author: PRESIDING JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD WILLIAM JOHNSON, Defendant-Appellant.
    Third District
    No. 81-412
    Opinion filed June 18,1982.
    Dennis A. DePorter, of Braud, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellant.

      Warren T. McNeill, State’s Attorney, of Monmouth (Gary F. Gnidovec and John X. Breslin, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

An information was filed in the circuit court of Warren County charging the defendant, Bernard William Johnson, with the unlawful delivery of a substance which he had represented to be a controlled substance, in violation of section 404 of the Controlled Substances Act. (Ill. Rev. Stat. 1979, ch. 56/2, par. 1404.) Following a jury trial, the defendant was found guilty and sentenced to a one-year term of probation. He presents two issues for review: whether the testimony of the prosecution’s principal witness was so incredible as to raise a reasonable doubt of his guilt, and whether the prosecution proved beyond a reasonable doubt that the defendant had represented the delivered substance to be a controlled substance. We affirm.

The prosecution’s principal witness was Jill Bottom, an undercover police agent attached to the Multi-County Enforcement Group (MEG). She gave the following testimony which served as the basis for the defendant’s conviction. Agent Bottom entered the North Forty Tavern in Alexis, Illinois, at approximately 4:30 p.m. on January 11, 1980. She played pool with some patrons while drinking soft drinks. At about 9 p.m., the defendant, who was then unknown to the agent, approached her at the bar and introduced himself as Bernie. They drank and talked. Their conversation eventually settled on the topic of drugs. The defendant mentioned that he and another person had recently gone to Cuba, Illinois, to purchase “a couple thousand hits of white cross.” Once there, however, the defendant learned that instead of white cross, the seller had “yellow pharmaceutical speed,” which he sold the defendant. The defendant boasted to the agent that the speed was “clean and very good,” claiming that only two hits were necessary to “get off.” Then, upon returning from the men’s room, the defendant handed Bottom two tablets of the alleged pharmaceutical speed. He advised her to try those tablets, and, if she needed more, he offered to sell her as much as she wanted. They continued to talk, and the agent left at about 10:30 p.m. The defendant was not arrested until September 1980, nine months after the alleged delivery.

At trial the agent testified that she interpreted the defendant’s reference to speed as meaning amphetamine, a controlled substance. She also interpreted the defendant’s reference to “yellow pharmaceutical speed” as meaning that the tablets which he had delivered to her were high quality, clean or pure amphetamines. He had vouched for its potency by claiming that only two tablets were necessary to “get off” or become affected by it. The prosecution stipulated that the two tablets were analyzed and contained no controlled substances. On cross-examination, Bottom admitted that after she had met the defendant she began to drink wine and consumed three glasses by the time she left. She also explained her statement at the preliminary hearing that she had first entered the tavern at 6 p.m. by saying that she had frequented the tavern so often that she had mistaken at the preliminary hearing the time of her arrival on January 11.

The defendant in his case in chief first introduced several character witnesses who vouched for his good character and reputation. He also introduced the testimony of several so-called occurrence witnesses. One witness testified positively that the defendant was not in the tavern on January 11, yet the witness admitted that she was not even present at the tavern on that date. Another witness said that the defendant was present that night but that the accused had not spoken to agent Bottom. The defendant then assumed the witness stand. He admitted that he talked with agent Bottom that night for no more than 10 minutes. According to the defendant, the agent introduced herself as a student from Macomb and offered to buy speed from him. He denied telling her that he had purchased thousands of tablets of yellow pharmaceutical speed from a seller in Cuba, Illinois. He also denied handing the agent any tablets. Finally, the defendant refuted Bottom’s testimony that on January 11 he wore a flannel shirt. The defendant’s wife and mother both corroborated that portion of his testimony.

The defendant first argues that agent Bottom’s testimony was so wrought with inconsistencies and was so well controverted by the defendant’s evidence that a reasonable doubt as to his guilt exists. We disagree and find her testimony positive and credible.

Within the trier of fact’s nearly exclusive province lie several responsibilities: the resolution of inconsistencies or discrepancies in witnesses’ testimony; the determination of bias or interest which diminishes a witness’ credibility; and the weighing of each witness’ testimony. When the trier of fact renders a decision based upon credible and substantial evidence which is sufficient to convict, the verdict may not be lightly set aside merely because the trier of fact chose to believe the testimony presented by the prosecution rather than that presented by the accused. Accordingly, a reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of evidence or credibility of the witnesses, and it will not reverse a finding of guilt unless the evidence is so improbable as to raise a reasonable doubt of guilt.

When the defendant’s objections are seen in the foregoing analysis, we must conclude that they are utterly devoid of merit and have no effect on Bottom’s credibility. The discrepancy in her testimony as to the time of her arrival at the tavern is completely insignificant and collateral to her testimony. She openly admitted this discrepancy and explained why she had been confused and how she had come to correct herself. Her apparent mistake that the defendant wore a flannel shirt on the night in question is equally harmless because there is no question that the defendant is the man with whom she spoke on January 11 and who gave her two tablets purportedly containing a controlled substance. The defendant also asserts that, because no one can remain in a tavern for very long withoút imbibing, the agent must have been lying when she testified that she did not drink until 9 p.m., 4*2 hours after she had entered. This argument is utterly fatuous. We find absolutely nothing unusual with her assertion that she had drunk only nonalcoholic beverages until she met the defendant. The defendant next contends that her testimony concerning his purported purchase of yellow pharmaceutical speed was fabricated because no follow-up investigation was made. Such an inference is clearly unreasonable and not supported by the evidence. Likewise, no such inference can be made from the nine-month delay between the transaction and his arrest. Finally, the defendant argues that he offered testimony sufficient to cast doubt on the agent’s testimony that she and the defendant had talked for 1*2 hours. We strongly disagree. Three witnesses testified for the defendant as to the events that occurred that night: the first witness said the defendant was not even at the tavern that night, yet this is hardly convincing since she also was not present that night; the second witness refuted the first and said the defendant was present but that he did not speak at all to the agent; the final witness, the defendant, contradicted both of the preceding witnesses and testified that he was present and that he had spoken to the agent, but that they had only talked for 10 minutes. Such unsupported, self-interested testimony is plainly insufficient to raise a reasonable doubt concerning the defendant’s guilt. The agent’s testimony was positive and credible. She testified clearly as to the complete sequence of events. The jury heard the testimony, observed the witnesses’ demeanor, and decided to believe the prosecution’s evidence. Nothing has been presented which mandates us to disturb the jury’s verdict.

The defendant’s second allegation of error is that the State failed to prove beyond a reasonable doubt that he had represented the substance delivered to agent Bottom as a controlled substance. He apparently argues that in order to convict an accused of violating section 404, the prosecution must prove that the accused delivered the substance and said, “Here is a controlled substance.” This court recently rejected this argument in People v. O’Connol (1981), 98 Ill. App. 3d 625, 424 N.E.2d 930. There we said, “[A]n express denomination of the controlled substance by the defendant need not be established. The evidence is sufficient if the trier of fact can reasonably find a common understanding between the defendant and the undercover officer that the substance being sold was a controlled substance.” (People v. O’Connol (1981), 98 Ill. App. 3d 625, 629,424 N.E.2d 930,933.) This interpretation of section 404 was obviously necessary to prevent frustration of the legislature’s intent by criminals’ resort to circumlocution. As O’Connol and People v. Sanderson (1977), 48 Ill. App. 3d 472, 363 N.E.2d 180, demonstrate, this “common understanding” may be established by using the argot of the underworld drug seller. As was the case in O’Connol and Sanderson, the prosecution here offered undisputed evidence that the term speed represents amphetamines, a controlled substance, in the defendant’s parlance. He then made his meaning absolutely clear when he vouched for the .controlled substance’s potency, claiming only two “hits,” a term which means tablet or dose, were required to “get off.” Finally, the agent testified that “pharmaceutical speed” meant amphetamines which originated from a commercial manufacturer and which represented a purer form of controlled substance than that usually found. From this testimony, it cannot be denied that the prosecution sustained its burden of proving beyond a reasonable doubt that the defendant had represented the substances, which he delivered to the undercover agent, as controlled substances.

The determination of the foregoing issues was made and the defendant’s conviction affirmed in an order issued pursuant to Supreme Court Rule 23 dated February 26,1982.

The defendant thereafter petitioned for a rehearing which this court granted. In the rehearing petition the defendant argued that his conviction should be reversed on the basis of the supreme court opinion in People v. Wagner (1982), 89 Ill. 2d 308,433 N.E.2d 267, which declared that section 404 of the Controlled Substances Act was unconstitutional (Ill. Rev. Stat. 1979, ch. 56%, par. 1404). As previously stated, it was this statutory provision that the defendant was found guilty of having violated. The issue now to be considered by virtue of having been raised in the petition for rehearing is whether Wagner dictates a reversal of the defendant’s conviction. For reasons hereinafter set forth we find that it does not so dictate, and affirm the defendant’s conviction.

Before proceeding to the merits, we must first address the State’s contention that the defendant has waived consideration of the issue of the constitutionality of section 404 by failing to raise it in any previous proceeding. Admittedly the defendant did not challenge the constitutionality of the section in the circuit court at any time or on appeal before the motion for rehearing. Nevertheless, we choose not to invoke the waiver rule in the present situation. The rule is one of administration designed to provide the circuit court with the opportunity to correct contemporaneously errors or defects made at trial. (People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.) In the present case no error existed for the circuit court to correct, because at the time of the trial and on the defendant’s appeal, the Wagner decision had not yet been issued; thus, the statute was presumptively constitutional. (See also People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267.) Given these circumstances, we decline to dismiss the issue merely because the defendant failed to make what was then a futile gesture in the circuit court.

