 1979, ch. 110A, par. 602 et seq.) Furthermore, the majority’s analogy of the criminal offenses of solicitation and conspiracy to the offer and acceptance elements of a contract is fatally defective, as a cursory review of the statutory definitions of the two offenses readily reveals. As observed by the court in Latham:

“To prove the offense of solicitation, the State must show that an individual, with the intent that an offense be committed, requests another to commit that offense. (Ill. Rev. Stat. 1975, ch. 38, par. 8 — 1(a).) To prove a conspiracy, the State must show that an individual agrees with another to commit an offense and then performs an act in furtherance of the conspiracy. Ill. Rev. Stat. 1975, ch. 38, par. 8 — 2(a).” 73 Ill. App. 3d 995, 997-98.

Contrary to the majority’s opinion, the agreement element for conspiracy does not necessarily include a command, encouragement or request by one individual to another to commit an offense. Certainly one can agree with another to commit an offense without one party having asked the other to commit that offense. Therefore, even if this were a proper case to reconsider the one-act one-crime aspect of convictions for solicitation and conspiracy, I could not subscribe to the rationale applied by the majority herein in reaching its unprecedented conclusion.

The second one-act one-crime issue considered by the majority— whether the defendant’s convictions for conspiracy and attempt (murder) on an accountability theory may stand in light of People v. King — is, in my opinion, properly before this court. This issue, as observed by the majority, was raised in the trial court at the defendant’s sentencing hearing. Inasmuch as the issue does not concern any claim of error in the defendant’s trial, I believe that trial counsel need not have included the issue in the motion for a new trial. Instead, counsel properly preserved the issue for appeal by bringing it to the trial court’s attention at the earliest appropriate opportunity — that is, at the sentencing hearing. The parties on appeal have fully briefed and argued the question of whether the defendant may properly stand convicted of both conspiracy and attempt (murder) on an accountability theory. Having considered the arguments of counsel and relevant case law, I find that the defendant’s position must fail.

The defendant grounds his argument on appeal on People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, wherein the Illinois Supreme Court stated that multiple convictions may not stand where: (1) more than one offense is carved from the same physical act; and (2) when multiple acts are involved and one or more offenses are, by definition, lesser included offenses. The court cautioned, however, that multiple convictions and concurrent sentences are permissible in cases where multiple acts are committed which support different offenses which are not by definition lesser included. 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844.

The defendant argues on appeal that the same physical acts which constituted proof of the conspiracy charge were also used to convict him of attempt (murder) on an accountability theory. The defendant’s argument is essentially the same as that considered by the First District Appellate Court in People v. Vettese (1978), 61 Ill. App. 3d 279, 377 N.E.2d 1168.

In Vettese, the defendant and three other persons agreed to sell land owned by another without the owner’s authorization. The defendant contacted a prospective buyer and an attorney to handle the transaction. One of the defendant’s co-conspirators, after a series of other transactions, eventually signed the owner’s name to a deed of trust and a trust agreement. The fraud was thereafter discovered, and the defendant was convicted of conspiracy and attempt (theft by deception). On appeal, the defendant, relying on King, claimed that the trial court had erred in convicting him of the conspiracy charge because that charge was based on the same physical acts which supported the conviction for attempt (theft by deception). The court rejected the defendant’s argument. Initially the court found that the agreement element of the conspiracy offense was met with proof that the defendant and three others attempted to sell land belonging to another without his authorization. The second element of the conspiracy offense — an act in furtherance of the conspiracy — was met by the defendant’s act of contacting a potential buyer and offering to sell the land.

Once these acts had established the elements of conspiracy, further acts which constituted a substantial step toward completion of the agreed upon offense, whether committed by the defendant or any other member of the group, imposed on the defendant criminal liability for attempt (theft by deception). In Vettese, the substantial step to prove attempt was found to be the execution of a trust deed and letters of direction to complete the land transfer. The act constituting this substantial step was, in fact, committed by one of the defendant’s co-conspirators rather than by the defendant himself.

In the present case, as in Vetesse, the acts sufficient to comprise the conspiracy offense were completed before the substantial step to establish the second offense was taken by the defendant’s co-conspirator. The State in the present case, proved the existence of an agreement between the defendant and McCallister to commit murder. In furtherance of that agreement, the State proved that the defendant provided McCallister with a weapon and transported McCallister to the intended victim’s residence. The agreement to commit murder plus the defendant’s acts in furtherance of that agreement thus complete the offense of conspiracy. McCallister’s act of discharging the gun with the intent to kill the intended victim constituted the substantial step element of the offense of attempt (murder). On an accountability theory, this act imposed criminal liability for the additional offense of attempt (murder) on the defendant. See Vettese.

Thus analyzed, the offenses of conspiracy and attempt (murder) were not carved from the same physical acts. Nor can it be said that either attempt or conspiracy is, by definition, a lesser included offense of the other. Different elements were required to prove each offense, and it cannot be said that one offense could be established by proof of a less culpable mental state than the other. Ill. Rev. Stat. 1979, ch. 38, par. 2-9 (a).

Because the trial court properly ruled that the acts comprising solicitation, conspiracy and attempt (murder) were sufficiently distinct to sustain convictions for all three offenses, I would affirm the defendant’s convictions.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
      In re CUSTODY OF BRANDON SCOTT WILLIAMS.—(CASSANDRA Y. WILLIAMS, Petitioner-Appellee, v. WAYNE K. WILLIAMS, Respondent-Appellant.)
    Third District
    No. 81-393
    Opinion filed February 26, 1982.

