author: JUSTICE O’CONNOR PRESIDING JUSTICE CAMPBELL,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK DEAN TEAGUE, JR., Defendant-Appellant.
    First District (1st Division)
    No. 79 — 2095
    Opinion filed August 30, 1982.
    Rehearing denied September 21, 1982.

      CAMPBELL, P. J., dissenting.
    Steven Clark and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant..
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Martin D. Reggi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of three counts of attempt murder, two counts of armed robbery and one count of aggravated battery committed on February 5, 1977. Judgment was entered only on the attempt murder and armed robbery counts and defendant was sentenced to concurrent terms of imprisonment of 30 years on each count.

On appeal, defendant raises numerous issues, including the manner and scope of voir dire, the State’s improper use of peremptory challenges, allegedly improper lay and expert witness testimony, the propriety of jury instructions and prosecutorial comments, reasonable doubt and the effective assistance of counsel.

At trial, defendant pleaded not guilty by reason of insanity. He now contends that he was denied a fair and impartial jury because sufficient inquiry was not made of the jurors regarding their attitudes toward psychiatry and the insanity defense to enable him to excuse jurors for cause and to intelligently exercise his peremptory challenges. He alleges that only those jurors who admitted to having had prior contact or experience with psychiatrists were questioned directly as to whether they had any bias or prejudice against psychiatrists.

As stated in People v. Dallas (1980), 85 Ill. App. 3d 153, 405 N.E.2d 1202, appeal denied (1980), 81 Ill. 2d 595, cert. denied sub nom. Cooper v. Illinois (1981), 450 U.S. 1000, 68 L. Ed. 2d 202, 101 S. Ct. 1708, the only legitimate purpose of a voir dire examination is to assure the selection of an impartial jury. Under Supreme Court Rule 234 (73 Ill. 2d R. 234), the trial court has primary responsibility in conducting the voir dire towards that end. The court may, in its discretion, permit the parties to submit additional questions to it for further inquiry. An abuse of discretion will be found only if, after reviewing the record, it is determined that the court’s failure to ask defendant’s tendered questions thwarted the selection of an impartial jury. 85 Ill. App. 3d 153, 165.

Preliminary to the voir dire of prospective jurors, the trial judge informed the parties that he would conduct the questioning of jurors himself and that proposed questions could be submitted in writing. He questioned all of the prospective jurors generally and a few individually regarding whether they could follow the law as embodied in his instructions regardless of their opinion of the defense of insanity. He also preliminarily questioned the entire venire regarding whether there was anything about the defense of insanity which would prevent them from being fair and impartial. Defendant submitted a list of questions regarding the insanity defense which he contends were necessary to discern any bias or prejudice towards psychiatry or psychiatrists. The court rejected said questions as inappropriate. We have reviewed the record and we do not find such to be an abuse of discretion.

As we have previously stated, the purpose of a voir dire is to select a fair and impartial jury; it is not to be used as a means of preeducating or indoctrinating a jury or as a means of impaneling a jury with particular predispositions. (People v. Nicholson (1978), 61 Ill. App. 3d 621, 626, 377 N.E.2d 1063; Gasiorowski v. Homer (1977), 47 Ill. App. 3d 989, 365 N.E.2d 43.) In Gasiorowski, the court approved of a direct inquiry into a prospective juror’s bias or prejudice which evoked direct and apparently honest responses from the various jurors. (47 Ill. App. 3d 989, 993.) In the instant case, the trial court made repeated inquiries regarding the insanity defense and the ability to remain impartial, which inquiries were made applicable to all of the prospective jurors. At defense counsel’s request, the court agreed to and did ask additional follow-up questions of those prospective jurors who had indicated they had had previous dealings with psychiatrists. Of those who had never utilized the services of a psychiatrist, the judge inquired throughout the voir dire whether anything they had heard, including the more specific questions put to the other jurors, would affect in any way their ability to remain fair to both sides. The record is replete with inquiries such as the following:

“THE COURT: Is there anything that you have heard me ask some of these other people that would make you feel you could not be fair to the defendant and the State as well if you remain as a juror here?”

and of another panel:

“Is there anything- you have heard so far, or anything that maybe has been suggested in some way or another that would make you feel you could not be a fair juror if you remained here as a juror?”

Clearly, the judge observed the prospective jurors and was satisfied that their responses were direct and honest. There is nothing before us to indicate an abuse of discretion with regard to the voir dire and the impaneling of a fair and impartial jury.

Defendant argues that due process and the right of defendant to a trial by a fair and impartial jury were violated by the State utilizing all of its peremptory challenges to exclude black jurors. The record shows that the State exercised all of its 10 peremptory challenges to exclude blacks. Defendant moved for a mistrial after the State had used six challenges against six blacks and again at the conclusion of the jury selection proceedings. The State did not deny that it had used its 10 challenges to excuse 10 blacks, but pointed out that the defense had also excused a prospective black juror, that it had peremptorily excused a white juror who was a prospective alternate and that it was attempting to achieve a balance of men and women and age groups. While an examination of the record shows that white jurors who fell within the men, women and age groups to which the State referred were not excused peremptorily by the State, we do not agree with defendant’s contentions.

It is true that it is constitutional error to exclude a group as a group where it is shown that the group has been systematically prevented from jury service or on particular juries. (Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824; People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046.) No showing of any such systematic action, however, has been made here.

Defendant relies principally on People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, which cites Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, and Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170, and seeks to distinguish Swain and the Illinois cases which followed Swain, In People v. Payne (1982), 106 Ill. App. 3d 1034, 1040, 436 N.E.2d 1046, 1050, the appellate court stated:

“Accordingly, we hold that when it reasonably appears to the trial court, either by its own observation or after motion by the defendant, that the prosecuting attorney is using peremptory challenges to systematically exclude blacks from the jury solely because they are blacks, the court should require the prosecutor to demonstrate, by whatever facts and circumstances exist, that blacks were not being systematically excluded from the jury solely because they were blacks. At this stage, the burden of demonstrating that the Constitution was not being violated is upon the prosecution. Also, at this stage, the trial court should not employ any presumption that the Constitution is not being violated. Once it reasonably appears to the trial court that the accused is being affirmatively denied an impartial jury as required under the sixth amendment, there is no reason to presume that the State is not affirmatively violating the accused’s constitutional entitlement.”

In that case, the court also stated that “a defendant is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross section of the community as the process of random draw and constitutionally acceptable procedures permit.” 106 Ill. App. 3d 1034, 1037, 436 N.E.2d 1046, 1048.

This court, in People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330, appeal denied (1981), 83 Ill. 2d 571, expressly refused to follow the doctrine of the representative cross section of the community as enunciated by the Supreme Court of California in People v. Wheeler, stating:

“We agree with the Wisconsin Court of Appeals that ‘the test proposed by the California court is vague and uncertain, and severely limits the scope of peremptory challenges. If peremptory strikes can only be exercised in a certain way, dependent on circumstances, and subject to judicial scrutiny, they will no longer be peremptory. We refuse to undertake such an alteration of the very nature of the peremptory system.’ State v. Grady (1979), 93 Wis. 2d 1, 13, 286 N.W.2d 607, 612. ***.” (91 Ill. App. 3d 99,105.)

See also People v. Allen (1981), 96 Ill. App. 3d 871, 422 N.E.2d 100; People v. Tucker (1981), 99 Ill. App. 3d 606, 425 N.E.2d 511; People v. Lavinder (1981), 102 Ill. App. 3d 662, 430 N.E.2d 243; People v. Be-lton (1982), 105 Ill. App. 3d 10, 433 N.E.2d 1119. We adhere to our holding in Fleming and decline to adopt the view expressed in Payne.

If, as Payne holds, the State under the circumstances there posited has to show a basis for its peremptory challenges, then the peremptory challenge has been so effectively emasculated as to destroy its function which Swain and Illinois has recognized (People v. Harris (1959), 17 Ill. 2d 446, 451,161 N.E.2d 809):

“The fact that, the State’s exercise of peremptory challenges resulted in excluding them [blacks] from the petit jury did not deprive defendant of any constitutional right. [Citation.] The right of peremptory challenge is a substantial one which should not be abridged or denied. It may, by its very nature, be exercised or not exercised, according to the judgment, will or caprice of the party entitled thereto, and he is not required to assign any reason therefor. [Citation.]”

Further, if the law in Illinois is to be the abolition of peremptory challenges as enunciated in Payne, the problem should be met forthrightly by the legislature by abolishing peremptory challenges to make all challenges challenges for cause and place their exercise in the discretion of the trial judge. This would be in keeping with the modem trend to give the jury selection process to the trial judge. (73 Ill. 2d Rules 234, 431.) See People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602, holding that section 115 — 4(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 115 — 4(f)), which gave opposing counsel the right to conduct voir dire examination of prospective jurors for the purpose of determining their qualifications, was a legislative infringement upon the “judicial power” of the court as reflected in Supreme Court Rule 234 and, hence, was void.