In Wagner the supreme court addressed the sentencing disparities between sections 401 and 404 of the Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56/2, pars. 1401 and 1404), as they existed on August 3,1978, the date on which the defendant violated section 404 by delivering a substance represented to be a controlled substance. At that time, a person convicted under section 401 for manufacturing or delivering controlled substances enumerated under schedule IV or V was guilty of only a Class 4 felony with the possible fine not to exceed $10,000 and $5,000 respectively. (Ill. Rev. Stat. 1977, ch. 56M, par. 1401(e), (f). The Wagner court conceded that fraudulent deliveries of noncontrolled substances are a proper subject for punishment because such punishment tended to discourage indirectly illicit transactions involving controlled substances (see People v. Calcaterra (1965), 33 Ill. 2d 541, 213 N.E.2d 270), but declared that the obvious yet unarticulated purpose of the Illinois Controlled Substances Act is to deter commerce in controlled substances by punishing more severely those traffickers and profiteers who deal in the noisome substances listed in schedules I through V (Ill. Rev. Stat. 1977, ch. 56M, par. 1201 to 1215). The anomalous result of this scheme was that the less serious conduct proscribed under section 404 carried a harsher penalty than the more harmful conduct outlawed in section 401(e) and (f). Relying on People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029, the court found this scheme to violate the Illinois Constitution’s due process clause (Ill. Const. 1970, art. I, sec. 2) because imposing harsher punishment on one who delivers a noncontrolled substance than on one who delivers a controlled substance was not reasonably related to the purposes and objectives of the Controlled Substances Act. In Bradley the court found section 402(b) of the Act to be unconstitutional because that section punished the possession of controlled substances more severely than delivering or manufacturing schedule IV or V controlled substances. This disparity was unreasonable given the legislature’s expressed intention to punish persons who manufactured or delivered controlled substances more severely than persons guilty of possession. Ill. Rev. Stat. 1977, ch. 56*2, par. 1100.

As the supreme court briefly noted in Bradley and Wagner, the Act’s sentencing scheme has since been modified by Public Act 81-583. On January 11,1980, when the defendant delivered a substance represented to be a controlled substance, this amended scheme was in effect. Now section 401 (e) and (f) violations are classified as Class 3 felonies, but the potential fines remain $10,000 for the manufacture or delivery of schedule IV controlled substances and $5,000 for the manufacture or delivery of schedule V controlled substances. (Ill. Rev. Stat. 1979, ch. 56/2, par. 1401 (e), (f).) Section 404 remains unchanged: a person convicted of delivering a substance represented to be a controlled substance is guilty of a Class 3 felony subject to a possible fine not to exceed $15,000. (Ill. Rev. Stat. 1979, ch. 5612, par. 1404.) The defendant asks this court to apply the holding of Wagner to this amended scheme, arguing that Wagner mandates that section 404 violations be less harsh than section 401(e) or (f) violations and that, even if this favorable disparity is not constitutionally mandated, the unconstitutional disparity condemned in Wagner remains because a section 404 violator faces a potentially greater fine.

We find that the amended sentencing classifications satisfy the requirements of due process set forth in Wagner and Bradley. This guaranty of due process of law is subject to the exercise of the police power in the interest of the public welfare, but it is subordinated only to the extent that the exercise of the police power bears a substantial relation to the promotion of public health, safety, morals, or general welfare. When the legislature exercises that power to create or define what constitutes a criminal offense and what punishment shall apply to that crime, its classification must not be purely arbitrary or capricious in relation to the harms sought to be curtailed. These above mentioned rules form two corollaries of constitutional law: first, the due process clause does not require meticulous exactitude in making legislative classifications for otherwise the judiciary would completely subjugate the legislature’s role; and second, the judiciary must recognize that the legislature sits in a position superior to that of a court to make such classifications and must defer to the legislature’s judgments accordingly, within, of course, the limits of the prohibition against arbitrary and capricious lawmaking. For this reason, legislative enactments are generally considered presumptively constitutional.

Here, after carefully reviewing Wagner, we conclude that it does not mandate a disparity of sentencing classification in favor of section 404 violators. First, although we agree with Wagner that the legislature need not have expressly recognized the differences between controlled and noncontrolled substances to find that the legislature intended not to punish offenses involving noncontrolled substances more severely than certain controlled substances, we think it unwise to equate all noncontrolled substances as harmless. As Chief Justice Ryan indicated in his dissent in Wagner, the proliferation of “look-alike” drugs — those noncontrolled substances having the same physical appearances as, if not the same pharmacological effects of, dangerous controlled substances — poses a substantial danger and has received considerable attention in the General Assembly. Moreover, the legislature has not classified all section 401 offenses similarly to section 404 offenses. Only section 401(e) and (f) offenses, those involving the manufacture or delivery of relatively less dangerous schedule IV or V controlled substances are made Class 3 felonies. Finally, by increasing the punishment for section 401 (e) and (f) offenses to Class 3 felonies, while not disturbing the section 404 classification, the General Assembly in Public Act 81-583 has expressed its finding that the delivery of “look-alike” drugs is as harmful as the manufacture or delivery of schedule IV or V controlled substances. For these reasons, we cannot say that the amended sentencing scheme conflicts with the purposes and objectives of the Controlled Substances Act to such a degree as to constitute an arbitrary or capricious classification.

Moreover, the disparity between the potential fines for section 404 offenses and section 401 (e) or (f) offenses does not rise to constitutional dimensions. In dictum, the Bradley court noted with approval the amended scheme as it affected sections 402(b) and 401 (e) and (f). Yet, there, a section 402 offense, the lesser harm, carried the possibility of a heavier fine than the more serious offense proscribed in section 401 (e) or (f). (Ill. Rev. Stat. 1979, ch. 56%, pars. 1401(e), (f), 1402(b).) We cannot say that this disparity alone is sufficient to facially declare the amended section 404 unconstitutional. There may well be some situations where a fine imposed for the delivery of “look-alike” drugs may properly exceed that imposed for the delivery or manufacture of schedule IV or V controlled substances.

Accordingly, we affirm the judgment of conviction entered in the circuit court of Warren County.

Affirmed.

ALLOY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HAROLD McGHEE, Defendant-Appellee.
    Third District
    No. 81-633
    Opinion filed May 17,1982.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    William M. Anderson, IV, of Peoria, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The instant appeal involves a search of Harold McGhee’s automobile after he was issued a citation for a traffic violation. The trial judge determined that the arresting officer had no probable cause to search the car and granted McGhee’s motion to suppress evidence found in the unlawful search. The State appeals.

The only witness to testify at the hearing on the motion to suppress was arresting officer, Jeff Adams. Officer Adams testified that on June 28, 1981, he observed an automobile driven by Harold McGhee disobey a red traffic light. After following the vehicle for some distance, he stopped the vehicle. McGhee exited his car and while a fellow police officer issued McGhee a traffic citation, Officer Adams walked over and looked inside McGhee’s auto. Officer Adams observed a drinking glass, approximately three inches tall, with a Bz-inch diameter. Officer Adams testified that the glass was lying on its side on the floor in front of the driver’s seat. He testified that he recognized it as the type of glass frequently used in drinking establishments. On the basis of such observation, he commenced his investigation of the glass. He entered the car, picked up the glass and smelled the remaining residue or liquid in the glass. He testified that it smelled like an alcoholic beverage. He continued his search of the car finding a handgun in a closed, glove-compartment-type console between the driver’s seat and the passenger’s seat. No alcohol was found in the car.

McGhee was charged by complaint with the unlawful use of weapons. The trial court granted McGhee’s motion to suppress the weapon found in the glove compartment. The trial court held that the mere observation of the drinking glass in McGhee’s car did not constitute probable cause that an offense had been committed and that the fruits of that crime would be found within the car. The trial court found that the glass, lying on its side, was empty with some residual liquid. Furthermore, the trial court noted that the police officer smelled no odor of alcohol on McGhee or emanating from the vehicle. Thus, the trial court held there was no probable cause to support a warrantless search.

In order to establish a probable cause, there must be facts present to warrant a man of reasonable caution to believe that the law was being violated and that evidence of it was in the vehicle to be searched. (People v. Francisco (1970), 44 Ill. 2d 373.) Here, the officer testified that the grounds for his search were his observance of a glass lying sideways on the car floor and his belief that the glass was the type used in drinking establishments. Under the plain-view doctrine, it is necessary to establish that the incriminating nature of the evidence in plain view was immediately apparent to the arresting officers. See Coolidge v. New Hampshire (1971), 403 U.S. 443, 467, 29 L. Ed. 2d 564, 583-84, 91 S. Ct. 2022,2038-39; see also People v. Riggs (1978), 62 Ill. App. 3d 338, 339.

We agree with the trial court that mere observation of an empty drinking glass in an automobile does not constitute probable cause to enter the car for a warrantless search thereof. We limit our holding to the facts of this case wherein there is no evidence that McGhee was drinking. A red light traffic violation alone is not enough for a reasonably prudent man to suspect inebriation. The record is void of any reference to erratic conduct, driving or otherwise, by McGhee. When McGhee received his traffic citation, McGhee himself exited his vehicle and walked over to the police car. In our search of the record we find no suggestion that McGhee was unsteady, talked strangely, or smelled of alcohol. Thus, the observation of an empty glass in an automobile is not sufficient to constitute probable cause to conduct a search of the car or the glass in the car. Unlike certain drug paraphernalia, glasses by design are not restricted to a single use function. Thus, the presence of an empty glass' used in taverns to serve alcohol means absolutely nothing without other circumstances or conduct to suggest consumption of alcohol.

Thus, the officer conducted an improper search when he entered McGhee’s automobile without permission or a warrant, seized the glass, and smelled the residue in its bottom. As such, the subsequent search of the automobile and confiscation of a handgun found in the console glove compartment was improper since the search was initiated without probable cause.