      William C. Davis, Jr., of Lewistown, for appellant.
    Joseph R. Napoli and Arthur J. Inman, both of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The Circuit Court of Fulton County entered a judgment on April 30, 1980, dissolving the marriage of the petitioner Cassandra and the respondent Wayne. At the time Cassandra was pregnant, so custody of the expected child was reserved. On June 30,1980, Cassandra gave birth to a male child, Brandon Scott Williams. Subsequent to the birth of the child the parties began living with each other. The testimony is conflicting as to when this cohabitation commenced, but does establish that it was taking place from early October 1980 until December 24, 1980. In January of 1981 the father Wayne filed a petition praying for custody of the child. During the custody hearing the trial court permitted Cassandra to testify as to an alleged violent brutal beating inflicted upon her by Wayne on October 4, 1980. The testimony of Cassandra was that the injuries received from the attack upon her were so severe that she was first hospitalized in the Graham Hospital at Canton and from there she was transferred to the St. Francis Hospital at Peoria where surgery was performed to restore all the fractures above and below her eyes. She further testified that further surgery was scheduled to take place after the custody hearing.

Further evidence adduced at the hearing will be set forth and considered as the same becomes pertinent to the disposition of this appeal.

It was the decision of the trial court that custody of the minor child, Brandon Scott Williams, be awarded to his mother, the petitioner Cassandra.

The respondent Wayne first asserts that it was error for the trial court to consider evidence pertaining to the brutal beating received by Cassandra in deciding the question of the custody of the infant child.

For support of this contention the respondent Wayne relies upon section 602(b) of the Marriage and Dissolution of Marriage Act of our State, which, inter alia, provides that in determining custody of a child the court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child. (Ill. Rev. Stat. 1979, ch. 40, par. 602(b).) Does this statutory provision relegate a wanton and brutal physical beating by the father of a child’s mother to be an act of no significance when determining which parent shall be granted custody? We believe not, for the Act further provides that the court shall determine custody in accordance with the best interests of the child. (Ill. Rev. Stat. 1979, ch. 40, par. 602(a).) The trial court believed that Wayne did inflict the beating upon his wife, even though he denied doing so. For reasons to be later set forth, we agree with the trial court.

An elaboration of the physical assault on Cassandra discloses that at approximately 3 a.m., with no provocation Wayne began a diatribe of profane and filthy language. Cassandra was retreating to the kitchen when she was struck from behind on the head with such force as to propel her across the room. Wayne then sat on her chest and began hitting her in the face with his fists. Cassandra was next stripped of her clothes and forced to engage in sexual relations, during which Wayne continued to say, “I will kill you.” For several days thereafter Cassandra had spells of unconsciousness. She pleaded to be taken to a doctor and finally Wayne did so and she received hospitalization and surgery as previously set forth. Mildred Williams, mother of Wayne, testified that the morning after the beating she saw a trail of blood leading from her son’s trailer clear down a sidewalk and to a curb.

Wayne now urges that such maniacal acts should not be considered by a trial court in determining a custody question. We disagree. The conduct of Wayne serves as a beacon to the trier of fact of his potential for violence and physical harm, as was the conduct of Lonnie Abdullah in the case of In re Abdullah (1981), 85 Ill. 2d 300, 423 N.E.2d 915. In Abdullah our supreme court was concerned with an adoption proceeding, but nevertheless the question was whether the father of a three-year-old child was an unfit father because of his murder of the child’s mother. It was held that the father was unfit and that he no longer had parental rights. We are not confronted with murder in the instant case, however; the conduct of Wayne was of a degree which approaches the force necessary to commit such a crime.

It is further argued that the trial court was in error by considering the beating because of section 602(a)(6), which provides:

“§602. Best interest of child, (a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
o e #
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 40, par. 602(a)(6).

The question presented is whether that provision of section 602(a) (6) providing that the child must witness the violence bars the trial court in the instant case from considering Wayne’s violence in a custody proceeding. The child Brandon may well have witnessed a portion of the respondent’s assault, but we deem that to be of no import, for the child was of such tender age as to preclude full comprehension of the events. Whether a child must be aware of harmful conduct on the part of a custodian or proposed custodian before such conduct can be considered by a court was one of the issues raised in the case of In re Marriage of Padiak (1981), 101 Ill. App. 3d 306. In Padiak the reviewing court held that the best interests of the child may necessitate removing the child from a potentially harmful environment irrespective of the child’s state of knowledge.

The supreme court of our State has made it clear that the trial court need not refrain from modifying custody until children have suffered actual tangible harm. Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421.

The respondent further contends that the trial court’s decision was contrary to the manifest weight of the evidence. In addressing this issue we must continue to examine certain evidence surrounding the beating administered to Cassandra. Wayne denies that he was the perpetrator of the assault and his testimony implied that a friend, Roger Wilcoxen, could well have been the guilty party. Wilcoxen and his wife had been guests of Wayne and Cassandra during the evening of October 3 and into the early hours of October 4, 1980. Wayne subpoenaed Wilcoxen, but never called him as a witness at the custody hearing. We also note that prior to the custody hearing Wayne requested that any evidence relating to the alleged striking of Cassandra by him be excluded. It defies logic to conclude that this request was made for the protection of anyone’s interest other than Wayne’s. We further deem it significant that after Cassandra was seriously harmed it was Wayne who for three days kept her confined in the trailer and refused to permit her to have medical attention. The mother of Cassandra testified that when she attempted to phone her daughter on October 5,1980, it was Wayne who answered and informed her that Cassandra was asleep. Later in the day the mother again attempted to call her daughter, but Wayne again stated that she was asleep. The following day Cassandra’s mother again attempted to reach her daughter by phone and was informed by Wayne she was sick and couldn’t come to the phone; however, he indicated that the illness was nothing serious.

During the hearing Wayne testified that he regularly attended church; however, the pastor of the church testified that he hadn’t attended in the year of 1980, but commenced attending a few months prior to the custody hearing, which would be the approximate time that he filed his petition for custody.

Wayne further testified that he was paying child support for two children from a prior marriage and that his payments were almost paid to date. Evidence from the circuit clerk’s office disclosed that he was approximately $5,000 in arrears in his payments.

The cross-examination of Wayne and the testimony of other witnesses destroyed Wayne’s credibility, and the trial court was correct when it in effect stated in written correspondence to the parties that it did not believe Wayne was the fit parent which he attempted to portray.