We find no constitutional infirmity in the State’s exercise of its peremptory challenges.

Defendant next contends that he was not proved guilty beyond a reasonable doubt because the State failed to prove he was sane at the time of the offense. He argues that sufficient evidence was introduced at trial to raise a reasonable doubt of sanity and that the State then failed to sustain its burden of proving sanity beyond a reasonable doubt.

Two psychiatrists testified for the defense, giving substantially different diagnoses, yet agreeing that defendant could not conform his conduct to the law on the night of February 5, 1977. Dr. Ziporyn examined defendant on two occasions, the first time being some nine months after the offense and again almost a year later. Defendant exhibited no particular abnormalities in terms of sensorium: his memory and ability to calculate were intact and his apperception was within normal limits. Defendant exhibited hyperactivity of the body and rumination. Dr. Ziporyn performed no psychological tests on the defendant nor did he speak to any members of defendant’s family, defendant’s co-workers or police personnel. He did not question defendant about the events of February 5, 1977. In response to a hypothetical question which assumed facts as had been testified to by defendant’s mother and brother and the circumstances of the offense, Dr. Ziporyn expressed the opinion that defendant was suffering from a psycho-neurotic anxiety reaction at the time of the offense, as a result of which he lacked the substantial capacity to appreciate the criminality of his conduct and was unable to conform his conduct to the requirements of the law. On cross-examination, Dr. Ziporyn stated that it is possible for a person suffering from a psychoneurotic anxiety state to conform his conduct to the requirements of the law.

Dr. Seglin also testified for the defense. It was his opinion that defendant was suffering from a hysterical fugue state on the date in question, which caused him to act in an automatic, robot-like manner and as a result of which defendant could not appreciate the criminality of his acts. Dr. Seglin also testified that amnesia was one aspect of a fugue state and it was his opinion that defendant had total amnesia between the time he left his home in Rock Island, Illinois, and recovered his memory in the Oak Park hospital on the night of the arrest. His opinion was based on a single interview with the defendant two years after the offense. On cross-examination, defendant’s remarks to a newspaper reporter made two or three days after the offense were interjected into the hypothetical, inducing Dr. Seglin to change his diagnosis from a total amnesia to a partial one. The doctor also testified that driving one’s automobile in conformity with the rules of the road was conforming one’s conduct to the requirements of the law.

Defendant’s mother and brother both testified as to defendant’s background, including the fact that he had been incarcerated for almost eight years on a bank robbery conviction which was subsequently reversed. During his incarceration, defendant suffered from much stress; his grandmother, who had raised him, died and his common-law wife and daughter left the State, cutting off communication with him. Upon his release from prison, he entered into a hasty and short-lived marriage and worked two jobs while attending college. Since his release, defendant appeared to be under considerable stress, to be depressed and have sudden mood changes. Both defendant’s mother and brother were of the opinion, however, that defendant knew the difference between right and wrong. He drove a car and followed traffic rules. Defendant had never done anything in their presence to indicate that he was unable to conform his conduct to the requirements of the law.

We agree with defendant that sufficient evidence was adduced to bring his sanity into issue. The question then is whether the prosecution sustained its burden of establishing defendant’s sanity on February 5, 1977, beyond a reasonable doubt. We find that the State has met its burden.

The issue of a defendant’s sanity at the time of the offense is generally a question of fact for the jury and a jury’s finding on the issue of insanity will not be disturbed unless it is so manifestly against the weight of the evidence as to indicate the verdict was based on passion or prejudice. (People v. Martin (1980), 87 Ill. App. 3d 77, 81, 409 N.E.2d 114, appeal denied (1980), 81 Ill. 2d 604; People v. Spears (1978), 63 Ill. App. 3d 510, 517, 380 N.E.2d 423, appeal denied (1978), 71 Ill. 2d 620.) We also note that a jury is not required to accept the conclusions of a psychiatrist and may properly reach a finding of sanity by accepting lay testimony over expert testimony. (See, e.g., People v. Ford (1968), 39 Ill. 2d 318, 235 N.E.2d 576.) Moreover, the weight to be given an expert’s opinion is measured by the reasons given for the conclusion and the factual details which he marshals in support of it. (People v. Meeker (1980), 86 Ill. App. 3d 162, 169, 407 N.E.2d 1058.) Resolution of contradictory testimony and determination of its weight and credibility are for the trier of fact. People v. Ward (1974), 19 Ill. App. 3d 833, 313 N.E.2d 314.

The State introduced expert testimony which was in direct conflict with the findings of defendant’s experts. Dr. Kaplan, a psychiatrist, interviewed defendant on August 12, 1977, for some 50 minutes, pursuant to court order, for the purpose of determining his fitness for trial. Dr. Kaplan found defendant fit to stand trial. An initial diagnosis of a passive aggressive personality with alcoholism was based on the results of psychological tests performed on defendant and a social worker’s report of an interview with defendant’s wife. At the time of the interview on August 12, defendant was unable to relate any details regarding the events of February 5. Dr. Kaplan did not at that time form an opinion as to defendant’s mental state at the time of the offense. Contrary to the opinion of Dr. Seglin, who had testified for the defense, Dr. Kaplan testified at trial that it was very difficult to conceive of an individual suffering from a hysterical fugue state to rob a grocery store at gunpoint, since the nature of a hysterical fugue state has to do with some conflict that the person suffering has a great deal of difficulty facing up to. Dr. Kaplan diagnosed defendant at trial as having an antisocial personality disorder, and he expressed the opinion that defendant could, on February 5, 1977, appreciate the criminality of his acts and conform his conduct to the requirements of the law. In addition to his interview of defendant and the previously mentioned reports, Dr. Kaplan based the later diagnosis on police reports of the incident, defendant’s criminal history and a newspaper interview containing defendant’s account of the circumstances of the offense and his reactions, given only days after the incident.

We cannot say that the jury’s decision to discount the testimony of defendant’s experts was manifestly against the weight of the evidence. (See People v. Mahon (1979), 77 Ill. App. 3d 413, 395 N.E.2d 950, appeal denied (1980), 79 Ill. 2d 628; People v. Ford (1968), 39 Ill. 2d 318.) The jury could and apparently did accord more weight to the testimony of the state’s expert, which was corroborated by several lay witnesses:

Naaman Robey, a security guard on duty at an A & P store on the night of February 5, .1977, testified that he was in the rear of the store when he first noticed defendant, whom he mistook for an ordinary customer. Defendant approached him, put his hand on Robey’s pistol, placed a gun in Robey’s ribs and announced a stickup. In a clear voice, defendant told Robey to have the manager fill a satchel with money. He advised Robey that he would not kill him if he did as he was told. As they approached the store manager, defendant also ordered a customer in the area to join the group at gunpoint. Before he exited the store, defendant instructed the three of them to lie on the floor. At that time Robey noticed that defendant’s face was covered with black shoe polish. Defendant’s speech was not slurred, nor was he quivering, shaking or twitching, and he walked in a straight manner. Based on his specific observations of defendant during the course of the armed robbery, Robey expressed the opinion that defendant could “well know” what he was doing and could have conformed his conduct to the law.

Claus Kage, assistant manager of the A & P store, testified that at 10:30 p.m. on February 5, 1977, he was called to the service area, where Robey was standing with defendant beside him. Robey explained that defendant wanted money. Defendant directed them into the office, where Kage found the safe empty. Defendant then directed him to look in the tills stuck in a cubbyhole and Kage placed the money from the tills in defendant’s bag. Defendant had trouble with a small gate leading from the office and he ordered Kage to “get this damn door open.” Defendant ordered them to lie down and ran out. Defendant did not appear to be in a trance or sick to his stomach. In Kage’s opinion, defendant could appreciate the criminality of his acts in that “he knew precisely what he was doing.” This opinion was based on the way defendant looked at him, the way he talked and the way he held his gun, which was very, very steady. Defendant was not violent and was operating in a normal manner. It was Kage’s opinion that defendant was “sane.”

Oak Park police officer Richard Toll testified that he was responding to a broadcast of an armed robbery at 10:30 p.m. on February 5. He stopped his car approximately 10 feet from the east exit of the A & P store while another officer, Dan Muth, stopped his vehicle 10 to 20 feet from the west exit. Toll observed defendant exit through the east door. As defendant passed Muth’s vehicle on the passenger side, Muth shouted, “Halt, police.” Defendant pulled out a gun and fired two shots over the roof of the car. Toll then fired a shot in defendant’s direction and defendant turned and ran east through the parking lot. Both officers chased the defendant on foot, losing sight of him as they entered a gangway between two buildings. Defendant appeared from a distance of 30 to 40 feet, fired a shot which struck Muth in the thigh, and then fled. Toll observed defendant again for approximately two minutes in front of a nearby building. He expressed the opinion that defendant was sane and could appreciate the conduct in which he was participating.