Accordingly, we affirm the order of the circuit court of Peoria County which granted Harold McGhee’s motion to suppress the gun found in his auto.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE ALLOY JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY BONHAM, Defendant-Appellant.
    Third District
    No. 81-291
    Opinion filed May 20, 1982.

      STOUDER, J., specially concurring.
    Roy A. Sabuco, of Rudman & Sabuco, of Joliet, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The trial court found the defendant, Danny Bonham, guilty of unlawful delivery of a controlled substance (cocaine) after a “stipulated bench trial” and sentenced him to six years in prison. The defendant now appeals, alleging he received ineffective assistance of counsel and that he did not receive admonitions required by Supreme Court Rule 402 (73 Ill. 2d R. 402) in regard to guilty pleas.

In April 1981 the court called this case for trial. The court admonished the defendant that he had a right to a jury trial and determined that the defendant was knowingly waiving that right. The prosecutor then outlined his case for the trial court. The prosecutor told that court that Agent Kaupas, of the Metropolitan Area Narcotics Squad, if called to testify, would swear that he initiated contact with the defendant on January 12,1980, to purchase cocaine from the defendant. That evening, narcotics agents met the defendant at his home in Wilmington and continued on to a tavern in Manteno. The agent would also testify that he gave the defendant $275 with which to purchase cocaine. After arriving at the bar, the defendant went inside for about 10 minutes, returned to the car and gave Kaupas a substance as they were driving back to Wilmington. This substance was later tested and determined to be cocaine.

The defense counsel stipulated the testimony of the narcotics agents and the venue in Will County. The defense did not prodüce or offer any evidence or testimony, and neither side made any oral argument. The court found the defendant guilty and, two weeks later, sentenced him to six years in prison pursuant to a sentencing agreement. Prior to the stipulated bench trial, defense counsel moved to dismiss the charge on the grounds that cocaine was impermissibly classified as a narcotic. The defense relied upon People v. McCarty (1981), 93 Ill. App. 3d 898, 418 N.E.2d 26, reversed (1981), 86 Ill. 2d 247, 427 N.E.2d 147. The defense renewed his motion to dismiss the charge on the day of sentencing. At that time, the supreme court had not yet reversed the Fourth District’s decision in McCarty.

The record indicates that the defense counsel and the State utilized a stipulated bench trial as part of a plea bargain. The State voluntarily declined to prosecute a second charge of armed violence against the defendant. The parties utilized a stipulated bench trial to preserve the McCarty issue for appeal, in the event the supreme court affirmed that decision. The record also reveals the defense originally proposed a four-year term, the State wanted an eight-year term and both sides compromised on a six-year term of imprisonment.

The first issue is whether the defendant receive ineffective assistance of counsel at trial. The defendant claims his trial counsel abandoned all efforts at a defense. He claims his trial counsel’s participation in a stipulated bench trial merely to preserve the McCarty issue effectively pleaded him guilty to the offense. The defendant also criticizes his trial counsel’s failure to raise an entrapment defense, failure to contest venue and a negotiation of a prison term that is twice the minimum sentence for a Class 2 felony.

Incompetency of counsel will not be a basis for reversal of a criminal conviction “unless the representation is of such low caliber as to amount to no representation at all or reduces the court proceedings to a farce or a sham.” (People v. Torres (1973), 54 Ill. 2d 384, 391, 297 N.E.2d 142.) Although the prosecutor’s recitation of the facts does not indicate exactly where the unlawful delivery took place, the stipulation of venue in Will County is not unreasonable or indicative of incompetence. Indeed, the defendant in this appeal does not challenge Will County as an incorrect venue: He only suggests venue is unclear from the record. Similarly, trial counsel’s determination not to raise an entrapment defense was reasonable, in light of the strong evidence of the defendant’s predisposition. Furthermore, the record amply supports the negotiations and eventual compromise upon a six-year term of imprisonment. We find, therefore, no significant deficiency in trial counsel’s representation of the defendant.

The second issue is whether the stipulated bench trial was tantamount to a plea of guilty, requiring the trial court to admonish and caution the defendant pursuant to Supreme Court Rule 402. If the stipulated bench trial was tantamount to a guilty plea, the trial court may have committed reversible error when it failed to deliver the warnings required by Rule 402. People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760.

This court recently ruled that not all stipulated bench trials are tantamount to pleas of guilty. “[I]f there is a genuine defense or a purported defense either actually established or included in the stipulation, then the proceeding is not equivalent to a plea of guilty. If no defense is revealed either actually or by stipulation, then there is nothing for the court to decide and the procedure is tantamount to a plea of guilty.” (People v. Sullivan (1979), 72 Ill. App. 3d 533, 536-37, 391 N.E.2d 241.) Sullivan approved of the reasoning and results of three other cases that considered stipulated bench trials: People v. Russ (1975), 31 Ill. App. 3d 385, 334 N.E.2d 108, People v. Ford (1976), 44 Ill. App. 3d 94, 357 N.E.2d 865, and People v. Fair (1975), 29 Ill. App. 3d 939, 332 N.E.2d 51.

In practice, appellate courts have not attached any significance to the type of defense presented or stipulated at the bench trial. In Sullivan, for example, the defendant’s case was contingent upon the suppression of evidence seized during an allegedly illegal search. After a motion to suppress was denied, the State recited the testimony of its witnesses and the defendant declined to present any evidence. This court ruled the trial was not tantamount to a guilty plea because the illegality of the search was a defense presented to the trial court. Therefore, the trial court did not have to give the defendant Rule 402 admonitions. Similarly, in Ford, the defendant sought to preserve the issue of the legality of his confessions. The Fourth District of this court ruled that the stipulated bench trial was not tantamount to a guilty plea if the parties presented a legal or factual defense.

In the case at bar, the defendant stipulated the testimony of the State’s witnesses. This testimony was sufficient to establish guilt. However, the defendant also presented the court with a legal defense: The supposedly unconstitutional classification of cocaine as a narcotic. Under Sullivan, therefore, this trial was not tantamount to a plea of guilty and the trial court did not commit reversible error when it failed to admonish the defendant pursuant to Rule 402. Additionally, we note that the defendant received Rule 402 admonitions shortly before the stipulated bench trial in another court where he was being processed under other charges.

The resolution of this appeal should not be interpreted as an endorsement of the stipulated bench trial. This procedure has been severely criticized by several courts. (See, e.g., People v. Smith (1974), 59 Ill. 2d 236,319 N.E.2d 760; People v. Ries (1975), 28 Ill. App. 3d 698, 329 N.E.2d 243; People v. Sanders (1977), 55 Ill. App. 3d 178, 370 N.E.2d 1213.) In spite of this strong disapproval, defense counsel and the State have persisted in utilizing this procedure. This court suggested once before that trial courts admonish defendants before engaging in stipulated bench trials. (People v. Sullivan (1979), 72 Ill. App. 3d 533, 538.) Admonishing the defendant would eliminate the confusion and misunderstanding that this procedure creates. Ideally, the record should reflect the defendant’s understanding of the procedures about to be employed against him and that his appeal of any resulting conviction will be limited to the issues he is preserving. (See, e.g., People v. Fair (1975), 29 Ill. App. 3d 939, 332 N.E.2d 51 (defendant informed of the mechanics of a stipulated bench trial and of his right to confront the witnesses against him).) Such warnings take little effort to deliver and provide great benefit to the parties and the judiciary in any post-conviction proceeding or appeal.

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

Affirmed.

SCOTT, J., concurs.

JUSTICE STOUDER,

specially concurring:

I concur in the result reached by my colleagues, but my concurrence is based on the special factual circumstances surrounding this case.

In my opinion, if this case were considered only on its own facts, then I can hardly imagine any case involving a stipulation of facts by the defendant which more closely approaches a guilty plea than the facts of this case. Where the stipulation of facts admits the existence of each and every fact necessary to prove each and every element of a criminal offense there is no useful purpose served in regarding such stipulation as anything other than the legal equivalent of a guilty plea, and the admonitions required in guilty plea cases should be given. In many of the cases cited in the majority opinion we have cautioned, admonished and advised that trial courts accept the substance of the proceeding and act accordingly. From the number of appeals, this advice has been little heeded. Were it not for the exceptional circumstances surrounding this case I think reversal would be required.

The exceptional circumstances which I refer to are of course the other criminal case in which the defendant did plead guilty and so far as the record in this case is concerned did receive proper admonishments concerning his legal and constitutional rights. The plea of guilty in the former case, like the stipulation of facts in the instant case, as well as the dismissal of other charges, were all part of a negotiated settlement and under such circumstances I find there is insufficient reason to overturn the judgment of the trial court in this case.


author: PRESIDING JUSTICE GREEN JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY LEE TATE, Defendant-Appellant.
    Fourth District
    No. 17174
    Opinion filed May 27, 1982.
    Supplemental opinion filed on denial of rehearing June 25,1982.

      Daniel D. Yuhas and Gary S. Rapaport, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On December 3, 1980, defendant, Rickey Lee Tate, was charged in the circuit court of Vermilion County by a four-count amended information alleging he had committed the offenses of attempted rape, home invasion of the premises occupied by Janice M. Blaylock, home invasion of premises occupied by Irshell Rife, and aggravated battery. After a jury trial ending December 10, 1980, he was convicted of the latter two charges and sentenced to concurrent terms of 20 and 5 years’ imprisonment, respectively. He was acquitted of the attempted rape charge, and the jury was unable to agree as to the charge of home invasion of the Blaylock premises.

On appeal defendant asserts: (1) The trial court abused its discretion in denying his motion to sever the charges upon which he was convicted from the other charges; (2) the court erred in entering judgment on the aggravated battery charge because any such battery and any home invasion of the Rife premises were “carved” from the same act; and (3) the sentences were excessive.