For the reasons set forth the judgment of the Circuit Court of Fulton County is affirmed.

Affirmed.

BARRY, P. J., and ALLOY, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALAN D. ROBINSON, Defendant-Appellant.
    Third District
    No. 81-85
    Opinion filed February 26, 1982.

      Robert Agostinelli and Thomas Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Carl E. Hawkinson, State’s Attorney, of Galesburg (John X. Breslin and Rita K. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Alan D. Robinson was charged, tried before a jury and convicted on a charge of delivery of cocaine in excess of 30 grams, and was sentenced to 20 years imprisonment. Ronald Guerrero had been arrested on November 6, 1979, for selling one-half gram of cocaine, and he offered to assist the police in setting up a drug buy with his dealer in return for leniency. The delivery was made by Robinson on November 13,1979, to Guerrero in his home in Galesburg, Illinois, and was filmed on video tape by a camera previously installed by the police with Guerrero’s consent. The camera was placed upon a living room shelf pointing towards the kitchen. The film showed defendant primarily in profile, giving Guerrero a bag in exchange for money. The price was $1,950 per ounce. During the transaction, defendant stated that he might be able to get some more, and on December 5, 1979, pursuant to a court order, the police installed a wiretap on a hotel telephone in Galesburg from which Guerrero called defendant three times to try to arrange a deal. The transaction was never completed. Defendant was charged on January 8, 1980, but he was not arrested until June of 1980. He has appealed from his conviction and sentence, asserting that it was error (1) to exclude his alibi evidence; (2) to admit a tape recording of a December 5 conversation concerning another possible transaction; (3) to permit in-court identification of defendant by two agents who had monitored the video transaction; (4) to display and admit into evidence profile photographs of defendant; (5) to admit two instances of hearsay evidence; (6) to allow several instances of prosecutorial misconduct during closing arguments; (7) for the legislature to classify cocaine as a Class X felony; and (8) to impose a 20-year sentence.

Defendant’s first assertion of error is the exclusion of his alibi defense. Defendant had been ordered to file his answer to the State’s pretrial discovery by August 5, 1980, but he filed nothing until 4 p.m. on Friday, October 3, when he submitted a discovery answer indicating that he would present an alibi defense with evidence that he was in Peoria at the time of the offense and that his witness would be John Stringer. Prior to trial commencing on October 6, defense counsel explained that he had just learned Stringer’s name on October 2, and that defendant had been in a different town, Creve Coeur, the night of the crime, not in Peoria as previously stated. Defense counsel stated that Stringer was then in the courthouse and available to the State for interviewing. The trial court granted the State’s motion in limine to exclude the alibi defense on the ground that it was not timely and that the State would not have time to investigate the asserted alibi. The trial began on October 6, but was recessed for one week when defendant was injured in an automobile accident on the morning of Tuesday, October 7.

Late on Friday, October 10, defense counsel filed a motion to reinstate the alibi defense and listed a second witness. The court again denied the motion as not being timely, and trial resumed on Tuesday, October 14. Monday, October 13, was a holiday. During the trial, defendant took the stand in his own behalf. The court ruled that he could not say where he was on the night of the crime; he could only testify that he was not at Guerrero’s house. On appeal defendant argues that it was error to exclude his alibi evidence, both on October 6 and again on October 10, and that it was also error to prevent him from testifying to his alibi at trial.

The trial court’s authority to exclude evidence is based upon Supreme Court Rule 415(g) (Ill. Rev. Stat. 1979, ch. 110A, par. 415(g) (i)), which provides that if it is brought to the attention of the trial court that a party has failed to comply with a discovery rule, the court may, among other sanctions, exclude such evidence. The Illinois Supreme Court held in People ex rel. Carey v. Strayhorn (1975), 61 Ill. 2d 85, 329 N.E.2d 194, that the Supreme Court Rules for discovery in criminal cases, including Rule 415, apply to the defense of alibi. Whether alibi evidence should be excluded in a particular case is, of course, a matter for the discretion of the trial judge who must weigh all applicable factors in order to reach a just result. Some cases have decided that it was error, in the circumstances there present, to exclude alibi witnesses if the witnesses were disclosed in time for the prosecution to interview them before they testified. (E.g., People v. Mahdi (1980), 89 Ill. App. 3d 947, 412 N.E.2d 669.) However, there are other cases which have held that exclusion of alibi witnesses was an appropriate sanction, justified by the facts and circumstances of those cases. In People v. Short (1978), 60 Ill. App. 3d 640, 377 N.E.2d 389, where the State was not advised of the alibi defense until trial was in progress,

this court noted that the State needed time and opportunity to investigate the alibi defense, and then held that the trial judge did not abuse his discretion in excluding the evidence regarding the alibi defense. In a more recent decision, the reviewing court observed that the defendant waited until the day of trial, which was the 117th day of his term, to notify the State of his alibi defense. (People v. Braxton (1980), 81 Ill. App. 3d 808, 401 N.E.2d 1062.) The court said, “The sudden discovery of the alibi and production of his wife as an alibi witness at this late date suggests recent fabrication * * V (81 Ill. App. 3d 808, 815, 401 N.E.2d 1062, 1067.) In Braxton there was nothing to show that the defendant could not have produced his alibi witness at an earlier date.

In the case at bar, defendant has asserted that on the night of November 13, 1979, he had looked at a car that was for sale on the street of Creve Coeur and had talked to someone whose name he did not know at the house where the car was parked. Hence, it took some time to locate the alibi witness. Defendant also argues that the State had ample time to investigate his alibi defense during the week the trial was recessed. However, no alibi proposal was pending, since that period of time came after the court had ruled to exclude the evidence. Defendant does not explain why he did not renew his motion for an alibi defense immediately after the trial was recessed; the record reveals only that he waited until late in the day on Friday before trial was to begin again. The trial court noted that defendant knew where he had been all along, and there was no excuse for not giving notice of his intention to assert an alibi even before he had located the witnesses. We cannot say that the trial court erred in excluding the witnesses. While the circumstances surrounding disclosure of witnesses make this a close case for the relatively drastic sanction of exclusion, the other evidence, showing clearly that defendant was present in Galesburg on the night in question, makes it unlikely that this ruling would have been prejudicial, even if it was error. We think no error occurred.