Sergeant Clyde Van Nest testified he also was responding to the armed robbery broadcast on the night in question. He observed defendant head southbound and exit on the north side of a building. He pulled to the curb and ordered defendant to halt and drop his gun. Defendant, who was 30 feet from Van Nest at the time, dropped his gun and the vinyl case he was carrying. At Van Nest’s direction, he put his hands on top of his head and dropped to his knees. The vinyl case contained another gun and an amount of U.S. currency. Before placing defendant in the squad car, Van Nest read him his Miranda rights from a preprinted card and defendant responded that he understood. Van Nest and Officer Michalek then transported defendant to the emergency room of Oak Park Hospital. Defendant told them he had a gunshot wound. Defendant walked unaided into the emergency room and followed directions given by a nurse, hospital personnel and an X-ray technician. He also gave the nurse specific information required and signed his name on the admission form. Van Nest was with defendant the entire time between apprehending him and when he was taken to the police station some 2V2 hours later.

Officer Frank Michalek testified he sat with defendant in the back of the squad car as he was transported to the hospital. He observed defendant sign an authorization form for treatment. Defendant did not ask what he was doing there nor did he look bewildered or astonished. When defendant was later taken to the police station, he provided Michalek with the required information to complete his arrest card. Defendant also chose his position in a station house lineup. Both Officers Van Nest and Michalek were of the opinion that defendant could conform his conduct to the requirements of the law.

Defendant does not dispute that nonexperts who have had opportunities to observe a person may give their opinion of his mental condition or capacity. (People v. Krauser (1925), 315 Ill. 485, 510, 146 N.E. 593; People v. Patlak (1936), 363 Ill. 40, 1 N.E.2d 228.) Rather, he contends that the lay witness opinion testimony elicited by the state was either wholly lacking in foundation or distorted the legislatively prescribed test of insanity, thereby creating a misapprehension of law which improperly influenced the jury. Specifically, defendant contends that the State blurred and weakened the more discriminating aspects of the statutory definition of insanity by eliciting lay witness testimony which equated defendant’s sanity with whether he knew the difference between right and wrong, knew what he was doing or had the ability to follow traffic laws, thereby ignoring the concept of substantial capacity and the existence of a mental disease or defect.

Section 6 — 2 of the Criminal Code of 1961, which defines the affirmative defense of insanity, provides in part (Ill. Rev. Stat. 1975, ch. 38, par. 6-2):

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”

In contrast to the earlier rule in Illinois, which required a finding of total incapacity to know that certain conduct was wrong, the present test is based on a determination of substantial incapacity to appreciate the wrongfulness of particular conduct. (People v. Spears (1978), 63 Ill. App. 3d 510, 516; American Law Institute Model Penal Code sec. 4.01; Ill. Ann Stat., ch. 38, par. 6 — 2, Committee Comments, at 329 (Smith-Hurd 1972).) The principal question raised by an assertion of the insanity defense is “whether defendant’s incapacity proceeds so far as to render him incapable of ‘conform(ing), his conduct, to the requirements of the law.’ ” (Ill. Ann Stat., ch. 38, par. 6 — 2, Committee Comments, at 329 (Smith-Hurd 1972).) Thus, an accused who understood the nature of his conduct and appreciated its wrongfulness will still be excused from criminal liability if his ability to consciously refrain from that conduct was substantially impaired by a mental disease or defect. People v. Spears (1978), 63 Ill. App. 3d 510, 516.

We find that the State has satisfied its burden by the facts in evidence and by the ample lay witness opinion testimony presented at trial. (See People v. Young (1978), 60 Ill. App. 3d 351, 353, 376 N.E.2d 739, appeal denied (1978), 71 Ill. 2d 614.) As previously stated, the general rule is that nonexperts who have had an opportunity to observe a person may give their opinions of his mental condition or capacity based on facts observed, including conversations with him. To render such opinions admissible, they must be limited to conclusions drawn from the specific facts to which they testify. (People v. Patlak (1936), 363 Ill. 40, 44; People v. Krauser (1925), 315 Ill. 485.) Whether sufficient facts and circumstances have been testified to is within the discretion of the trial court and absent an abuse of discretion, its determination will not be reversed on appeal. People v. Lechner (1976), 35 Ill. App. 3d 1033, 1041, 342 N.E.2d 820, appeal denied (1976), 63 Ill. 2d 553; People v. Kuntz (1977), 52 Ill. App. 3d 804, 809.

We find no such abuse of discretion here. Several lay witnesses testified as to facts and circumstances from which the jury could have drawn its conclusion. The testimony that defendant appeared normal was substantiated by defendant’s apparent ability to follow instructions given to him on the night of February 5. In addition, the evidence at trial included the fact that defendant’s automobile was found some one-half block from the scene of the crime containing several articles, including a can of black shoe polish, cotton balls and rubbing alcohol. The existence of a plan or design for a crime, especially for escape and prevention of detection or concealment of the crime, has been held to be a factor of particular relevance to a defendant’s sanity. (People v. Spears (1978), 63 Ill. App. 3d 510, 519; People v. Dunigan (1981), 96 Ill. App. 3d 799, 822, 421 N.E.2d 1319, appeal denied (1981), 85 Ill. 2d 569.) We find that the evidence showed a substantial plan: defendant carried a satchel in which to conceal his weapon and to place the proceeds of the robbery. He disguised himself by covering his face with shoe polish. His getaway car was posted nearby. When ordered to halt by Officer Muth, defendant fired two shots before fleeing down a gangway. From the totality of the evidence presented, the jury could properly find that defendant both appreciated the criminality of his conduct and could conform his conduct to the law on the date in question.

Defendant next contends he is entitled to a new trial where alleged errors may have caused the jury to reject the defense of insanity without examining the evidence. Specifically, defendant alleges that the State elicited certain testimony on cross-examination which unfairly discredited defendant’s expert witness and that the trial judge then erred in barring certain testimony which would have shown bias on the part of the State’s expert. When coupled with the prosecutor’s closing argument which denigrated the defense of insanity, he argues that the alleged defects constitute reversible error. We do not agree.

We first note that none of the alleged defects were objected to at trial or by way of a post-trial motion. Failure to make a timely objection to improper remarks generally constitutes a waiver of that issue for purposes of appeal. (People v. Skorusa (1973), 55 Ill. 2d 577, 304 N.E.2d 630; People v. Boyd (1980), 88 Ill. App. 3d 825, 856, 410 N.E.2d 931, appeal denied (1981), 82 Ill. 2d 586, cert. denied (1981), 454 U.S. 1080, 70 L. Ed. 2d 613, 102 S. Ct. 633.) Moreover, the trial court is in a better position than a court of review to determine the prejudicial effect, if any. Notwithstanding the rule, a reviewing court may consider the argument if the defendant would be so prejudiced as to be denied a fair trial. People v. Brown (1974), 20 Ill. App. 3d 1064, 1066, 313 N.E.2d 488; People v. Boyd (1980), 88 Ill. App. 3d 825, 856.

Defendant’s expert, Dr. Seglin, was cross-examined after testifying to his opinion that defendant was insane at the time of the offenses. Defendant contends that the prosecution discredited Dr. Seglin’s testimony by repeated inferences that the doctor hid behind the doctor-patient privilege by advising defense attorneys not to request written reports regarding their client’s sanity. In closing argument the harm was compounded, defendant alleges, by the State’s comparison of Dr. Seglin to Dr. Kaplan, the State’s expert, who had that very morning testified for the defense. In surrebuttal, the defense then attempted to prove bias of the State’s expert by showing that the trial in which he had testified that morning was a stipulated bench, as opposed to a contested hearing. We have examined each of the alleged defects in context and find none of them to present reversible error, either individually or cumulatively.

We note first that the two experts testifying for the defense gave substantially different diagnoses. As we have already stated; the jury was free to accept either testimony or could discount both testimonies. (People v. Spears (1978), 63 Ill. App. 3d 510, 518.) Since we find the lay opinion testimony and other factors in evidence sufficient to uphold the jury’s finding of defendant’s sanity beyond a reasonable doubt at the time of the offenses, any purported error in this regard must be considered harmless. Further, a reviewing court will not find a prosecutor’s arguments prejudicial error unless the jury would have reached a contrary verdict had the improper remarks not been made. People v. Boyd (1980), 88 Ill. App. 3d 825, 855-56.

We likewise find little merit in defendant’s argument that he was precluded from proving a fact in surrebuttal which would have established bias of the State’s expert. While we agree that showing interest, bias or motive is an accepted method of impeachment (People v. Thompson (1979), 75 Ill. App. 3d 901, 903, 394 N.E.2d 422, appeal denied (1979), 79 Ill. 2d 623), we find no abuse of discretion in the trial court’s determination that the factor which defendant sought to introduce was neither material nor impeaching. The evidence showed that Dr. Kaplan had testified approximately 15 times for the defense. His opinion as to defendant’s sanity was corroborated by numerous lay witnesses, as well as by facts in evidence. In light of the foregoing, the barring of the specific factor which defendant sought to establish cannot be said to have been a material factor in defendant’s conviction.