Section 111 — 4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 4(a)) provides that two or more offenses may be charged in the same indictment, information, or complaint if based on acts which “are part of the same comprehensive transaction.” Section 114 — 8 of that Code (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 8) sets forth that if a defendant is prejudiced by such a joinder “the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require.” In People v. Bricker (1974), 23 Ill. App. 3d 394, 319 N.E.2d 255, denial of a defendant’s motion to sever was held to be reversible error. The defendant had been required to defend, in a single trial, charges of having committed two robberies at times three hours apart and at places several miles from each other. The appellate court concluded the robberies each constituted separate transactions. The opinion did not state whether similarities existed as to the manner in which the robberies were carried out. On the other hand, in People v. Mikel (1979), 73 Ill. App. 3d 21, 391 N.E.2d 550, charges against the same defendant of two assaults and a murder were held to have been properly tried together despite a defense motion for severance. The first aggravated assault and the murder were shown to have occurred within minutes and just two blocks apart. The time and distance between the murder and the other assault was several more minutes and a few miles. The actions were shown to be part of a shooting spree in which the offender was motivated by racial hatred to harass persons of another race.

The offenses for which the defendant here was convicted occurred at the Rife residence in the 2500 block on East Main Street in Danville, in the early morning hours of August 16,1980. Lettie Rife testified that after she aijd her husband had gone to bed and fallen asleep, she felt somebody’s hand on her shoulder and a sharp object against her neck. She stated the man she saw before her told her to be quiet and moved his hand across her chest whereupon she heard a zipper being unzipped. She said she pushed the man away and switched on a light. She testified that her husband then arose and was stabbed by the assailant who then fled. The evidence showed that other persons were present in the residence at the time and were playing cards. The other two offenses were shown to have occurred about one hour earlier in a residence in the 200 block of North Bowman in Danville, but one mile from the Rife residence. The victim there testified to having been grabbed by an assailant at the bottom of stairs to her apartment. She testified she grappled with him until he hit her in the face, kicked her, and made her be quiet. She said the man possessed a knife and tore her slacks in the front. She described how the assailant fled when her young nephew appeared at the top of the stairs and screamed.

When offenses are part of the same transaction, evidence that a defendant committed one of the offenses is probative as to his commission of the other. When the offenses are not so related, probative value may not be present and there is danger that the jury may consider the evidence of the defendant’s commission of one of the offenses as showing a propensity to have committed other offenses. In Mikel we stated:

“The law is clear that the decision on whether or not to sever is a matter within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. (People v. Sockwell (1977), 55 Ill. App. 3d 174, 371 N.E.2d 100.) Important factors to be considered in determining this question include the proximity of time and location of the various charges and the identity of evidence which would be presented to prove each charge.” 73 Ill. App. 3d 21, 27, 391 N.E.2d 550, 555.

In the case on appeal, the two sets of offenses were closer in time and at places closer in distance than in Bricker but more remote in time than the offense in Mikel and more distant in place than the first two offenses in the latter case. Nevertheless, we consider the situation here to have analogy to Mikel. Witnesses at both the East Main Street and Bowman Street residences described the assailant as having worn a sleeveless red shirt and white trousers. In each case the assailant used a knife, attacked a female, ordered her to be quiet, and made sexual advances to her by attempting to remove her clothes. In each case the assailant had gained entrance by cutting through a door or window and, in each case, he fled when he met resistance.

As defendant relied upon the defense of alibi, the similarities between the attire and method of operation of assailants at the two residences had probative value in negating that defense. As the series of offenses in Mikel was termed a spree of hate, those here gave evidence of being a spree of lust. At both residences the assailant attempted to undress the female victim. The circumstances under which he did this obviously afforded so little chance of success for him as to indicate an uncontrollable lust. The court had a preview of the trial evidence at the hearing on the motion to sever. It did not abuse its discretion in denying the motion.

The question of the propriety of defendant being convicted of both aggravated battery and home invasion turns upon application of the rule set forth in People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844, where the supreme court stated:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses.”

Where, as here, two offenses, by definition, in the manner charged, and by the proof, each contain elements not present in the other, neither offense can be an included offense of the other. (See Ill. Rev. Stat. 1979, ch. 38, par. 2 — 9(a); People v. Zegart (1980), 83 Ill. 2d 440, 415 N.E.2d 341.) The aggravated battery involved here contained the element of the infliction of “great bodily harm” (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4) while the home invasion required only the infliction of “injury” (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11(a)). Entry of a home was an element of the home invasion while no such entry was a required element of the aggravated battery. Clearly, neither offense was an included offense of the other.

Whether both offenses were “carved” from the same act presents a somewhat more complicated question. The aggravated battery arose from the knifing of Irshell Rife, husband of Léttie Rife. Under the allegations of the information and the evidence, the wound he received thereby was the bodily harm received in the aggravated battery and the injury received in the home invasion. The evidence indicated the knifing was a single act. However, the entry by the assailant in the Rife home was a separate act which was an important and required part only of the home invasion offense. In contending that, nevertheless, both offenses were carved from the same act, defendant cites People v. Myers (1981), 85 Ill. 2d 281, 422 N.E.2d 620 (rehearing denied October 1981), and People v. Bone (1982), 103 Ill. App. 3d 1066, 432 N.E.2d 329.

In Myers, the court held that at least two cuts at the throat of a victim, interrupted by assaults on another person, were separate acts supporting convictions of both attempted murder and armed violence. In Bone, a defendant had shot and killed a victim at the start of a robbery of persons in a service station. He was convicted of (1) murder by committing acts which the actor knew to create a strong probability of death or great bodily harm; (2) felony murder; and (3) armed robbery (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a)(2), 9 — 1(a)(3), 18 — 2). The appellate court stated the felony murder conviction had to be set aside because it arose from the same act as the other murder, the killing of the victim. However, the court then went on to explain the rationale of its ruling upon the basis that the felony murder was an included offense of the section 9 — 1(a)(2) murder. The court concluded that both offenses contained the same elements except that the felony murder involved a lesser mental state. The court made no mention of the fact that the felony murder involved the additional element and the additional act necessary for a robbery, the taking of property of value.

Whatever the rationale, we conclude that the court properly held that a person cannot be guilty of both a section 9 — 1(a)(2) murder and felony murder of the same individual when that individual is killed by the firing of a gun by the accused in performance of a robbery. We do not take the opinion to hold that a person cannot be guilty of two offenses when a common act is part of both offenses or part of one offense and the only act of the other. No such case has been called to our attention.

We hold that here, neither offense was an included offense of the other, and the offenses were not “carved” from the same act. Under King, both convictions can stand.

The information before the court at sentencing indicated defendant was then between 17 and 19 years of age. Despite his youth, his record of having committed several burglaries as a juvenile supported the severity of the sentences. They did not result from an abuse of discretion by the trial court. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

For the reasons stated, the judgments of conviction and sentence are affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE GREEN

delivered the opinion of the court:

In defendant’s petition for rehearing, he correctly points out that the aggravated battery for which defendant was convicted involved the element of the use of a deadly weapon (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)) rather than the element of causing great bodily harm (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a)). Nevertheless, the aggravated battery and the home invasion offenses of which defendant was convicted each required elements not a required part of the other offense, and neither offense was an included offense of the other.

People v. Hood (1974), 59 Ill. 2d 315, 319 N.E.2d 802, People v. Hunt (1976), 38 Ill. App. 3d 366, 347 N.E.2d 884, and People v. Weaver (1968), 93 Ill. App. 2d 311, 236 N.E.2d 362, cited in defendant’s petition for rehearing in support of his argument that both offenses for which he was convicted arose from the same act, are all pre-People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838. They were all decided upon the theory, discarded by King, that two convictions could not arise from the same course of conduct without independent motivation.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARK J. CARLTON, Defendant-Appellee.
    Second District
    No. 81-591
    Opinion filed June 2, 1982.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Rarbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State seeks to appeal from a pretrial order of the trial court suppressing evidence. The record on appeal and the State’s brief have been filed in this court, but defendant has not responded with a brief. Although this is an appeal by the State the record does not show compliance by the trial court with Supreme Court Rule 607(a) (73 Ill. 2d R. 607(a)). Nor has the State certified that the suppression order substantially impairs its ability to prosecute the case. In these circumstances, it must first be determined whether this court may properly consider the merits of the appeal.

Defendant was charged by information with theft of certain cases of whiskey valued in excess of $150, and the public defender was initially appointed, at his request, to represent him. Thereafter, private counsel, William J. McGrath, entered his appearance on behalf of defendant and the public defender withdrew. Defendant’s retained counsel filed a motion to suppress as evidence three cases of Chivas Regal whiskey seized by police officers from the trunk of an automobile in which defendant was a passenger, allegedly in violation of the constitutions of the State of Illinois and the United States. After an evidentiary hearing the trial court entered an order of suppression on July 2, 1981. The record further discloses that thereafter on July 17, the State filed its response to defendant’s motion for discovery, and on July 20 the case was continued to August 3 for motions and setting.

On July 30 the State filed its notice of appeal from the order suppressing evidence and served a copy thereof on defendant’s counsel of record. As noted, the record on appeal and the State’s brief have been filed in this court; however, no appearance of attorney or brief has been filed here on behalf of defendant.

Supreme Court Rule 607(a) provides, inter alia:

“• * * in cases in which the State appeals, the trial court shall determine whether the defendant is represented by counsel on appeal. If not so represented, and the court determines that the defendant is indigent and desires counsel on appeal, the court shall appoint counsel on appeal.” 73 Ill. 2d R. 607(a).

The record does not disclose that Supreme Court Rule 607(a) has been complied with by the trial court. It is apparent defendant was represented by retained counsel for the purposes of the hearing of the motion to suppress; whether he has chosen not to file a responsive brief in this court or whether he is now indigent and is unable to employ counsel on appeal can only be determined in the trial court by compliance with the rule. It would be fruitless for this court to consider the merits of the ex parte appeal sought by the State if, in fact, defendant was indigent and desired counsel on appeal.