Defendant also asserts that, even if the exclusion of his witnesses was not error, it nonetheless was error to prevent him from testifying in his own behalf to his whereabouts the night of the crime. Defendant notes that there are no Illinois cases on this point, and he argues that the better view has been adopted in those jurisdictions that have permitted the defendant to testify to his own alibi even though the alibi notice statute was not complied with. For example, in People v. Rakiec (1942), 289 N.Y. 306, 45 N.E.2d 812, it was held that the alibi statute applies only to witnesses other than defendant because the purpose of the statute is to enable the prosecution to learn something about the witnesses whom the defendant intends to call. The court reasoned that it was necessary as to the defendant himself since he is always fingerprinted and investigated before trial anyway. Rakiec has been followed in other States, including Iowa. (State v. Lanphear (1974), 220 N.W.2d 618), South Dakota (State v. Hibbard (1978), 273 N.W.2d 172), and Michigan (People v. Merritt (1976), 396 Mich. 67, 238 N.W.2d 31). In Merritt, the court noted that the purpose of the notice of alibi statute is to facilitate orderly, uninterrupted trials by providing advance notice of witnesses to be investigated, and that where the defendant fails to give early notice of an alibi, his own credibility will be so severely weakened in the eyes of the jury as to offset any disadvantage to the State from the surprise.

Other States have reached a different result. In an Indiana case, Hartman v. State (Ind. App. 1978), 376 N.E.2d 100, the court noted that earlier decisions had held that “the notice statute served the truth-finding process by protecting the state from easily fabricated ‘eleventh hour’ defenses, and by enabling the state to make adequate trial preparation • * * when such statutes place reciprocal burdens of disclosure upon the state, they are not violative of the defendant’s due process rights ° ° (376 N.E.2d 100, 105.) New Jersey, Wisconsin, and Kansas all recognize that defendant’s own alibi testimony is subject to exclusion to the same extent as the testimony of other alibi witnesses. See State v. Francis (1974), 128 N.J. Super. 346, 320 A.2d 173, and cases cited therein.

We find the reasoning in Hartman to be persuasive. If defendant had a bona fide alibi, he could have given the State timely notice of his intention to assert such an alibi by his own testimony, at least, even before he located corroborating witnesses. There is no suggestion here that defendant had any reason for not knowing where he was the night of the crime. We therefore hold that the trial court did not err in ruling that defendant could not testify as to his location the night of the crime and was limited to denying that he was at Guerrero’s house.

Defendant also argues that the error of excluding his alibi testimony was aggravated by the prosecutor’s closing argument where, after stating that defendant said he wasn’t at Mr. Guerrero’s house, the prosecutor went on, “Does he say anything else?” Defendant asserts that this was unfair comment upon his failure to say where he was, when in fact the court had limited his testimony to a statement that he was not at Guerrero’s house. We are inclined to agree that it was error for the prosecutor to comment upon the exclusion of evidence, but given the strong evidence that defendant was in fact at Guerrero’s house, we do not believe the improper comment amounted to prejudical error.

Defendant next contends that the court erred when it admitted into evidence the tape of a telephone conversation occurring on December 5, 1979, between Guerrero and defendant which was represented as being a discussion of another possible drug deal. Defendant says this tape was evidence of other crimes and as such, was not admissible since it did not qualify under any of the exceptions permitting such evidence to be used. The State points out that the conversation on the tape does not in fact contain evidence of any other crime since the discussion did not result in a deal being consummated.

Defendant also says that Guerrero’s identification of him as the person talking was so weak that use of the tape was not justified. We observe at this point that we have listened to the conversation and note that the person answering the call is identified as “Al” and answers to that name. During the conversation it is apparent that Guerrero is trying to arrange a transaction for that night while “AI” wants to wait 24 hours and tells Guerrero that he must wait his turn. There is reference to “last time” and a discussion of whether the product is “rock” and whether it is as “good as the last.” From these remarks, we think it clear that both parties are making reference to a previous cocaine transaction which Guerrero identifies as the deal for which defendant is on trial.

In view of the fact that defendant’s name is Alan, and in view of Guerrero’s positive identification of defendant’s voice (which was corroborated by a police officer who also recognized the voice as that of defendant), we conclude that the evidence of identification was sufficient for purposes of relevancy.

Whether the tape amounts to an admission that defendant committed the crime for which he is charged is a question for the jury to determine. We believe that the trial court did not abuse its discretion in admitting the conversation for the purpose of showing defendant’s method of dealing, his guilty knowledge of cocaine sales, and to show his participation in the earlier transaction.

Defendant next contends that it was error to permit an in-court identification of defendant by the two special police agents who had watched the transaction on the video monitor set up in Guerrero’s garage on the night of November 13. The video monitor permitted the special agents to see on a television screen the same picture that was being recorded on the video tape. Defendant argues that the agents lacked personal knowledge upon which to base their identification of defendant because they had never seen him in person, and that an identification based upon the video monitor was at best an opinion or conclusion of the witness. Defendant also attacks the agents’ identification on the ground that it was an improper bolstering of Guerrero’s identification of defendant.

We believe these contentions are without merit. In the first place, it is not error for the trial court to receive cumulative evidence that would otherwise be admissible. (People v. Nahas (1973), 9 Ill. App. 3d 570, 292 N.E.2d 466.) Hence, there is nothing intrinsically wrong with evidence that bolsters or corroborates other evidence if it is material and relevant to the case.