Defendant also contends that reversible error occurred when the jury was not properly instructed on the element of intent required for attempt murder or on lesser included offenses than those charged. Since defendant failed to raise these objections at trial or by written motion, we may consider them pursuant to Supreme Court Rule 451(c) only if there is a substantial defect in the instructions or the interests of justice so require. 85 Ill. 2d R. 451(c); People v. Pardo (1980), 83 Ill. App. 3d 556, 564, 404 N.E.2d 501, appeal denied (1980), 81 Ill. 2d 597.

The tendered instructions on attempt murder were as follows:

“A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder. The crime attempted need not have been committed.
A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he intends to kill that individual; or he knows that such acts will cause death to that individual.
To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission of the crime of murder; and
Second: That the defendant did so with intent to commit the crime of murder; and
Third: That the defendant was then sane.” (Emphasis added.)

Defendant argues that the instructions as given, even though there was a specific reference to the intent to kill, allowed the jury to convict him if they found he had something less than specific intent to murder. He distinguishes between the intent to murder and knowledge that one’s acts will cause death. The court in People v. Morano (1979), 69 Ill. App. 3d 580, 387 N.E.2d 816, appeal denied (1979), 79 Ill. 2d 616, dealt with similar instructions which were couched in terms of knowledge of “the probability of death” and concluded that “[t]he belief on the part of an actor that certain results would follow his conduct is sufficient to show a specific intent for that result to occur.” 69 Ill. App. 3d 580, 586. See also People v. Shields (1955), 6 Ill. 2d 200, 206, 127 N.E.2d 440.

The cases cited by defendant, including People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28, People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, and People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343, are distinguishable in that they each involved instructions containing alternate definitions of murder framed in terms of “great bodily harm.” The instruction at issue does not contain the objectionable language and was therefore proper. People v. Morano (1979), 69 Ill. App. 3d 580; People v. Hancock (1980), 83 Ill. App. 3d 700, 704-05, 404 N.E.2d 914, appeal denied (1980), 81 Ill. 2d 595; see also People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404, cert. denied (1981), 452 U.S. 964, 69 L. Ed. 2d 976,101 S. Ct. 3116.

We similarly reject defendant’s contention that the jury should have been instructed regarding the lesser included offense of reckless conduct. It is within the province of the jury to decide whether or not the accused is guilty of the crime charged or of a lesser included offense where there is evidence which tends to prove the lesser, rather than the greater, crime. Nonetheless, where the evidence shows the accused is either guilty of the higher offense or not guilty of any offense, an instruction on the lower offense is unnecessary and properly refused. (People v. Thompson (1976), 35 Ill. App. 3d 773, 776, 342 N.E.2d 445, appeal denied (1976), 63 Ill. 2d 554.) We hold that the evidence presented was sufficient to convict the defendant of the higher offense and that defendant has therefore failed to show substantial defects in the instructions given to require reversal.

Having reviewed the record with regard to defendant’s two remaining contentions, we feel that they can be disposed of summarily. Defendant contends that his constitutionally guaranteed rights to be present at trial and to confer with his counsel were violated when, after repeated warnings from the trial judge, he was removed from the courtroom for disrupting the proceedings. Defendant does not dispute that such an act was within the court’s discretion, but argues that reversible error occurred when he was transported back to the jail, as opposed to the courthouse lockup, for a matter of hours. Defendant also contends that he was denied the effective assistance of counsel where the defense attorney failed to adduce evidence that his prior incarceration on a bank robbery conviction was unjust, although evidence that said conviction was reversed and never retried was presented. He maintains that this fact, if introduced, may have influenced the jury to credit the evidence that his wrongful conviction had contributed to his mental illness.

We find little merit in either of these claims in view of our findings with regard to reasonable doubt and the sufficiency of the evidence pertaining to defendant’s guilt. Further, there is nothing in the record to indicate that defendant was deprived of very thorough and competent representation throughout the course of the proceedings, far surpassing the minimum standards for representation required by law.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McGLOON, J., concurs.

PRESIDING JUSTICE CAMPBELL,

dissenting:

I agree with the majority that the evidence of guilt was overwhelming as to the charges against defendant. I respectfully dissent, however, insofar as the majority has affirmed the judgment of convic-tion and refused to grant a new trial, where defendant, a black man, raised the issue of racial bias where the State exercised 10 of its peremptory challenges to excuse every black person from the jury. No black juror sat on the jury.

Defendant’s counsel objected to the tactics of the State and stated, “As the Court is aware State exercised 10 peremptory chai-lenges and each challenge excused a Black person. I feel that my client is entitled to a jury of his peers, your honor. I feel that he is being denied this. I would ask the Court for a mistrial.” The State responded by stating that “there was an attempt, your Honor, to have a balance of an equal number of men and women as the jury is now comprised there are seven men and five women sitting on the jury. We feel counsel’s motion is totally improper.”

The court then stated, “Counsel, I feel that it would appear that the jury appears to be a fair jury. I will deny your motion.”

The above constitutes the extent of the inquiry and pretrial hearing on the issue of the improper use of the State’s peremptory challenge to achieve a racially biased jury. Defendant argues that the State failed to explain why the blacks excluded did not fit the profile of the jurors selected and approved by the State. On appeal, the State, conceding the use of its peremptory challenge to exclude 10 blacks from jury duty, has reaffirmed its position by stating in its brief “the People attempted to have a balance of men and women.” The State seems to be simply arguing how a jury is selected and defendant is arguing why a jury is selected. The State relies on Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, and contends that defendant may not inquire into a prosecutor’s motives in a particular case and the. presumption must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury.

This presumption must give way in the light of facts to the contrary as are evident in this case. This court, in a well-reasoned decision, People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, recently held that under the sixth amendment,

“Swain does not apply to an accused’s right not to have the State affirmatively frustrate his sixth amendment right to a jury drawn from a fair cross section of the community, which is the constitutional issue underlying a decision in this case. We therefore apply Taylor and its rationale to this case rather than Swain, and we conclude that the sixth amendment precludes the State, i.e., the prosecuting attorney, from affirmatively frustrating the right of the accused to a jury drawn from a fair cross section of the community by utilizing peremptory challenges to exclude blacks from the jury solely because they are blacks.” 106 Ill. App. 3d 1034, 1042-43, 436 N.E.2d 1046,1052.

The Payne case goes into great detail to set forth the numerous cases wherein this issue has been raised, and this pernicious and systematic practice by the State is made even worse by the frequency of the occurrence. There is little doubt that the State has embraced enthusiastically the results produced by the improper use of the peremptory challenge to achieve a racially biased jury in this case. In fact, this practice was unnecessary and superfluous and resulted in error. The evidence of guilt was so overwhelming that the finding of guilt would probably not have changed even if the composition of the jury had been of the same ethnic group as defendant.

The State also argues that defendant must show the systematic use of peremptory challenges against blacks over a period of time. This argument completely exonerates the State and gives the State the clean hands it claims it so richly deserves. To cast such a burden on defendant denies defendant a fair trial and ascribes good faith efforts to the State despite the presence and existence of the unconstitutional practice of the State of arbitrarily withdrawing the privilege of jury service from black citizens. The practice of the State may appear fair in form, but admittedly has a discriminatory impact and discriminates in its operation.

Any such burden placed on defendant of establishing a prima facie case of prosecutorial misconduct would entail proof of a plan conceived or operated as a purposeful devise or technique to further racial discrimination. The precise nature and extent of the evidence necessary to establish such proof or intent would be most difficult, if not impossible, to achieve.

Any burden placed on defendant should not aid the trial court in avoiding its responsibility to a defendant by closing its eyes to obvious practices occurring at trial in open court especially where such practices tend to undermine our traditional guarantee of a fair trial.

In Commonwealth v. Henderson (1981), 497 Pa. 23, 438 A.2d 951, Justice Nix stated in his dissent: was clear not to endorse the prosecutor’s conduct but to protect the integrity and proper administration of the judicial system. The observation by the court in this case was “that the jury appears to be a fair jury” was clearly an endorsement. The defendant disagreed with a timely objection and with ample justification. A more probing and searching look and a more extensive hearing by the court was needed so that a disproportionate number of challenges were not used to facilitate and justify an invidious discriminatory purpose. See People v. Payne; People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890; Commonwealth v. Soares (1979), 377 Mass. 593, 387 N.E. 2d 499, cert. denied, (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170; see also Annot., Use of Peremptory Challenges, 79 A.L.R. 3d 14 (1977).

“Is justice to sit supinely by and be flaunted in case after case before a remedy is available? Is justice only obtainable after repeated injustices are demonstrated? Is there any justification within the traditions of the Anglo-Saxon legal philosophy that permits the use of a presumption to hide the existence of an obvious fact?” 497 Pa. 23, 43, 438 A.2d 951, 961.
It would certainly follow in this case that the duty of the court

Payne does not call for the abolition of peremptory challenges or to emasculate its function, but seeks to avoid the consequences of a biased jury and a perverted use of said peremptory challenges by the State with the acquiescence of the trial court. The trial court and this court have approved the conduct of the State by finding that no constitutional infirmity existed in the exercise of the State’s peremptory challenges to obtain a biased jury. The State is again free to engage in more flagrant abuses as appear from the record in this case.