We conclude this matter must be remanded with directions that the requirements of Rule 607(a) be met by the trial court.

In People v. Young (1980), 82 Ill. 2d 234, 247, the court determined that Supreme Court Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case. (See also People v. Phipps (1980), 83 Ill. 2d 87, 90; People v. Flatt (1980), 82 Ill. 2d 250.) It has been held that the certification requirement is not limited to orders not previously deemed appealable. (People v. Jones (1981), 102 Ill. App. 3d 238, 241; People v. Norris (1981), 101 Ill. App. 3d 664, 667, appeal denied (1982),_Ill. 2d_; People v. Tomasello (1981), 98 Ill. App. 3d 588, 597.) Thus, the State must certify its prosecution will be impaired whenever it seeks to appeal an order suppressing evidence.

While Young directs the State to file a certificate in the trial court, that has been held not to be jurisdictional and if omitted from the record may be subsequently supplied. (See People v. Jones (1981), 102 Ill. App. 3d 238, 242; People v. Norris (1981), 101 Ill. App. 3d 664.) In People v. Lentini (1982), 106 Ill. App. 3d 695, this court considered that an oral representation to the trial court that the prosecution would be substantially impaired by a suppression order did substantially comply with the certification requirement.

In the present case, however, the State has at no stage suggested the prosecution would be impaired by suppression of the cases of whiskey. While it would appear to have that affect, we may not supply that conclusion for the State. Absent a certificate of impairment the State may not seek review of an order suppressing evidence.

As this case must be remanded for compliance with Supreme Court Rule 607(a) we will not now dismiss the appeal; the certificate of impairment must be supplied, however, should subsequent review be sought by the State.

Accordingly, this cause is remanded to the trial court with directions that it comply with Supreme Court Rule 607(a). If defendant is not represented by counsel on appeal and is indigent and desires counsel, the same shall be appointed. In that event, defendant will be allowed 45 days in which to file a responsive brief in this court.

Remanded with directions.

UNVERZAGT and VAN DEUSEN, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DIANA ZEIGLER et al., Defendants-Appellees.
    Second District
    No. 81-740
    Opinion filed June 2,1982.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    Locke, Tellefsen & Learn, of Glen Ellyn, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The five defendants in this consolidated appeal were each charged by separate complaints filed in the circuit court of Du Page County. Defendant Wolski was charged with keeping a gambling place (Ill. Rev. Stat. 1979, ch. 38, par. 28 — 3), and the other four defendants were each charged with the offense of gambling (Ill. Rev. Stat. 1979, ch. 38, par. 28 — 1(a)(1)). All are Class A misdemeanors. Defendants’ motions to quash arrest and suppress evidence in each of the cases were consolidated for hearing, and, on August 24,1981, were granted by the trial court. On that same date, the trial court, on motion of the State, entered an order of nol pros in each case.

On September 23, 1981, the State filed in each of the cases its notice of appeal of the trial court’s interlocutory order of August 24,1981, quashing the arrests and suppressing the evidence. Defendant Wolski has now moved to dismiss the appeal. After consideration of defendant’s motion and of the objections of the State thereto, we grant the motion to dismiss.

A review of the record in these cases discloses that on September 16, 1981, the State moved to vacate the orders of nol pros and to reconsider the defendants’ motion to quash the arrests and suppress the evidence. While a nol pros can be vacated allowing the original prosecution to proceed (People v. Watson (1946), 394 Ill. 177,182, cert, denied (1946), 329 U.S. 769, 91 L. Ed. 662,67 S. Ct. 130), the trial court in this case denied the State’s motion to vacate the orders of nol pros on September 16. Though a trial court’s refusal to reinstate charges after a dismissal of the original complaint on the State’s motion can be appealed (see People v. Newell (1980), 83 Ill. App. 3d 133, 136), the State did not appeal either the order that nol prossed each of the cases or the order denying the motion to vacate the orders of nol pros. The orders disposed of all matters then pending before the court. Having failed to appeal from these final orders, the State cannot now appeal from an order entered during the pendency of that matter.

The State contends that it can appeal the interlocutory orders of August 24, 1981, because at the time it filed its notice of appeal those charges had been reinstated by informations filed in each case on September 17, 1981. We do not question that the State could file an indictment or information after a nol pros of the original complaint, but such action would represent the commencement of a new and distinct criminal proceeding. (People v. Eisele (1979), 77 Ill. App. 3d 766, 769.) It would in no way revive the prior proceeding.

In the case at bar, the State failed to appeal'from the final order entered by the trial court that nol prossed the complaints or the order denying the motion to vacate. The State cannot appeal, as it attempts to do here, from a non-final order entered during the pendency of that matter. Therefore, the consolidated appeals of case No. 80 CM 6172 People v. Zeigler, case No. 80 CM 6173 People v. Hansen, case No. 80 CM 6174 People v. Wolski, case No. 80 CM 6175 People v. Brooks and case No. 80 CM 6176 People v. Dvorak, all in the circuit court of the Eighteenth Judicial Circuit, are dismissed.

Appeal dismissed.

NASH and UNVERZAGT, JJ., concur.


author: JUSTICE BARRY

text:
      In re APPLICATION OF PEORIA COUNTY TREASURER AND COLLECTOR.—(PEORIA COUNTY TREASURER AND COLLECTOR, Appellant, v. THE RADNOR GRANGE, Appellee.)
    Third District
    No. 81-331
    Opinion filed May 17,1982.

      John A. Barra, State’s Attorney, of Peoria (Roberta L. Szydlowski, Assistant State’s Attorney, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

In this appeal we are asked to review an order entered on May 5, 1981, by the circuit court of Peoria County which sustained the objection of the appellee, the Radnor Grange (taxpayer), to real estate taxes for 1979, paid under protest by the taxpayer in 1980, and directed the county treasurer of Peoria County (treasurer) to refund the taxes to the taxpayer. The basis of the taxpayer’s objection was its contention that the property in question was exempt from taxation under the provisions of section 19.10 of the Revenue Act of 1939 (the Act) (Ill. Rev. Stat. 1979, ch. 120, par. 500.10).

We note, preliminarily, that the appellee has failed to file a brief in this court. While we are not compelled to serve as an advocate for the appellee or to search the record for the purpose of sustaining the judgment of the trial court, where, as is the case here, the record is simple and the claimed errors are such that we can decide them without the aid of an appellee’s brief, we will consider the merits of the appeal. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,133, 345 N.E.2d 493,495.) The instant appeal thus comes before us on the appellant’s brief and the record, which contains a proposed report of proceedings prepared by the treasurer without amendment to or objection by the taxpayer and certified by the trial court pursuant to Supreme Court Rule 323(c) (73 Ill. 2d R. 323(c)).

The record shows that on January 29, 1980, the taxpayer filed a complaint before the Peoria County Board of Review questioning the assessment placed on property owned by the taxpayer. This complaint was addressed to the valuation of the property and included the following notation: “It is suggested that leased land for parking space has been included in land owned by Radnor Grange.” Although the preprinted complaint form provided a space in which the taxpayer could indicate its assertion that the subject property was exempt from taxation, the taxpayer made no such assertion. On April 28, 1980, the board of review issued its final decision, making no change in the valuation of the taxpayer’s property.

Subsequently, 1979 real property taxes were levied against the property based on the valuation which had been confirmed by the board of review. These taxes were paid, under protest, by the taxpayer on August 22, 1980. At the same time, the taxpayer filed a written objection to the Peoria County Tax Collector’s (Collector’s) application for judgment against it on the basis that the taxpayer’s property was exempt from taxation under section 19.10 of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 500.10). That section provides exemptions from taxation for:

“All property which may be used exclusively by societies for agricultural, horticultural, mechanical or philosophical purposes, and not for pecuniary profit.”

Whether the taxpayer’s property is exempt from taxation under this statutory provision is a question we need not address, since something more than status and use of property is required for exemption. The additional requirement is set forth in section 19 of the Act which provides:

“All property described in Sections 19.1 through 19.24 to the extent therein limited, is exempt from taxation. However, it is the duty of the title holder or the owner of the beneficial interest 000 to file with the county assessor, or supervisor of assessments * ” 6 on or before January 31 of each year, a certificate stating whether there has been any change ***.*** Failure to file such a certificate shall * * * constitute cause to terminate the exemption from taxation of that property, notwithstanding any other provisions of this Act.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 120, par. 500.

It is clear that three factors must be met to qualify for an exemption. First, the taxpayer must qualify as an organization described in sections 19.1 through 19.23 — 4 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, pars. 500.1 through 500.23 — 4). Second, the property must not be used for pecuniary profit. (Ill. Rev. Stat. 1979, ch. 120, par. 500.10.) Third, the taxpayer must file an annual certificate of exemption with the county assessor or supervisor of assessments on or before January 31 of each year. Ill. Rev. Stat. 1979, ch. 120, par. 500.

It is axiomatic that the language of a statute must be given its plain and ordinary meaning. In Hall v. Illinois Property Tax Appeal Board (1981), 98 Ill. App. 3d 824, 827, 424 N.E.2d 375, 378, this court noted:

“The primary benchmark in statutory construction has been thus set forth by our supreme court:

‘The primary rule in the interpretation and construction of statutes is that the intention of the legislature should be ascertained and given effect. (People v. Price, 257 Ill. 587, 593.) The legislative intent should be sought primarily from the language used in the statute. Where the language of the act is certain and unambiguous the only legitimate function of the courts is to enforce the law as enacted by the legislature. (Weiss Memorial Hospital v. Kroncke, 12 Ill. 2d 98, 105; Belfield v. Coop, 8 Ill. 2d 293, 307.) It is never proper for a court to depart from plain language by reading into a statute exceptions, limitations or conditions which conflict with the clearly expressed legislative intent. (People v. Boreman, 401 Ill. 566, 572; Wall v. Pfanschmidt, 26 Ill. 180,190-191.) * * V (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84, 256 N.E.2d 758, 764.)”