Secondly, the agents testified to what they observed upon the video monitor screen, and identified Guerrero and defendant as the two men they had observed. All identification testimony is to some extent conclusional in that the witness must conclude that the person previously seen has enough characteristics like the person in court to be that same person. The fact that these witnesses are basing their in-court identification upon the moving picture they observed on a video monitor does not make the identification inadmissible. We conclude that this testimony consisted of the witnesses’ observations and was properly admitted into evidence. (People v. Maxey (1976), 37 Ill. App. 3d 905, 346 N.E.2d 51.) Furthermore, we agree with the State that even if it had been error, it would not be prejudicial because the jury was able to view the video tape for itself. According to the police agents, the video tape portrays exactly what they viewed upon the monitor. Thus the jury was aware of the basis of the agents’ identification of defendant and could accept or reject the testimony based on their own view of the tape. Error, if any, was harmless.

The next error assigned by defendant was the admission into evidence of three photographs of defendant taken about two months before trial that show a side view of his head and upper body. These photographs were displayed to the jury during the showing of the video tape so the jury could compare the profile photos with the profile views on the tape. Defendant argues that the photographs were not relevant, that they were used to bolster the identification of defendant, that they were not probative, and that the trial court abused its discretion to defendant’s great prejudice. The photographs show defendant without a mustache, and the man identified as defendant on the video tape did have a mustache, but this type of superficial difference in appearance would not, in our opinion, render the photographs irrelevant. It is within the discretion of the trial court to determine the admissibility of photographs that would be of assistance to the jury in resolving factual issues. (Cf. People v. Nicholls (1969), 42 Ill. 2d 91, 245 N.E.2d 771.) Certainly the receipt of corroborative evidence is not error if the evidence is otherwise admissible. In addition, we note that defendant was present during the showing of the video tape and thus was available for an even more effective comparision with the person shown on the tape. Any potential prejudice to defendant was eliminated by virtue of his presence in person. We find no abuse of discretion in admitting the profile photographs into evidence.

Next, defendant argues that two instances of hearsay testimony were improperly admitted into evidence. First, Agent Flanagan testified to a conversation with Guerrero which led to the arrangements being made for the November 13 transaction. During the conversation, according to Flanagan, Guerrero identified defendant as being ready to sell four ounces of cocaine for $1,950 per ounce. The trial court overruled defendant’s hearsay objection. The State claims that any error is waived because defendant did not include it in his post-trial motion. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) We agree, but even if the issue had not been waived, we would find no error because the out-of-court declarant, Guerrero, testified to the same conversation and was available for cross-examination. The hearsay rule does not apply in such a case. People v. Gan (1979), 75 Ill. App. 3d 72, 394 N.E.2d 611.

Defendant also argues that it was impermissible hearsay when Flanagan testified that he located defendant’s address in Bloomington, Illinois, by contacting the registrar’s office at Illinois State University in Normal, Illinois, just prior to November 1979. This testimony came during redirect examination of the witness Flanagan after defendant had brought out on cross-examination that the telephone number Guerrero called on December 5 was registered to Larry Wenger on Arcadia Drive in Bloomington, Illinois. This evidence of defendant’s November address was not admitted to prove where he was actually residing at that time but rather to show how a phone number was located. Defendant himself testified that he had lived in Bloomington in November. We see nothing erroneous in the receipt of Flanagan’s testimony, and even if it was error, defendant waived this issue by failing to object either during trial or in his post-trial motion.

Defendant next contends that his conviction should be reversed because of several instances of prosecutorial misconduct which, if taken together, would amount to plain error of sufficient gravity to require a reversal. Stated briefly, defendant lists as improper conduct: (1) reference during closing argument to the absence of alibi testimony; (2) reference to evidence of other criminal conduct in the taped telephone conversation; (3) the emphasis of the agents”identification of defendant from the video monitor; (4) use of irrelevant profile photographs of defendant; (5) the replaying of the video tape during closing arguments with the action being stopped to focus attention of defendant’s profile; (6) reference in closing argument to one of the jurors’ experience with people who used drugs while in Viet Nam. Defendant insists that the cumulative effect of the prosecutor’s misconduct is plain error.

As the State points out, defendant waived any error in the playing of the video tape during closing argument by failing to object, and similarly he waived the improper reference to the experience of one member of the jury by not objecting. The other instances of allegedly improper conduct have already been held not to have been erroneous, with the exception of the prosecutor’s comment upon defendant’s failure to testify where he was the night of the crime. In the context of the entire trial, we have concluded that the prosecutor’s comment was not so prejudicial as to constitute reversible error.

Defendant also claims to have been deprived of his constitutional right to a fair trial by the cumulative effect of the trial errors, particularly those errors which permitted the State to bolster Guerrero’s identification of defendant. As indicated previously, the State is permitted to bolster its case with corroborative evidence to the extent such evidence is otherwise relevant and the possible prejudice of any unnecessary accumulation of repetitive testimony is a matter for the discretion of the trial court. We believe the State is to be commended for a well-prepared, carefully documented case. We frankly cannot imagine any reasonable person concluding that the defendant was unfairly prejudiced by the corroborative evidence offered here by the State. We suspect that the simple fact is that the truth hurts.

Defendant also argues that the classification of the crime of delivery of more than 30 grams of cocaine as a Class X felony (Ill. Rev. Stat. 1979, ch. 56M, par. 1401(a)) was unconstitutional because cocaine is a nonnarcotic substance and should not be classified with the delivery of narcotic substances. While this appeal was pending, the Supreme Court of Illinois ruled the statute constitutional, holding that cocaine may be classified with narcotic substances for penalty purposes. (People v. McCarty (1981), 86 Ill. 2d 247, 127 N.E.2d 147.) This decision disposes of defendant’s argument.

Finally, defendant argues that the sentence of 20 years imposed by the court was excessive and that the trial court took an excessively harsh view of selling cocaine which is not a narcotic and which does not result in any serious harm. Without reciting all the factors defendant would have us consider, we think it sufficient to say that the penalty imposed by the trial court was well within the'bounds of 6 to 30 years provided by statute, especially when we consider that defendant dealt in large quantities of cocaine, that he had a prior felony conviction, and that our legislature has determined that cocaine does present a serious threat to society.