It may be said in this case that one of the grandest of all abounding illusions may be the illusion possessed by the State that through the use of its 10 peremptory challenges to exclude 10 blacks that the State was only attempting “to have a balance of an equal number of men and women.” I remain unconvinced of the State’s efforts and view the action as a devise or technique to circumvent the constitutional guarantees of an unbiased jury and a fair trial. I also find that the principles of Payne, Wheeler and Soares should be controlling in the case at bar and that the application of the standards cited by the State and the majority are misplaced. I would reverse the convictions by reason of the fact that the use of peremptory challenges by the State denied an impartial jury and due process and so tainted or polluted the jury as to require a new trial.

      The opinion in Payne was issued subsequent to oral argument in the instant case.

      It does not appear that any records or reports are compiled of the disposition of cases pursuant to Supreme Court Rule 23 (85 Ill. 2d R. 23), wherein this issue has been raised, i.e. People v. Batteast (1982), 105 Ill. App. 3d 1201.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AUGUSTIN R. REYES, Defendant-Appellant.
    First District (2nd Division)
    No. 80 — 2166
    Opinion filed August 31, 1982.
    James J. Doherty, Public Defender, of Chicago (Barbara Anne Steinberg and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joan S. Cherry, and Barbara Levin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant, Augustin Reyes, was charged in an information with murder and armed violence. (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1(a)(1), 9 — 1(a)(2), 33A — 2.) In a jury trial defendant was found guilty of both offenses. The court entered judgment on the verdicts and sentenced defendant to serve 30 years in the Illinois Department of Corrections on the murder conviction. No sentence was imposed on the armed violence judgment.

On appeal defendant contends: (1) that the trial court erred in determining that there was an independent basis for the in-court identifications of defendant by two eyewitnesses; (2) that defendant was not proved guilty beyond a reasonable doubt; (3) that the trial court erred in refusing to allow the jurors to visit the scene of the crime and in permitting the testimony of five State witnesses to be read to the jury; and (4) that the cause must be remanded for resentencing on the murder conviction because the trial court improperly entered judgment on the armed violence conviction.

For the reasons hereinafter stated, we affirm the conviction and sentence for murder and vacate the armed violence judgment.

Two of the State’s eyewitnesses, Deborah Udchik and Pamela Jones, viewed defendant at separate times in two lineups. Neither witness identified defendant in the first lineup, and both identified him in the second. Defendant was the only person who appeared in both lineups. Prior to trial defendant moved to suppress Deborah’s and Pamela’s identifications of defendant in the second lineup and their in-court identifications at trial.

At the suppression hearing, Deborah testified that at 9 p.m. on June 20, 1979, she and her boyfriend, Lozarro Torres, were conversing while leaning against a car parked on the east side of St. Louis near Wrightwood in Chicago. It was dark outside, and the closest street light was 200 feet away near an alley. Deborah first saw the defendant, whom she did not know, at a distance of 30 feet. Deborah and her boyfriend stopped talking as defendant walked towards them. At a distance of 15 feet, defendant said, “O.A. Love,” and continued to approach them. Deborah looked at defendant as he walked towards them. When the man was within five feet of Deborah and Torres, he stopped, asked Torres, “Who are you?” and when Torres said, “No!”, shot Torres once, then turned and fled from the scene.

Deborah estimated that “about a minute, a minute and a half” elapsed from the time she first saw defendant on the street until he ran after the shooting, and that 30 seconds passed from the moment he said “O.A. Love” until he shot Torres. During that 30-second interval, Deborah looked at and was able to see defendant’s face. She described the assailant as five feet six inches tall, 140 pounds, and 17 or 18 years old. He seemed shorter than Deborah (who was five feet eight inches tall at the time), but she was not certain whether he was shorter or taller than she because she was leaning against a car. When asked if the man had any distinguishing marks on his body or face, she answered, “I don’t know. I don’t remember. I don’t think so. I am not sure.” When asked whether defendant wore glasses, or had a moustache or a beard, Deborah said, “I think he had a moustache.” The defendant was wearing light blue “baggies” and a light colored “gauze-like” shirt with the sleeves rolled up.

Deborah testified that she spoke with the police at the scene immediately after the shooting and gave them a description of the assailant that was similar to the one she related at the suppression hearing. The court sustained the State’s objection to defense counsel’s question regarding whether Deborah had ever told the police that the shooter had a “black afro.” Later in the hearing, she said that she did not know what an afro is. At trial, however, she denied that she had ever told the police that the offender had a black afro. That testimony was corroborated by Officer Sesso’s statement that Deborah had told him that the offender’s hair was combed back.

Pamela Jones, who was 16 at the time of the shooting, testified that at about 9 p.m. on June 20, 1979, she was riding her bike north on St. Louis towards Diversey when she passed the defendant who was walking south. After she passed defendant, she turned her bicycle around and followed defendant as he continued down the street. Pamela passed defendant again when he stopped on the corner of Drummond (which is 2634 North) and St. Louis. Pamela rode towards Wrightwood (2600 North), then went back to her home at 2625 North St. Louis. She put her bike in front of her house and walked to the curb. Pamela saw defendant “talking to two guys on the corner” of Drummond and St. Louis. Defendant then walked south on the sidewalk on the east side of St. Louis. Defendant passed directly in front of Pamela at a distance of five feet. It was dark and Pamela thought that a street light across the alley from St. Louis and Wrightwood was broken, but there were other street lights and she could still see. Pamela testified that she saw defendant’s whole face and watched him for a minute as he walked past the front of her home.

After the defendant passed Pamela, she saw Lozarro Torres talking with his girlfriend Deborah Udchik near the corner of St. Louis and Wrightwood. About a minute and a half after defendant walked by, Pamela heard a gunshot and saw defendant standing at that corner. Defendant’s back was towards her. Defendant ran east through an alley that was 15 to 20 feet from her home.

Pamela described the shooter as a dark-skinned, medium build Latin “not much taller” than she (Pamela was five feet four inches tall at the time) with short, dark brown or black hair that was “feathered” back and a “light” moustache. She could not remember the clothes defendant was wearing or what she had told the police about his clothes.

Both Deborah Udchik and Pamela Jones viewed a lineup a few hours after the shooting. They viewed the lineup separately. It was held in a large open room where the persons being viewed could see the witness who was viewing them. Deborah recognized defendant but did not tell the police because she was scared. Pamela told the police that she was not sure that she could identify anyone. Investigator James Banners conducted the first lineup. He testified that Deborah and Pamela viewed the lineup separately. He told them that if they saw the person who had shot Lozarro they should tell him the number above that person’s head. They did not have to point at the person or say anything out loud. Banners stated that Deborah did not identify anyone, and Pamela, referring to the defendant’s number, said, “I think that’s him, but I’m not sure.” According to Banners, Pamela said she was scared or nervous and indicated that something was bothering her. Banners admitted that in his written report he stated that both witnesses were unable to make an identification because they were nervous.

On the afternoon of June 21, 1979, Deborah and Pamela viewed a second lineup consisting of defendant and four other men. Defendant was the only man who appeared in both lineups. The lineup was conducted in a small office, and both Deborah and Pamela, who viewed the lineup separately, were able to see the men in the lineup through a peephole in a door. The men in the lineup could not see the witnesses. In the first lineup none of the men was asked to step forward or say anything. In the second lineup each man was asked to step forward and say the words, “O.A. Love.” Both witnesses identified defendant. Pamela also testified that she recognized his voice because she had heard him say “O.A. Love” the night before.

Deborah testified that the assailant had combed-back short dark brown hair that just covered part of his ears. She admitted that a photograph of the persons standing in profile at the second lineup showed that defendant had considerably longer hair.

Investigator Neil Sullivan explained the procedures followed in the second lineup. Sullivan stated that defendant was five feet nine inches tall at the time of that lineup.

The trial court granted defendant’s motion to suppress the lineup identifications of defendant by Deborah Udchik and Pamela Jones but ruled that there was an independent basis for an in-court identification by both witnesses.

The testimony of Deborah Udchik and Pamela Jones at trial was substantially similar to their testimony on the motion to suppress. Both witnesses identified defendant as the man who shot and killed Lozarro Torres.

Deborah testified that she recognized defendant at the first lineup but did not tell the police because she was scared and wanted to go home. She realized that by not identifying the shooter at that time, Lozarro’s killer would “go back out into the street.” Deborah stated that the offender was five feet six inches tall and that she was five feet eight inches tall. At trial Deborah said that the offender had a light moustache. She admitted that when a defense investigator asked her in a pretrial interview whether the shooter had any facial hair like a beard or moustache, she said, “*** I don’t really know. I don’t think so.” According to Investigator Guthrie, defendant had a mous-tache when he appeared at the police station on the night of the shooting.