Not only must statutory language be given its plain and ordinary meanings; in addition, statutory language granting tax exemptions on property must be strictly construed against the taxpayer and in favor of taxation. Christian Action Ministry v. Department of Local Affairs (1978), 74 Ill. 2d 51, 383 N.E.2d 958.

Applying these principles to the case at bar, it is obvious that the taxpayer failed to follow the required steps necessary to qualify for a possible exemption. The record is devoid of any indication that the taxpayer filed a certificate of exemption with the supervisor of assessments as required by the statute. (Ill. Rev. Stat. 1979, ch. 120, par. 500.) Nor did the taxpayer file a complaint alleging exempt status before the board of review, a remedy provided for by section 108 of the Act:

“The board of review shall hear and determine the application of any person who is assessed on property claimed to be exempt from taxation. * * (Emphasis added.) Ill. Rev. Stat. 1979, ch. 120, par. 589(6).

We note that the taxpayer did file a complaint before the board of review questioning the valuation of its property for 1979 tax assessment purposes. From this action, it can be inferred that the taxpayer was aware of the remedy before the board of review but failed to exercise it properly. In addition, we note that the record contains a certificate of exemption, an assessment complaint and accompanying documents apparently filed with the board of review during the pendency of the taxpayer’s objection to its 1979 taxes. According to the appellant’s brief, these documents were never admitted into evidence before the trial court. The appellant wonders how these documents found their way into the record on appeal. We wonder as well, particularly when the appellant bears the primary responsibility for the preparation of the record on appeal. (73 Ill. 2d Rules 321, 323.) However, in light of the fact that the taxpayer made no amendments or objections to the proposed report of proceedings prepared by the appellant and failed to file a brief, we will accept the appellant’s statement that the certificate of exemption, assessment complaint and accompanying documents are not properly a part of the record before us. See People v. Bounds (1976), 36 Ill. App. 3d 330,343 N.E.2d 622 (evidence which was never made a part of trial record not considered by appellate court even though it is included in record on appeal since such evidence was de hors trial record); see also Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill. App. 3d 90, 367 N.E.2d 173, cert, denied (1978), 435 U.S. 970, 56 L. Ed. 2d 61, 98 S. Ct. 1610 (matters raised by taxpayer which were outside of record on appeal will not be considered); Smith v. Georgia Pacific Corp. (1979), 76 Ill. App. 3d 667,395 N.E.2d 214 (where appellee fails to file a brief, appellate court will not act as appellee’s advocate).

Not only did the taxpayer fail to follow the mandatory statutory guidelines to qualify for an exemption, but it failed to pursue the administrative remedy available to it to seek review of the taxes assessed upon its property. The attempt by the taxpayer to avail itself of judicial relief in equity by paying the taxes in question under protest and filing an objection with the circuit court of Peoria County must fail where administrative remedies exist for the same purpose. See Christian Action Ministry v. Department of Local Government Affairs (1978), 74 Ill. 2d 51, 60,383 N.E.2d 958,963, where our supreme court reiterated its pronouncement in Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 359, 326 N.E.2d 737, 741, that:

“ ‘[Ujnlimited freedom to seek judicial review of the merits’ where the legislature has established an express procedure for judicial review ‘would severely undermine the legislative purpose manifest in its enactment.’ [Citations.] This court concluded that the anomaly of allowing the taxpayer to seek judicial relief in equity ‘even though his administrative remedy might accomplish the same result " * e ought not, in our judgment, to persist.’ ”

The record in the case at bar reveals that the trial judge, in sustaining the taxpayer’s objection took judicial notice of the fact that other Granges were tax exempt. In certifying the proposed report of proceedings, the trial judge added the following paragraph:

“The Court took judicial notice of the fact that another Grange (Millbook Grange) in Peoria County Illinois did receive real property tax exempt status for the year 1980 (taxes payable 1981) upon filing of a Complaint (No. DD 602, dtd. 9-23-80) before the Peoria County Board of Review and the Illinois Department of Revenue. The Court took judicial notice of the fact the exemption was granted upon compliance with the statutory procedures.”

This ruling was clearly erroneous, since tax decisions are not res judicata for purposes of subsequent tax cases. Each annual tax is a new cause of action. (People ex rel. Tomlin v. Illinois State Bar (1980), 89 Ill. App. 3d 1005, 412 N.E.2d 198.) From this reasoning, we conclude that tax decisions affecting other taxpayers are not res judicata for similarly situated taxpayers.

Lastly, we note that the taxpayer relied on the case of In re Application of County Treasurer (1977), 52 Ill. App. 3d 718, 367 N.E.2d 1021, in support of its objection filed in the trial court. In that case, the taxpayer Grange had paid real property taxes for 1973 under protest and then filed a complaint for exemption with the county board of review. When that complaint was denied, the taxpayer appealed. The issue before the reviewing court was whether the property of the taxpayer was entitled to tax exempt status. Clearly, that case is distinguishable on its facts from the case at bar. Furthermore, its holding is not pertinent to the issues before this court in the instant appeal.

For the foregoing reasons, we reverse the judgment of the circuit court of Peoria County and sustain the collector’s application for judgment and order of judgment for 1979 real property taxes assessed against the taxpayer, Radnor Grange.

Reversed.

SCOTT, P. J., and STOUDER, J, concur.


author: JUSTICE LINDBERG

text:
    DONALD PURN et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION, COMMUNITY UNIT SCHOOL DISTRICT 300, Defendant-Appellee.
    Second District
    No. 81-784
    Modified opinion filed on denial of rehearing July 1,1982.

      Arnold S. Rosenberg and Jacob Pomeranz, both of Cornfield and Feldman, of Chicago, for appellants.
    Gordon E. Schulz, of Dundee, and Bruce C. Mackey, of Klein, Thorpe and Jenkins, of Chicago, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

The issue before us in this appeal is whether teachers are entitled to compensation for working a day added by a school board to make up for the Hostage Day legal holiday declared by the President of the United States and deducted from the mandatory minimum of 176 school days by the legislature. Plaintiffs are teachers employed by defendant, Board of Education, Community Unit School District 300 (Board), Kane County. The Board established a school calendar for the 1980-81 academic year. School was scheduled to begin on August 29, 1980, and end on June 16, 1981.

On April 13,1981, the Board modified the school calendar so that the academic year would end on June 11, 1981. This action eliminated the four days set aside for cancellation of school due to weather conditions (“snow days”), but not used as such. School was held on June 11,1981, to make up for a holiday declared by President Reagan on January 29,1981, to commemorate the release of the American hostages from Iran (“Hostage Day”). Plaintiffs were required to work without compensation on June 11, 1981.

The named plaintiffs sought certification as representatives of the class of all teachers employed by the Board, a declaratory judgment that the holding of a school day on June 11, 1981, was illegal, and compensation for their work on June 11, 1981. Both parties moved for summary judgment. The trial court, without reaching the issue of class certification, granted summary judgment to the Board. The trial court did not rule on the propriety of class certification, and the parties have not raised the matter before this court; therefore, we need not consider this issue on appeal. District 300 Education Association v. Board of Education (1975), 31 Ill. App. 3d 550, 334 N.E.2d 165.

A school board is to prepare an annual calendar for the school term. (Ill. Rev. Stat. 1979, ch. 122, par. 10 — 19.) A minimum term of 185 days is required, to insure 176 days of pupil attendance. (Ill. Rev. Stat. 1979, ch. 122, par. 10 — 19.) The required number of pupil attendance days must be increased by any days, up to a maximum of four, set aside as teachers’ institute days, but not used as such. (Ill. Rev. Stat. 1979, ch. 122, pars. 3 — 11,10—19; Miller v. School District No. 189 (1975), 26 Ill. App. 3d 172, 325 N.E.2d 43.) In its discretion, a school board may specify a closing date earlier than that set originally when the district schools have provided the minimum number of days. (Ill. Rev. Stat. 1979, ch. 122, par. 10 — 19; Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63, 430 N.E.2d 1111.) The teachers employed by the Board agreed, by their contracts, to work in accordance with the calendar set by the Board.

The original term was August 29,1980, through June 16,1981, for the 1980-81 academic year. The total term was 185 days. The term was shortened so that school would end on June 11, 1981, thus eliminating those days in excess of the number of instructional days originally planned. In prior years, the Board reduced its calendar, but not always to the minimum number of days required by statute. One of the days remaining at the end of the calendar for the 1980-81 school year was designed to make up for a snow day. As the record shows, the other remaining day was intended to make up for the Hostage Day holiday. The Board would have met the required number of school days without holding school on June 11,1982.

A school board has substantial discretion over its calendar (Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63, 430 N.E.2d 1111) and over the days its employees will be required to work. (Perlin v. Board of Education (1980), 86 Ill. App. 3d 108, 407 N.E.2d 792; District 300 Education Association v. Board of Education (1975), 31 Ill. App. 3d 550, 334 N.E.2d 165.) However, in order for the Board’s action to be upheld, the action must be in compliance with the Board’s statutory authority. (Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63,430 N.E.2d 1111; Cohn v. Board of Education (1970), 118 Ill. App. 2d 453, 254 N.E.2d 803.) The Board’s action here exceeded that authority.

Hostage Day was a school holiday designated by the President of the United States. Because of this holiday, the Illinois legislature reduced the minimum number of pupil attendance days for the 1980-81 school year to 175, instead of 176. (Pub. Act 82-1, effective March 31,1981; see Pub. Act 82-203, effective August 14,1981.) A teacher cannot be required to teach on holidays. (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 2.) No deduction from a teacher’s time or compensation may be made due to a holiday. (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 2.) The Board’s action is contrary to the statutory mandates provided by these provisions.