For the reasons stated, we affirm the conviction and sentence.

Affirmed.

SCOTT, P. J., and ALLOY, J., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff and Respondent-Appellant, v. MARGARET ANN KINION, Defendant.—(BRAUD, WARNER, NEPPL & WESTENSEE, LTD., Petitioner-Appellee.)
    Third District
    No. 81-258
    Opinion filed February 26, 1982.

      James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Dennis A. De Porter and Walter D. Braud, both of Braud, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellee, pro se.

   JUSTICE STOUDER

delivered the opinion of the court:

On November 27, 1979, defendant Margaret Ann Kinion, an accountant for the City of Rock Island, was indicted for 63 counts of felony theft. For an initially proposed fee of $20,000, petitioner Braud, Warner, Neppl, and Westensee, Ltd., a Rock Island law firm, agreed to represent her in the criminal action. As defendant lacked sufficient funds, she gave petitioner a second mortgage on her home and subsequently deeded the law firm any interest she might possess in the realty.

Raising the issues of fitness to stand trial and insanity, petitioner concluded that psychiatric examination was necessary. On May 30, 1980, defendant filed a petition for payment of psychiatric expenses, alleging that she was a poor person without employment, income, or funds; and that the Rock Island Bank had begun foreclosure proceedings against her home. This was followed, on June 12, 1980, by a motion to declare the accused indigent. The motion alleged that defendant had been suspended from her position; her car, repossessed; her furniture, being replevied; her attempts to sell her home, futile; and her ability to pay her attorney fees and costs of defense, nonexistent. On June 16,1980, the indigency motion was heard. It was established that defendant had no funds nor investments, was receiving no unemployment compensation as she had been suspended, not terminated, and had had her bail loaned by a friend. A realtor testified that defendant’s home had been listed at $78,000, had a first mortgage of over $43,000, and had a fair market value of $55,000 to $60,000. Defendant suggested that her bail be reduced and the freed monies be used to pay for her psychiatric examinations, but this was opposed by the State. The court denied the motion to reduce bail, but adopted petitioner’s further suggestion that funds from the sale be first applied to the cost of the examinations and then to petitioner’s fees. Petitioner expressly stated that it was not seeking its fees from the court, and the court ordered that the county would pay for the examinations if defendant had no assets. No dollar figure was requested nor mentioned.

On September 2, 1980, defendant filed a motion for payment of witness fees, alleging her indigency and requesting the appointment of four experts to determine her fitness for trial. The following day she filed an application for indigency and payment of legal and expert witness fees, requesting the appointment of petitioner as her attorney. On September 16,1980, defendant filed a renewed motion for declaration of indigency. The motions were heard on September 19,1980, and the court reserved its ruling. A subsequent hearing was held on October 23,1980. It was established that the bank had to purchase defendant’s home for $47,200, the actual amount of its mortgage, as there were no bids at or above that price. The court declared defendant an indigent and appointed petitioner her attorney “for the conclusion of the proceedings.” On December 2, 1980, after a four-week jury trial, defendant was found guilty. She has appealed her convictions to this court, but those appeals are presently pending in separate and unrelated appeals.

On December 22, 1980, petitioner filed a corrected petition for attorney fees and costs. The petition requested expert witness fees in the amount of $10,233.80 and attorney fees and costs in the amount of $28,606.35. On May 6,1981, the trial court issued its opinion and ruling on petition for fees. The court concluded it had the discretion to appoint petitioner as defendant’s attorney and that the effective date of the appointment was September 3, 1980. Finding that petitioner had, since that date, spent 151 hours in court and 54 hours out of court, it awarded fees of $5,390 and costs of $1,110. Concluding that the county should pay for all expert witness fees accrued from May 30, 1980, the court awarded such fees in the amount of $9,073.

On appeal, the State contends the trial court erred in appointing petitioner as defendant’s attorney, and in its award of fees and costs.

Considering first the propriety of the trial court’s appointment of petitioner as defendant’s attorney, the State has advanced three arguments in support of its position. It contends the agreement between petitioner and defendant bars such appointment, that petitioner was estopped to seek such appointment, and that defendant was not shown to be indigent.

While the parties have each advanced their arguments concerning the validity of the contract of retainer, we shall not here consider the interesting question concerning the nature and sufficiency of its consideration. We instead look to section 113 — 3(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 3(b)):

“In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel. 060 [I]f the defendant requests counsel other than the Public Defender and the court finds that the rights of the defendant will be prejudiced by the appointment of the public defender, the court shall appoint as counsel a licensed attorney at law of this State 0 9 9.”

It can be seen that the two factors which must guide the trial court in appointing counsel are indigency and the desire of a defendant for counsel. This is no more than statutory recognition of the principle that the right of an accused to counsel under the sixth amendment cannot be dependent upon ability to pay for an attorney’s services. (People v. Cook (1980), 81 Ill. 2d 176, 407 N.E.2d 56.) Defendant here specifically requested an attorney, manifesting the requisite desire for counsel. The question of her indigency will be considered hereafter. The appropriateness of appointing private counsel is not before us as it was first raised in the State’s reply brief, but we note the appointment considered the significant amount of time petitioner had expended on this matter before appointment. Were we to hold that the existence of a contractual relationship between a defendant and attorney barred a court from appointing counsel, we would undermine both the express intent of the statute and its constitutional underpinnings. This we decline to do. In so declining, we express no opinion as to any action sounding in contract. We likewise express no opinion regarding the State’s contention, irrelevant to our determination of this issue and raised in its reply brief, that petitioner had an ethical obligation to continue its representation without compensation.

The State’s second argument in support of its position that the trial court erred in appointing petitioner is that petitioner was estopped from accepting the appointment. The State contends that the estoppel stems from petitioner’s representation in the initial indigency petition, that it would “continue to represent your defendant without cost, and that no application will be made to the State for payment of attorney’s fees,” and its later statement at the June 16, 1980, hearing that “[w]e are not asking that the court pay for or appoint counsel. We are accepting as part of the risks in being an attorney that occasionally our clients are unable to pay for us.”