Deborah testified further that she was close enough to see and notice anything unusual about the assailant and saw his lips form the words “O.A. Love,” but did not see braces on his teeth.

Pamela Jones testified that she saw defendant talking to George Nieves and Jimmy Rodriguez on the sidewalk near Drummond and St. Louis. When she first noticed him walking south on St. Louis, defendant was not doing anything unusual. Pamela stated that she thought defendant was a couple inches taller than she. (She was five feet four inches tall at the time.) She also testified that she had seen the right side of his face and his back. Pamela admitted that she told a defense investigator in January 1980 that she had forgotten what the man looked like.

At trial the State introduced evidence from a third eyewitness, Jimmy Rodriguez. Rodriguez testified that he was standing on the corner of Drummond and St. Louis with his friend George Nieves when defendant walked up and started talking to them. Defendant asked if there were any Gaylords around. Rodriguez said nothing and Nieves said that he did not know. Patting himself on the hip, defendant said, “I’m packing,” and asked Rodriguez and Nieves if they would like to see him kill a Gaylord. Rodriguez said that defendant talked with Nieves and him for just under two minutes. He then watched defendant walk south on "St. Louis about three-fourths of a block to an alley. When defendant got to the alley, Rodriguez heard him say, “O-A Live” or something similar. He thought that defendant also said, “Gaylords die.” Defendant’s voice was muffled. Rodriguez then heard a loud noise and saw a flash.

Rodriguez identified defendant in court and in a lineup held on June 21, 1979. Investigator Guthrie corroborated the lineup identification. Since Rodriguez did not view the first lineup, his out-of-court identification of defendant was not challenged by defendant in his pretrial motion to suppress.

On cross-examination Rodriguez testified that he did not pay any attention to the defendant’s clothes but said his eyes were “bulgy” and that his hair was black and tossed back. Rodriguez admitted that he told an investigator that the defendant was five feet four inches tall. Although defendant talked in a normal fashion and was close enough for Rodriguez to see his mouth, Rodriguez saw no braces on defendant’s teeth nor did he remember seeing a moustache.

Investigator Guthrie testified that the scene of the shooting was a neutral area between two rival street gangs, the L. A. Gaylords and the Orquestra Albany (O.A.) gang.

Investigator Sesso testified that the street light nearest the scene of the shooting was not working, and the closest functioning street light was at St. Louis and Wrightwood, a quarter block away.

The parties stipulated that Torres died of a single gunshot wound to the heart and left lung.

The defense called one witness, defendant’s father, Juan Reyes. Reyes testified that in June of 1979 his son wore a moustache and had a full set of braces on his upper and lower teeth. He also testified that three or four years earlier his son had told him he belonged to a street gang for self-preservation. Reyes told an assistant State’s Attorney that the gang his son had been associated with was known by the symbol “O-A.” On redirect, Reyes said that his son had never told him the name of the gang to which he belonged. Reyes heard the name at the police station on June 21,1979.

Defendant was found guilty of murder and armed violence.

I

Defendant’s first argument is that the trial court erred in finding that there was an independent basis for Deborah Udchik’s and Pamela Jones’ in-court identifications of defendant sufficient to outweigh the influence of an impermissibly suggestive lineup.

Where an out-of-court identification has been found to be unnecessarily suggestive and inadmissible, the State must prove by clear and convincing evidence that the in-court identification had an independent origin arising from other uninfluenced observations of the defendant. (People v. Scott (1980), 92 Ill. App. 3d 106, 415 N.E.2d 1082.) The determinative factors are “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated at the confrontation and the length of time between the crime and the confrontation.” (Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382; People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) In People v. McTush (1980), 81 Ill. 2d 513, 410 N.E.2d 861, the supreme court noted that whether the witness has any acquaintance with the suspect prior to the crime may be considered an additional factor. Since neither Deborah nor Pamela knew defendant before the crime, this factor is not present.

Deborah Udchik estimated that she saw defendant for “about a minute, a minute and a half.” Thirty seconds passed from the moment defendant said “O.A. Love” until he shot Torres. Defendant was only five feet from her at the time. Pamela saw defendant first as she passed him on her bicycle. She saw him again as he walked by her home. Pamela estimated that she watched him for a minute as he passed her home. He came within five feet of her. Both times she had an opportunity to see his face. The time the witnesses had in this case to view defendant at close range was sufficient to make an identification. People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666; People v. Johnson (1980), 94 Ill. App. 3d 200, 418 N.E.2d 768.

From the record it appears that Pamela noticed nothing unusual about defendant and did not pay much attention to him. She did testify however, that she watched him as he walked past her home. And Deborah concentrated on defendant during the 30-second interval between defendant’s comment and the shooting. We believe that the first two factors of the Biggers test were satisfied. Although defendant stresses that it was night and a street light was out, both witnesses testified that they were able to see defendant’s face. Officer Sesso testified that there were “numerous” lights in the area and that the location of the shooting was no darker than the rest of the street because illumination from the nearby intersection created a “corridor of light all the way up to the alley.” Moreover, Pamela saw defendant at different locations on the street.

The third Biggers factor is the accuracy of the witness’ prior description. Both witnesses gave detailed descriptions of defendant. Defendant, however, points to the discrepancies in the witnesses’ estimation of defendant’s height. Defendant was five feet nine inches tall and the witnesses gave estimates that varied from defendant’s actual height by a few inches. Defendant also stresses that Pamela failed- to mention defendant’s braces or moustache. Pamela, however, never saw defendant speak so she would have had no opportunity to see his braces. Several witnesses characterized defendant’s moustache as “slight” or “light.” Deborah did testify that she thought defendant had a moustache. While she did not see defendant’s braces, braces are not necessarily observable when someone is talking. It must also be noted that Deborah heard and saw defendant speak only six words, “O.A. Love” and “Who are you.” The first three words were spoken at a distance of 15 feet. The last three were spoken at a distance of five feet. Only the word “are” in the question “Who are you?” would normally be said in such a manner so as to reveal the presence of braces.

The discrepancies in the witnesses’ descriptions of defendant are not significant. As in People v. Mendoza (1978), 62 Ill. App. 3d 609, 616 — 17, 378 N.E.2d 1318, “any discrepancies or inaccuracies or omissions as to facial hair *** or some other facial characteristic *** or some other physical characteristic such as height or weight *** are not fatal *** but simply go to the weight of the identification testimony and are to be evaluated by the trier of fact.”

The last two factors enunciated in Biggers are the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation. Here, the first lineup was held a few hours after the crime. Deborah testified that she recognized defendant at the first lineup but did not tell the police only because she was scared. Pamela told the police at the first lineup that she thought defendant was the offender but was hesitant to make a positive identification because she also was afraid. This was corroborated by the investigators who conducted the lineup. Investigator Lanners stated that Pamela pointed out defendant but then backed down because she was scared or nervous. Investigator Sesso testified that Deborah broke down when the suspects faced her and ran from the room. He was unable to get her to return to the room to view the lineup. When he brought Pamela in to view the lineup, she “jumped back,” crying, “I can’t look, I don’t want to look” and left the room.

It is apparent that there is a distinction to be made between a witness’ failure to identify an offender because of uncertainty and failure to identify because of fear. That Deborah Udchik and Pamela Jones did not identify defendant at the first lineup does not cast doubt on their ability to identify defendant at the time of the crime or in court. On the basis of the record before us, we cannot say that the trial court’s determination that there was an independent basis for the witnesses’ in-court identifications was erroneous.

II

Defendant next argues that he was not proved guilty beyond a reasonable doubt. A major portion of this argument is based on defendant’s initial argument. Since that has been resolved adversely to defendant, it will not be restated here.

In the present case, there were three eyewitnesses to the shooting. One witness, Deborah Udchik, was able to view defendant for 30 seconds at a distance of from five to 15 feet as he approached her boyfriend and methodically killed him. A second witness, Pamela Jones, saw defendant while she was riding her bicycle, as he walked past her home and again when he fled in an alley after shooting Torres whom Pamela had seen with Deborah. A third witness, Jimmy Rodriguez, testified that defendant approached him, indicated he had a weapon and said he was looking for some Gaylords. Defendant asked Rodriguez and his friend if they wanted to see him kill a Gay-lord. Defendant then proceeded down the street and shot Torres. Rodriguez saw a flash and heard the noise of a gunshot. He also heard defendant say, “O-A Live” or similar words. In addition, there was testimony that defendant had belonged to a rival street gang.

In our judgment defendant was proved guilty beyond a reasonable doubt of murder.

Ill

Defendant’s third argument consists of two subarguments. First, defendant argues that the trial court erred in refusing the jury’s request, made after deliberations began, to visit the scene of the crime. Defendant, however, did not object to the court’s refusal to allow the jury’s request, nor did he raise it in his post-trial motion for a new trial. Hence, that issue has been waived.