Since school was held on June 11, 1981, to make up for a legal holiday, the Board’s action was illegal. The judgment of the Circuit Court of Kane County is reversed and remanded. Summary judgment is entered for plaintiffs. A remand is necessary to determine whether plaintiffs should be certified class representatives and the amount of recovery to which plaintiffs or the class are entitled.

Reversed and remanded.

SEIDENFELD, P. J., and REINHARD, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY N. LANE, Defendant-Appellant.
    Second District
    No. 80-780
    Opinion filed June 2,1982.

      Ralph Ruebner, Mary Robinson, and John R. Wimmer, all of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Nancie Hudell, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Johnny N. Lane, was convicted of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1) and sentenced to six years’ imprisonment. He appeals contending that the trial court erred in: (1) denying his motions to suppress his confessions; (2) denying him the opportunity to present statistical evidence demonstrating black jurors were excluded from the jury pool; (3) denying his motion for a continuance; (4) allowing introduction of evidence inferring defendant had committed other crimes; and (5) denying disclosure of notes made by an assistant State’s Attorney during an interview with the prosecutrix.

Evidence adduced at trial disclosed that on November 20, 1979, defendant and Jennifer_were students at North Central College in Naperville and had been acquainted for about two months. While on a date with another man that afternoon, she saw defendant, who asked her to stop by his room after her date to say goodbye because of the vacation period commencing the next day, and she agreed to do so. Jennifer and Billy Hawkins went to defendant’s dormitory at 11 p.m. and, after the three visited for about 15 minutes, Hawkins left to see a friend in the dormitory next door, saying he would return in 20 minutes. Jennifer said she would wait for Hawkins in defendant’s room and sat with him on his bed watching television and discussing football. Sherry Auclair, another student, stopped in, and after a short visit she also left defendant’s room.

Jennifer testified that when defendant turned off the light and began kissing and hugging her she told him to stop and pushed him away. She attempted to leave the room, but he grabbed her and she struggled and screamed. She testified defendant choked her until she lost consciousness, and when she recovered he said he would use a knife on her if she did not cooperate. He then forced her to remove her clothes and engaged in intercourse with her on the bed. She was wearing a tampon while this occurred.

Michael Hende and Steven Beaty testified that at the time in question they were in Hende’s room next door and heard a scream and the sound of glass breaking. They ran into the hall and from there heard a scream coming from defendant’s room and someone say “get your hands off me, leave me alone.” The noise stopped and they returned to Hende’s room without investigating further. Ten minutes later they heard a bumping noise against the wall which they thought might be a couple “fooling around.”

Billy Hawkins returned during this time period and asked defendant, who came to the door in response to his knock, if Jennifer was ready to leave. Defendant told him to return in about 30 minutes. The lights in the room were off, and Hawkins heard no screams or outcries. When Hawkins returned later Jennifer left with him. She was crying and told Hawkins that defendant had raped her after threatening her with a knife and choking her; she required his assistance to walk to her dormitory. Jennifer went to the room of friends where defendant appeared with a coat she had left in his room; he repeatedly said he was sorry. Jennifer was examined at a hospital and the doctor observed bruises on her neck and recovered a tampon during the pelvic examination which was described as being compressed. Photographs of Jennifer were offered in evidence which disclose a broad band of red marks across her throat.

Defendant testified in trial that sexual activities had occurred between them, with her consent, and that the red marks on her neck were caused by his kisses. He also testified they were social friends and had sexual relations on other occasions. Defendant’s roommate testified Jennifer had visited defendant in his room on other occasions and he would then leave. Jennifer denied having ever gone out or having relations with defendant.

Also admitted in evidence was the testimony of Naperville police officers, Robert Murdock and Michael Cross, who had questioned defendant several hours after the rape complaint. They stated he orally admitted he had choked Jennifer and threatened her with a knife.

Letters written by defendant to Jennifer and Mary_, another student at the college, after his arrest, were read to the jury. In his letter to Jennifer defendant stated, inter alia, that he knew that he had hurt her and was sorry; he asked her to drop the charges. In the letter to Mary, defendant mentioned he was in jail for raping Jennifer, stating, “I just lost my head” and did not know what he was doing.

Defendant made pretrial motions to suppress his confession which were denied by the trial court after hearing. Evidence was there offered that the Naperville police had received the rape complaint at 2 a.m. on November 21. They learned defendant had left the campus and called for the assistance of Chicago police as he resided in Chicago at 13099 South Drexel. At 4 a.m. Chicago police officers, Spiro Patros and Edward Murphy, were advised by telephone that an arrest warrant for rape had been issued in Naperville for defendant and were directed to proceed to his address and take him into custody. At about 5 a.m., after getting the approval of a felony review attorney, the officers went to the single-family residence where defendant resided with his mother, brother and sisters and knocked on the door. An adult woman, apparently defendant’s mother, answered and the officers inquired whether Johnny Lane lived there and if he were at home. The woman responded that defendant was there and the officers asked if they could come in. She thereupon opened the door for them and identified defendant who was lying on a couch. When the officers asked defendant to step outside of the house, the woman stated they could talk to him inside, but the officers declined. Outside of the house the officers advised defendant of his Miranda rights and that a warrant for rape had been issued against him. He was handcuffed and transported to the Chicago 5th district police station and subsequently to the men’s detention center. Officers Murdock and Cross of the Naperville police arrived and questioned defendant at 10:15 a.m. and testified at trial he then admitted to the use of force.

Defendant testified at the suppression hearing that while being transported to the 5th district station he asked the arresting officers if he could see a lawyer and they responded that was possible. Defendant also testified that at the station he asked two other police officers to see a lawyer and was advised that would be taken care of at the men’s detention center. He further testified that he asked police officers for an attorney again at the detention center and that during his questioning by the Naperville officers, when he requested to see an attorney, he was told he could not do so. Defendant’s mother testified she was present at the 5th district station and heard defendant tell the officers that he wished to see an attorney.

Officer Murdock, when called by the State at the hearing of the motions to suppress, denied defendant requested to see a lawyer in his presence. After defendant and his mother testified, defendant rested as to his motions and the trial judge thereupon called for oral argument. The assistant State’s Attorney advised the court that the State was entitled to and needed to have rebuttal of the testimony relating to a request for an attorney, but defendant’s counsel objected, and the trial judge proceeded to hear defendant’s arguments on the merits of the motion without any rebuttal evidence by the State. After argument, the court denied defendant’s motions.

Defendant contends first that the trial court erred in admitting evidence of his confession made following his request for counsel. (Miranda v. Arizona (1966), 384 U.S. 436,16 L. Ed. 2d 694, 86 S. Ct. 1602; Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) The State confesses error, noting that the testimony of defendant and his mother that he had made such a request was not rebutted in the trial court. The State asserts, however, that the error may be considered harmless in light of the other evidence of defendant’s guilt and, alternately, if determined to be not harmless, that we remand to the trial court to give the State an opportunity to present the rebuttal testimony denied it at the suppression hearing.

In People v. Black (1972), 52 Ill. 2d 544, 555, 288 N.E.2d 376, 383, cert, denied (1973), 4ll U.S. 967,36 L. Ed. 2d 689,93 S. Ct. 2155, the court noted:

“In considering whether constitutional error constitutes harmless error beyond a reasonable doubt as required by Chapman v. California, 386 U.S. 18,17 L. Ed. 2d 705, 87 S. Ct. 824, it is not enough that the erroneously admitted evidence be considered merely cumulative or that there be other evidence in the record sufficient to support the conviction. [Citations.] The inquiry of a court of review should not be as to the amount of untainted evidence as compared to the amount of tainted evidence. The focus should rather be upon the character and quality of the illegally obtained evidence as it relates to the other evidence bearing on the same issue and the court should appraise the possible impact upon the jury of the wrongfully obtained evidence. [Citation.]”

See also People v. Hansen (1980), 90 Ill. App. 3d 407,408,413 N.E.2d 103, 105, cert, denied (1981),_U.S__, 70 L. Ed. 2d 136,102 S. Ct. 167.

In the final analysis of all of the evidence offered to the jury in this case it had to decide whether Jennifer’s testimony was more or less credible than defendant’s testimony she had consented. While her testimony was corroborated by certain of the surrounding circumstances, there is little evidence which may impact more adversely upon a jury than a defendant’s confession. Under all of the circumstances of this case, we are unable to conclude that the admission of the illegally obtained confession was harmless beyond a reasonble doubt. See People v. Washington (1977), 68 Ill. 2d 186, 194, 369 N.E.2d 57, 60-61, cert, denied (1978), 435 U.S. 981, 56 L. Ed. 2d 72, 98 S. Ct. 1631; People v. Henenberg (1973), 55 Ill. 2d 5,12, 302 N.E.2d 27, 30.

By the denial of rebuttal the State was foreclosed from bringing in the testimony of those officers to whom defendant stated he had requested an attorney and the incomplete hearing made inevitable the State’s ultimate confession of error. There can be no question that the State had a right to present evidence answering or contradicting the new affirmative matters raised by the defense during the presentation of its case. (People v. Harvey (1980), 92 Ill. App. 3d 465, 470, 415 N.E.2d 1161, 1165.) This substantial right was erroneously denied by the trial court and we conclude the cause must be remanded in order to give the State an opportunity to call rebuttal witnesses in further hearings of defendant’s motion to suppress. See People v. Berg (1977), 67 Ill. 2d 65,70,364 N.E.2d 880, 882; People v. Simmons (1975), 60 Ill. 2d 173,181-82,326 N.E.2d 383, 387; People v. Mertens (1979), 77 Ill. App. 3d 791, 802, 396 N.E.2d 595, 605.