While the State does not explain the theoretical basis of its estoppel argument we note two factors. To be actionable, a false representation must generally relate to an existing or past event, not to a promise or prognostication concerning a future happening. (Sinclair v. Sullivan Chevrolet Co. (1964), 31 Ill. 2d 507, 202 N.E.2d 516.) In addition, an essential element of estoppel is reliance. (Finley v. Finley (1980), 81 Ill. 2d 317,410 N.E.2d 12.) We cannot see how the State, the adverse party in the fee aspect of this case, relied upon petitioner’s assertion. If the trial court so relied, as this appears to be the implied argument, we note no fees were awarded to petitioner for work prior to September 3,1980. Thus, as to the relevant period, the representation did not prove to be false. Under these circumstances, we do not find petitioner was estopped from accepting the appointment.

The State’s third argument in support of its position on this first issue is that it was not shown that defendant was indigent. The State posits that she possessed an equity of between $11,000 and $16,000 in her home and failed to exercise her right of redemption. It appears the estimate of equity is based upon the appraisal value of the realty; however, the fact that the bank was unable to find a buyer at $47,200 belies such value. The reality of the matter is that she possessed no equity in her home. As for her failure or petitioner’s failure to exercise the right of redemption,, this would have required the outlay of the above sum plus interest for an asset apparently worth less. We fail to see how this could bear on the question of indigency. We therefore find the trial court correctly declared defendant to be indigent. Finding no merit in the State’s three arguments, we affirm the court’s order of appointment.

Considering next the trial court’s award of fees and costs, we first turn to its award of attorney fees and costs, and conclude with a discussion regarding its award of expert witness fees.

An award of attorney fees to an appointed attorney who represents an indigent accused is governed by section 113 — 3(c) of the Code (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 113 — 3(c)):

“Upon the filing with the court of a verified statement of services rendered the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee. In counties with a population of not more than 2,000,000, the court shall consider all relevant circumstances, including but not limited to the time spent while court is in session, other time spent in representing the defendant, and expenses reasonably incurred by counsel. * # *”

The State advances two arguments in support of its position that the $6,500 fee was excessive. It contends the statutory maximum of $1,000, applicable, in the absence of extraordinary circumstances and protracted representation, in felony cases in counties of over 2,000,000 (111. Rev. Stat., 1980 Supp., ch. 38, par. 113 — 3(c)) should here apply; and that the court erred in awarding fees from the date they were first requested.

Before December 28, 1979, this limitation would have been here applicable (see Ill. Rev. Stat. 1979, ch. 38, par. 113 — 3(c)), however; the language of the present statute clearly eliminates it in counties with a population of less than 2,000,000, a distinction one court has concluded “is a result of legislative oversight.” (People v. Johnson (1981), 93 Ill. App. 3d 848, 852, 417 N.E.2d 1062, 1064, affd (1981), 87 Ill. 2d 98.) The statutory standard to be here applied is one of reasonableness. After an examination of standards applied in other jurisdictions, our supreme court concluded:

“[W]e believe that reasonable compensation ‘should reimburse assigned counsel for his overhead and yield something toward his own support.’ (State v. Rush (1966), 46 N.J. 399, 413, 217 A.2d 441, 448.) • • *
The formula for reasonable compensation should be the hourly fee normally charged for comparable trial court services, less an amount adequate to satisfy the pro bono factor.” People v. Johnson (1981), 87 Ill. 2d 98,106.

The petitioner received a per diem of $180, an appearance fee of $50, and an out-of-court hourly rate of $8.12. Due to the time of its appointment, petitioner received no compensation for 16 hearings and 190 hours spent out of court. The jury trial involved 63 criminal counts, over 100 exhibits, and 21 witnesses. Petitioner did not seek compensation for its initial work in this case, nor does it presently seek an increase in its award. Noting the lack of a cross-appeal, we affirm the trial court’s award as reasonable compensation.

The State also argues that the court erred in awarding attorney fees from the date they were first requested. It contends that as petitioner was not appointed until October 23,1980, fees should not have been awarded from September 3,1980, the date of defendant’s application for indigency and payment of legal and expert fees. The court reserved its ruling as to defendant’s indigency and subsequently found that she was indigent at the time of the above application. This being the case, we find no error in awarding fees from the date they were first requested.

Turning finally to the propriety of the trial court’s award of expert witness fees, the State has advanced three arguments. It contends the court erred in awarding any fees as defendant was not shown to be indigent, or in the alternative, that the statutory maximum of $250 should here apply; and that the court erred in awarding fees from the date they were first requested. Having determined that defendant was indigent, we shall only consider the final two arguments.

One of the statutory provisions dealing with compensation of experts is contained in section 113 — 3(d) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 3(d)):

“In capital cases, in addition to counsel, if the court determines that the defendant is indigent the court may, upon the filing with the court of a verified statement of services rendered, order the county treasurer of the county of trial to pay necessary expert witnesses for defendant reasonable compensation stated in the order not to exceed $250 for each defendant.”

While on its face, the statute would seem to impose absolute limitations, we do not find this to be the case. Our conclusion is based on the case and statutory law of this State, as well as the unusual circumstances of the case at bar.