Defendant next argues that the trial court erred in acceding to the jury’s request to have the court read to.it transcripts of the testimony of five State witnesses. At one point in its deliberations the jury requested the court to provide transcripts of the testimony of Deborah Udchik, Pamela Jones, Jimmy Rodriguez and “the police officers.” The court responded that transcripts were not available. Later the jury advised the court that no verdict had been reached but one could be reached if the jury could have the transcripts. The next day a second note was handed to the court which read, “The jury feels that its deliberations can only go forward from this point if it is able to. examine the testimony of Deborah Udchik, Pamela Jones, Jimmy Rodriguez, Officer Sesso, Officer Guthrie.” Over the objections of both parties the court allowed the jury’s request and had the testimony of the five witnesses read to the jury after which the jury continued deliberations and found the defendant guilty of murder and armed violence.

Defendant argues that the court abused its discretion in allowing a “retrial of the State’s case against the defendant.” Although defendant cites authorities indicating that a refusal to read an entire transcript of testimony or a substantial portion thereof is not an abuse of discretion, that does not mean that the granting of such a request is an abuse of discretion, particularly where the jury indicates that a verdict cannot be reached without it. (See People v. McClellan (1979), 71 Ill. App. 3d 611, 617, 390 N.E.2d 131.) Here, the court polled the jury, and each juror expressed his or her concurrence with the will of the jury as a whole. To avoid the possibility of misleading the jury, the court read virtually the entire testimony of every witness whose testimony the jury requested. As a result, the “jury could fairly compare all portions of his testimony.” People v. McClellan (1979), 71 Ill. App. 3d 611, 617.

Defendant’s complaint that the reading of the transcripts was prejudicial because it amounted to a “retrial of the State’s case against the defendant” overlooks the fact that with the exception of one witness, all the witnesses at trial were called by the State. This is not an instance where the testimony of the State’s witnesses was unfairly pitted against that of the defendant whose witnesses’ testimony was not read. The issue in this case was identification. Defendant’s sole witness, his father, shed no light on the circumstances of the crime or the whereabouts of his son at the time it was committed. His testimony was introduced principally for the purpose of establishing that at the time of the crime his son had a full set of upper and lower braces on his teeth and wore a moustache. These facts were also brought out on examination of the State’s witnesses and thus there was no slighting of defendant’s defense.

Neither the number of witnesses nor the extent of the testimony read in this case indicates an abuse of discretion. Indeed, in People v. Smith (1979), 76 Ill. App. 3d 191, 198, 392 N.E.2d 682, the court suggested that a review of the transcripts of testimony of six witnesses would have been proper.

The decision to allow or to refuse a jury’s request for a review of testimony lies within the discretion of the trial court, and that decision will not be disturbed absent an abuse of discretion. (People v. Pierce (1974), 56 Ill. 2d 361, 364, 308 N.E.2d 577.) No abuse of discretion has been shown in the present case.

IV

The final issue raised initially by the State’s answer brief is the propriety of the judgment of conviction for armed violence on which no sentence was imposed. The State asks the court to remand for sentencing under the authority of People v. Pearson (1981), 102 Ill. App. 3d 732, 430 N.E.2d 304. Defendant, however, relying on the recently decided case of People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, argues that the armed violence judgment must be vacated. In our opinion defendant’s argument is well taken.

In Donaldson the supreme court held that “multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges. *** Judgment should have been entered and sentence imposed only on the more serious offense.” (91 Ill. 2d 164, 170.) Here, the more serious offense is murder. The armed violence judgment, therefore, must be vacated. Remandment for resentencing on the murder judgment is unnecessary since the trial court did not impose a single sentence for both offenses. 91 Ill. 2d 164, 170-71.

For the foregoing reasons the murder judgment is affirmed and the armed violence judgment is vacated.

Affirmed in part; vacated in part.

DOWNING and HARTMAN, JJ., concur.

      We note that pursuant to Donaldson, the supreme court vacated the defendant’s conviction for the offense of armed violence in People v. Pearson, cited by the State. See order accompanying denial of the petition for leave to appeal in People v. Pearson (1981), 102 Ill. App. 3d 732, appeal denied (1982), 91 Ill. 2d 564.


author: PRESIDING JUSTICE BARRY

text:
    KATHERINE KITTLE, Plaintiff-Appellant, v. MARION LISS, d/b/a Slim & Chips Tap, Defendant-Appellee.
    Third District
    No. 81 — 662
    Opinion filed August 17, 1982.
    Rehearing denied September 29, 1982.
    Mark Novak and Nat P. Ozmon, both of Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago, for appellant.
    Douglas J. Pomatto and Duncan B. Cooper, III, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Katherine Kittle was injured when she slipped on a small patch of ice near the top of a stairway and fell down the five steps at the main entrance of the Slim and Chips Tap in La Salle, Illinois, at about 2:15 a.m. on January 12, 1979. She filed" suit against the owner of the tavern, Marion Liss, and after summary judgment was entered for the defendant Liss, she perfected this appeal.

In addition to the pleadings, the trial court had before it the evidence depositions of both plaintiff and defendant. It is from those depositions that .the detailed circumstances surrounding the accident can be ascertained for the purposes of this appeal.

Plaintiff was a 25-year old single woman who worked second shift at Sundstrand Corporation in La Salle where she was a bench inspector, a job that required her to inspect and lift various parts of motors. When she finished her shift on January 11, she picked up her sister at the home of friends, and the two women went to the Slim and Chips Tap in La Salle. Plaintiff had been there several times before, and four or five of her co-workers were present that night as they often were. Plaintiff and her sister entered the tavern about midnight and remained until shortly after 2 a.m. During the two-hour period, plaintiff drank two glasses of Mogen David wine on ice. She had had nothing to drink previously that day and had last eaten about 10 p.m. during a break at work.

When the women entered the tavern, the entrance was lit by a street light on a pole 10 or 15 feet from the entrance and by a Hamm’s Beer sign located just above and to the side of the door. Although there was snow on the ground, plaintiff does not recall noticing any snow or ice on the steps leading up to the door. When plaintiff left about 2:15 a.m., the Hamm’s Beer sign was turned off, and the top of the stairs seemed dark although the street light was still on and the bottom of the stairway appeared to be better lit. Plaintiff started to descend the stairs, holding on to the railing, but on the second step from the top her foot slipped on a patch of ice about 6 inches in diameter, and she fell down the stairs, landing on her knees on the concrete sidewalk at the bottom.

She was helped to her feet by her sister and two friends. She looked back at the steps to see where she slipped and she could see the patch of ice, although she had not been able to see it when she started to come down the stairs. She went to work the next day, and tried to continue working the next week, but the pain from her knee injuries prevented her from continuing. She eventually had to have surgery on one knee and has not been able to return to work.

Defendant Marion Liss stated that the primary illumination for the main entrance to the tavern was from the Hamm’s Beer sign, although the street light also provided light for the front of the tavern. Defendant said he usually closed up, that he always insisted that the patrons leave by 2 a.m. and that he turned out the beer sign after the patrons had left. He indicated that he was required by law to close by 2 a.m., and if the sign were left on after 2 a.m., the police and public would think the tavern was still open. He stated that as a safety precaution, he always left the beer sign on until all the patrons had gone down the stairs. He also said that plaintiff does not drink, and that she usually came to the tavern just for conversation, and that she was served “straight orange juice.” The defendant also stated he was not present and did not close the tavern on the night in question. Defendant recalled that it had snowed during the day of January 11, that he had shoveled the steps about 6 or 7 p.m., that after he removed the snow he noticed a thin layer of ice under the snow, and that he removed the ice as best he could by putting on calcimite to dissolve the ice.

Plaintiff argues upon appeal that there were two questions of fact presented by the pleadings and depositions that required this cause to proceed to trial: (1) whether there was an unnatural accumulation of ice on the step where plaintiff slipped, and (2) whether defendant breached his duty to illuminate the stairway to warn his invitees of the existence of ice.

Under the law of Illinois, a property owner is not liable for injury incurred by a business invitee in a fall on an icy sidewalk maintained by the property owner for the use of its customers where the condition is a natural one and not caused or aggravated by the owner, and there must be some affirmative showing by the plaintiff that the snow or ice was an unnatural accumulation or that the owner aggravated a natural condition before the owner will be liable. (Byrne v. Catholic Bishop (1971), 131 Ill. App. 2d 356, 266 N.E.2d 708.) Here there is no affirmative showing that the ice was anything other than a natural accumulation under the snow. Hence, there was no question of fact for the jury as to whether the ice was of natural or unnatural origin.