Defendant next contends the trial court erred in denying his motion to suppress the confession as the fruit of his warrantless arrest in his home absent either exigent circumstances or consent to enter. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) We conclude that defendant’s arrest, based upon probable cause and with consent for the officers to enter the home, met the Payton standard.

Officers Patros and Murphy of the Chicago Police Department had been advised through regular police channels (see People v. Kahl (1978), 63 Ill. App. 3d 703, 707-08, 380 N.E.2d 487, 491) that a warrant had been issued (or was in the process of being issued) in Naperville for defendant’s arrest for rape and had also been given his home address in Chicago. They were further given a description of defendant’s car which they located near his home. The officers, who were in uniform, knocked on the front door of the home at about 5 a.m. and an adult woman responded. They inquired whether Johnny Lane lived at that address and the woman said that he did. The officers asked if he were home and, when she responded he was, asked further whether they could come in. The woman then opened the door and let them in. When they entered the house she pointed out defendant who was lying on a couch. The officers asked defendant if he was Johnny Lane and, when he responded that was true, asked him to step outside of the home and there advised him of his Miranda rights.

Defendant does not now suggest the officers lacked probable cause to arrest him, and it is apparent that the facts within their knowledge were sufficient for them to so act. (See, e.g., People v. Sanford (1980), 85 Ill. App. 3d 1010,1012,407 N.E.2d 810, 812.) We find People v. Bean (1981), 84 Ill. 2d 64, 69-70,417 N.E.2d 608, 611, cert, denied (1981),_U.S__, 70 L. Ed. 2d 93, 102 S. Ct. 106, dispositive of the issue of consent. There four police officers investigating an armed robbery went to defendant’s apartment at 8 a.m. without a warrant, but having sufficient facts to constitute probable cause for his arrest. Two officers knocked on the front door and defendant’s mother responded. The officers showed her their badges and said, “Police officers, we want to see Jimmy.” Defendant’s mother asked them into the vestibule where the officers waited while she put on a robe. When she returned they again stated they wanted to see defendant. She asked the officers to wait while she got him, but when they saw defendant emerge from a bedroom they arrested him at gun-point.

The present case is inapposite from Bean only in that here permission to enter the home was not verbalized. In Bean, a person having apparent control over the premises orally invited the officers to come in after they had identified themselves and stated the reason they were there. Here, the woman who responded to the officers’ knock on the door opened it for them to enter after they asked whether they could do so. Defendant relies upon People v. Montgomery (1980), 84 Ill. App. 3d 695, 701-02, 405 N.E.2d 1275, 1281, for the proposition that “mere acquiescence to police authority does not necessarily establish consent,” arguing that the woman merely opened the door and there was no evidence she gestured to the officers to come in. Defendant characterizes her conduct as acquiescence to authority, but not voluntary consent.

The burden was on defendant to establish the illegality of his arrest when he sought to use it as a basis for suppression of his confession. (People v. Genus (1979), 74 Ill. App. 3d 1002, 1007, 393 N.E.2d 1162, 1166.) In Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2059, the court stated that the test for a valid consent is voluntariness under the totality of the circumstances. No evidence was offered in this case that the woman answering the door in response to the officers’ knock did not voluntarily consent to their entry. They asked whether they could enter and she responded by opening the door to them. The officers’ conduct was peaceful and their inquiry reasonable under the circumstances; there was no evidence they did anything to induce her to act against her will or that she did so. (See People v. Genus (1979), 74 Ill. App. 3d 1002, 1014, 393 N.E.2d 1162, 1167.) Payton permits a warrantless arrest in a private dwelling where consent to enter has been given. The officers must necessarily ask permission before entering if it is not offered, and, if the response is negative, may not do so absent exigent circumstances. We conclude the officers’ warrantless arrest of defendant in his home comported with constitutional requirements.

Defendant contends next that the trial court denied him an opportunity to present statistical evidence in support of his claim there was an unlawful disparity between the percentage of black persons in Du Page County and the percentage of black persons comprising the pool from which his jury would be selected.

When the case was called for trial defendant’s counsel orally advised the court that from a cursory observation he saw no black jurors in the jury pool and, as he knew there were black persons living in Du Page County, argued it must be presumed they had been excluded. Defendant thereupon moved for a change of plaintiff’s trial to a location where black jurors would be available or a continuance of trial to a time when another jury pool containing black persons would be present. The trial court pointed out that the black population of the county was small and blacks appeared rarely in the jury pool because of the racial composition of the county, and not by reason of their exclusion. Defendant’s motions were denied, whereupon his counsel advised the court:

“MR. RICHMAN: Judge, just so the record will reflect, I did not have the opportunity to bring in statistics or sheets or voter polls because the motion was made on an oral motion today, and I didn’t want the fact that I did not bring it in to be considered a waiver on behalf of all the information or getting statisticians or getting polls to show you and would take maybe a day for you to read all the exhibits and so forth, to corroborate the nature of the oral motion.”

Defendant did not, however, offer any of the statistical evidence to which he referred in support of his apparent assertion that racial discrimination had affected the selection of prospective jurors.

It is well established that such a claim must be supported by evidence, and counsel’s “cursory observation” of the racial composition of the current jury pool was insufficient to present a prima facie case. (See Castaneda v. Partida (1977), 430 U.S. 482, 51 L. Ed. 2d 498, 97 S. Ct. 1272.) Defendant’s present assertion he was denied an opportunity to submit statistical evidence is not supported by the record. At no time did he offer to do so, nor did he raise that issue in his post-trial motion. There, he simply alleged that the trial court erred in denying his motion for change of venue “by virtue there were no Negroes or minorities to be selected from the jury venire.” He did not, however, request an opportunity to present statistical data or any other evidence and cannot fairly be heard to argue he was denied an opportunity to do so.

Defendant also asserts he was prejudiced by the denial of his oral motion for continuance made when the case was called to trial on July 28, 1980, by reason of the late disclosure by the State of a letter written by defendant to a witness which was subsequently admitted in trial. The State had been directed to make disclosure of evidence to defendant by January 18,1980, pursuant to Supreme Court Rule 412(a) (ii) (73 Ill. 2d R. 412(a)(ii)). The letter in question was first received from the witness by the State’s Attorney on July 18 and a copy was on that day hand-delivered to defendant’s counsel, together with the name and address of the witness.

It is apparent defendant’s attorney had adequate opportunity before or during trial to investigate this matter; nor can he properly charge the State withheld evidence which was not in its possession. (People v. Molsby (1978), 66 Ill. App. 3d 647, 656,383 N.E.2d 1336,1343.) The grant or denial of a continuance is within the sound discretion of a trial court, and its refusal in this case did not inhibit the preparation of the defense to defendant’s prejudice. See People v. Harris (1981), 95 Ill. App. 3d 1, 3-4, 419 N.E.2d 489, 491; People v. Sedlacko (1978), 65 Ill. App. 3d 659, 668, 382 N.E.2d 363, 371.

Defendant also contends the letter should have been excluded from evidence, or additional deletions made in it. He argues that his letter to Mary-, when read together with his other letter in which he requested Jennifer to drop the charge against him, suggests that he was also requesting Mary to drop other pending criminal charges against him.

Evidence which tends to show that an accused has committed unrelated crimes is incompetent and prejudicial. (People v. Donaldson (1956), 8 Ill. 2d 510, 517, 134 N.E.2d 776, 779.) We do not agree, however, that conclusion can reasonably be drawn from the letter to which defendant refers. In it he advised Mary he was in jail for raping Jennifer, stating he had lost his head and didn’t know what he was doing. These expressions by defendant were clearly relevant to the case on trial and were of probative value. In the balance of the letter, other portions of which were deleted, defendant stated he wanted to get out of jail and finish school, and he asked Mary to release some of the pressure from him, requesting that she write to him and express her feelings. No inference was drawn in argument by the State that defendant’s letter referred to other criminal charges against him. At most it appears to be an expression of regret for his conduct and a request for sympathy and communication from Mary. We do not find defendant was improperly prejudiced by the admission of the letter. People v. Gordon (1981), 94 Ill. App. 3d 764,767,419 N.E.2d 66, 69; People v. Price (1979), 76 Ill. App. 3d 613, 633-34, 394 N.E.2d 1256, 1270.

Defendant finally contends the trial court erred in denying disclosure to him, pursuant to Supreme Court Rule 412(a) (i) (c) and (h) (73 Ill. 2d R. 412(a) (i)(c) and (h)), of handwritten notes made by an assistant State’s Attorney during her initial interview with the prosecutrix. The State declined to produce the notes to defendant, asserting they constituted the work product of the State’s Attorney and were exempt under Supreme Court Rule 412(j)(i) (73 Ill. 2d R. 412(j)(i)). The trial court reviewed the memorandum in camera and denied defendant’s motion, finding they were personal notes and contained no new or different information than that already made available to defendant; it also found there was nothing in them favorable to the defendant.

This court has also examined the notes in camera and as we agree with the findings of the trial court, conclude it correctly denied defendant’s motion. See Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103,110-11, 432 N.E.2d 250, 256-67.

Accordingly, the judgment of conviction and sentence thereon will be vacated and the cause remanded for further hearing of defendant’s motion to suppress the confession, given after a request for counsel, at which the State will be allowed to offer the rebuttal testimony denied to it. The defendant may offer surrebuttal if he wishes to do so. If upon its consideration of all of the evidence presented at the hearings of the motion the trial court determines that defendant’s confession was given by police initiative after he had invoked his right to counsel, it will grant defendant a new trial at which the confession will be excluded. If the court determines that defendant’s right to counsel was not violated, it will enter a new judgment reinstating the conviction and sentence.

Judgment vacated and remanded with directions.

LINDBERG and UNVERZAGT, JJ., concur.