In People ex rel. Conn v. Randolph (1966), 35 Ill. 2d 24, 219 N.E.2d 337, five members of the bar of this State filed a petition for writ of mandamus against various State officials to compel the payment of legal fees and expenses. The fees and expenses totaled approximately $31,000, and the statute then in force (Ill. Rev. Stat. 1965, ch. 38, par. 113 — 3) limited reimbursement to $250'in attorney fees and, as now, $250 in expert witness fees. The respondents argued that the court’s decision in People v. Zuniga (1964), 31 Ill. 2d 429, 202 N.E.2d 31, cert, denied (1965), 380 U.S. 977, 14 L. Ed. 2d 273, 85 S. Ct. 1332, where the court held that the appointed attorney could not challenge the constitutional validity of the limitation in his own right, barred an award in excess of $500. While the factual differences between Randolph and the case at bar are far too great for us to consider it as precedent in this case, we note the words of the court:

“At this time it is necessary to hold only that in the extraordinary circumstances presented in this case, the court’s inherent power to appoint counsel also necessarily includes the power to enter an appropriate order ensuring that counsel do not suffer an intolerable sacrifice and burden and that the indigent defendants’ right to counsel is protected.
If such judicial power did not exist, the courts probably could not proceed, and certainly could not conclude the trial of indigent defendants in cases such as this. To permit the petitioners to withdraw after nine weeks of trial would be a prodigious waste of resources already spent, and would provide no assurance that a dilemma similar to the one existing now would not likewise result after the appointment of new counsel. We hold that upon the record presented here the petitioners are clearly entitled to payment of their costs and fees forthwith, as ordered by the trial court. A permanent solution to the problem presented is an appropriate subject for the legislature. The problem having now been exposed we trust that the General Assembly will respond. [Citation.]” (People ex rel. Conn v. Randolph (1966), 35 Ill. 2d 24, 29, 219 N.E.2d 337, 340.)

Thus there is a judicial power, albeit limited (see People v. Sanders (1974), 58 Ill. 2d 196, 317 N.E.2d 552), to exceed the limitations of the statute.

While resting on a constitutional basis rather than on the concept of a judicial power, the limitations of the statute were again exceeded in People v. Watson (1966), 36 Ill. 2d 228, 221 N.E.2d 645. In Watson, the court concluded that the opinion of a handwriting expert may have been crucial, and the defendant’s lack of funds prevented him from presenting evidence which may have established his innocence. The court explained:

“[I]n certain instances involving indigents, the lack of funds with which to pay for the witness will often preclude him from calling that witness and occasionally prevent him from offering a defense. Thus, although the defendant is afforded the shadow of the right to call witnesses, he is deprived of the substance.
The value of an expert witness’s testimony lies in his experience and, more particularly, in his preparation. Although a subpoena would suffice to compel his appearance at trial, this appearance by itself would be of no value unless he had been able to make findings upon which to base his testimony. It is the cost of making these preparatory findings which the defendant feels should be borne by the government.
O « «
Whether it is necessary to subpoena expert witnesses in order to assure a fair trial will depend upon the facts in each case. * ° (People v. Watson (1966), 36 Ill. 2d 228, 233-34, 221 N.E.2d 645, 648.)

The court extended the statute to certain noncapital felonies and allowed a reasonable fee for the purposes of hiring the expert; however, “[whether the $250 limit stated in section 113[(d)] is the limit of the reasonable allowance is left somewhat uncertain by the opinion.” (People v. Vines (1976), 43 Ill. App. 3d 986, 989, 358 N.E.2d 72, 74.) A discussion of preWatson cases on the issue is found at Annot., 34 A.L.R.3d 1256, 1264 n.12 (1970). In Vines, the court concluded the desired expert testimony would not be probative on a crucial issue.

We also note with approval the following dictum from People v. Johnson (1981), 93 Ill. App. 3d 848, 852, 417 N.E.2d 1062, 1065, affd (1981), 87 Ill. 2d 98:

“We also observe that although the services of medical doctors and psychiatrists are often required in court proceedings concerning indigents, these licensed professionals are not expected to donate their services. Such professionals are compensated in full for services provided to the courts.”

Thus the question becomes whether that compensation be provided by the indigent, who by his very nature cannot; or by the county of trial, which already bears an onerous financial burden.

The statutory law of this State recognizes this situation. Section 104 — 13 of the Code mandates the appointment of one or more physicians, psychologists, or psychiatrists, chosen by the court, when fitness for trial involves mental condition (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 13(a)), and one or more physicians and other appropriate experts when the issue of fitness involves physical condition (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 13(b)). The section further allows an expert chosen by an indigent defendant and who is allowed a reasonable fee. (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 13(e).) Section 115 — 6 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 6), in addition to providing experts chosen by the State, allows the court to “order additional examinations if the Court finds that additional examinations by additional experts will be of substantial value in the determination of issues of insanity or drugged conditions.” We also note that section 113 — 3(c) of the Code (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 113 — 3(c)) orders the court, in counties of under 2,000,000 people, to “consider all relevant circumstances, including 900 expenses reasonably incurred by counsel.”

It can be seen that, in various circumstances, the legislature has provided the means for a trial court to appoint experts, limited neither in number nor fee. In the case at bar, the court stated that in the event defendant had no assets, the county would bear the expense of the psychiatric examinations. No contention is made that the fees are unreasonable. While but for the unusual circumstances of this case we might hold otherwise, we find sufficient support in the case and statutory law of this State to allow the court to exceed the $250 limitation. In so holding, we carve no general rule nor approve of the expenditure of unlimited funds. We believe the better practice would be to specifically petition for the greater sum before spending it, as was unsuccessfully attempted in People v. Vines (1976), 43 Ill. App. 3d 986, 358 N.E.2d 72. A defendant who fails to do so successfully must bear the risk that public funds will be denied.

The State’s final argument is that the trial court erred in awarding expert witness fees from May 30,1980, the date they were first requested. In its opinion and ruling on petition for fees, the court expressly and correctly concluded “that there was no showing of indigency prior to September 3, 1980 * 0 This being the case, the county bears no responsibility for payment of the fees before that date. It is therefore necessary to reverse the court’s assessment of expert witness fees and remand this cause for determination of fees accrued after that date.

Accordingly, the order of the circuit court of Rock Island County is reversed as to the payment of expert witness fees and remanded for further proceedings consistent with our views herein. The order is affirmed as to all other issues presented.

Affirmed in part; reversed and remanded in part.

ALLOY and HEIPLE, JJ., concur.