Plaintiff next contends that the defendant breached the duty to provide illumination of the steps at the entrance to a place of business by not providing reasonable warning of a known hazardous condition to business invitees. In Cooley v. Makse (1964), 46 Ill. App. 2d 25, 196 N.E.2d 396, the plaintiff was injured when he fell over some loose bricks in a brick walk leading from the steps at the front door of a tavern to the city sidewalk. The court recognized that the operators of a tavern have a duty to provide invitees with a safe means of ingress and egress and held that this duty required proper illumination of the area or otherwise adequate warning to invitees of a known dangerous condition. The court concluded, “Whether their failure to do so is the conduct of reasonably prudent persons is characteristically a question of fact for the jury ***.” 46 Ill. App. 2d 25, 32, 196 N.E.2d 396, 399.

Defendant argues that this case is controlled by the holding in Newcomm v. Jul (1971), 133 Ill. App. 2d 918, 273 N.E.2d 699, where the majority of this court held that a restaurant operator was under no duty to warn by way of illumination against hazards which were the result of natural accumulations of ice and snow on the sidewalk between the front door and the parking lot. That case was decided upon the premises that a business owner is not liable for injuries caused by natural accumulations of ice or snow, and therefore the owner is not required to warn of the presence of natural accumulations of ice or snow. But Newcomm involved a level sidewalk, not a stairway, as a means of ingress and egress, and thus lighting in the area was not as necessary to customer safety as it is in the case at bar. We interpret Newcomm as recognizing that natural accumulations of ice do not impose liability upon business operators, but we believe the decision does not relieve commercial enterprises of their primary legal duty to provide a safe means of ingress and egress to their business invitees. (See, e.g., Newcomm (Alloy, J., dissenting) (allegations of failure to illuminate or insufficient lighting surrounding commercial enterprises raise questions of fact from which jury must decide whether negligence can be found).) A stairway which is concealed or difficult to adequately see or which is in a dangerous condition has recently been held to present a question for the jury as to whether the defendant restaurant had breached its duty to give proper warning of hidden dangers to its invitees. (Allgauer v. Le Bastille, Inc. (1981), 101 Ill. App. 3d 978, 428 N.E.2d 1146.) We believe the same is true in the case at bar.

Defendant’s duty to provide a reasonably safe means of ingress and egress from his place of business for the use of his patrons is not abrogated by the presence of an accumulation of ice or snow which is natural. In the circumstances of this case the businessman still must provide adequate lighting for a stairway. It is not disputed that the primary means of illuminating the entrance stairway was a Hamm’s Beer sign which had been turned off before plaintiff left the premises. It had been snowing earlier in the day, and defendant had observed and attempted to remove ice from the stairs. Plaintiff slipped and fell on a patch of ice on the steps which she could not see in the dark at the top of the stairs. We believe that these facts are sufficient to present a triable issue of fact for the jury as to the adequacy of the lighting. The jury also may well consider whether plaintiff’s late departure (after 2 a.m.) was condoned by defendant. We, therefore, reverse the judgment entered in the trial court, and remand this cause for further proceedings.

Reversed and remanded.

STOUDER and HEIPLE, JJ., concur.


author: JUSTICE ALLOY PRESIDING JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LAURA EXLINE, Defendant-Appellee.
    Third District
    No. 81 — 465
    Opinion filed August 31, 1982.

      BARRY, P. J., dissenting.
    Edward E 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.
    Gerald G. Kielian, of Gray, Kleczek & Kielian, P. C., of Joliet, for appel-lee.
   JUSTICE ALLOY

delivered the opinion of the court:

The State appeals from an order of the trial court suppressing evidence that narcotics agents seized pursuant to a search warrant. The trial court ruled the warrant was not supported by probable cause.

On October 10, 1980, the trial court issued a search warrant to search the apartment of Jeff Smith. The defendant, Laura Exline, lived in the apartment with Smith. An agent of the Metropolitan Area Narcotics Squad stated in his complaint in support of the warrant that he met with a confidential informant within the previous 10 days. This informant told the agent he could purchase cannabis from Jeff Smith. The agent searched the informant, found no drugs or money, and gave him prerecorded funds with which to purchase cannabis from Smith. The agent drove the informant to the apartment building that Smith resided in. The agent described this building as a three-story multifamily apartment complex.

On arrival, the informant went into the building entrance. Once past the entrance, the agent could not see the informant. The informant came out of the building a short time later and told the agent that he could purchase cannabis. When the agent told the informant to make the purchase, he returned to the building. When the informant emerged from the building again, he returned to the agent’s auto and gave him the substance he purchased. The agent searched the informant again and found no money or drugs. The agent’s field test on the substance indicated it was cannabis.

The agent and the informant repeated this procedure a few days later with identical results. Within five days prior to the complaint, the informant made another controlled purchase under the agent’s supervision. On the third occasion, the informant offered to purchase cannabis and made the purchase without returning to the agent’s car in the interim. In all other respects the circumstances of the three purchases were substantially identical. The informant told the agent he saw other quantities of cannabis in Smith’s apartment. The agent checked the Joliet telephone directory to confirm the address and apartment number that the informant stated Smith lived in.

A trial court issued a search warrant to search Smith’s apartment for cannabis, hashish, drug paraphernalia and proof of residency. The agents executed the search warrant and found cannabis, weapons and proof of the defendant’s residency at that apartment. The State has now charged the defendant with possession of cannabis with intent to deliver, possession of a controlled substance and unlawful use of weapons.

The trial court granted the defendant’s motion to suppress evidence seized pursuant to the search warrant. The court based its ruling on People v. Clark (1981), 95 Ill. App. 3d 496, 420 N.E.2d 259, and also stated that there was no evidence demonstrating the reliability of the informant. The State now appeals this ruling.

Under Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, the State can use hearsay statements of confidential informants to establish probable cause if the magistrate is informed of the basis of the informant’s knowledge as well as evidence of the informant’s credibility. The State must satisfy both parts of the Aguilar test. The first part of the test is not in issue. The informant is speaking from personal knowledge and observation. This court must determine whether the State satisfied the second part — often called the “veracity prong” — of that test.

The issue here is whether the complaint for a search warrant adequately demonstrates to the trial court that the informer is a reliable or credible person. Credibility can be demonstrated in several ways: The past performance of the informer may indicate he is credible. (McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056, rehearing denied (1967), 386 U.S. 1042, 18 L. Ed. 2d 616, 87 S. Ct. 1474.) In the case at bar, there are no allegations concerning the informant’s past performance. The State can show credibility by examining statements of the informer that are against his penal interest. (United States v. Harris (1971), 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075.) No such statements exist in the instant case. An unusually detailed report of criminal activities may prove the reliability of an informant. (People v. Derry (1979), 73 Ill. App. 3d 721, 392 N.E.2d 301.) There is no extraordinary detail in this case. The State argues, however, that the informant’s credibility is adequately demonstrated by the agent’s close supervision of the informant’s controlled purchases of cannabis.

The State asserts the credibility of the informant based on the surveillance of him during the controlled purchases. Such close supervision creates a high probability of truth. The State concedes, as it must, the informant was unsupervised once he left the view of the officers and entered an apartment building with an unknown number of apartments. This was the critical time period. The informant said that he went to the Smith apartment, saw cannabis in the Smith apartment and purchased cannabis from Smith. The agents saw nothing once the informant entered the apartment building. The court has only the word of the informant that he saw and did those things that he later reported to the agents. If this statement is to support a finding of probable cause, the court must be informed of evidence which demonstrates the probable veracity of the informant.

We agree with the trial court that this crucial evidence is completely missing in this case. As the trial court alluded to in its ruling, the informant could have obtained the cannabis from any place in the building and then named Smith as the source and Smith’s apartment as the location. He can repeat this procedure as often as he wants, but that does not lend his charges any additional credibility. Furthermore, the fact that Smith is listed in the telephone, directory at the apartment in question only corroborates an innocent fact readily obtainable from a hallway directory or mailbox. It does not make the informer’s statements any more credible. The State failed to establish the credibility of the informant, thus failing to satisfy the Aguilar test.

The State cites two courts that have ruled, under analogous fact situations, that the police department’s close surveillance of an informant during a controlled purchase provides the requisite indicia of credibility. (State v. Barrett (1974), 132 Vt. 369, 320 A.2d 621; State v. Gamage (Me. 1975), 340 A.2d 1.) The doctrine the State urges in the instant case would frustrate the purposes of the fourth and fourteenth amendments. The assessment of the informant’s credibility would be left to the law enforcement agent. Those amendments, however, command such determinations to be made by a neutral magistrate. Aguilar v. Texas (1964), 378 U.S. 108, 114-15, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.

The ruling of the circuit court of Will County is affirmed and the cause is remanded.

Affirmed and remanded.

STOUDER, J., concurs.

PRESIDING JUSTICE BARRY,

dissenting:

The question on this motion to suppress is whether the complaint for search warrant sets forth sufficient facts to show probable cause for issuance of the warrant. The Supreme Court of Illinois has discussed “probable cause” as follows:

“Probable cause means simply that the facts and circumstances within the knowledge of the affiant, and of which he had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution to believe that the law was being violated and that evidence of it was in the premises or vehicle or on the person to be searched. [Citations.] There need not be a showing of guilt beyond a reasonable doubt in order to establish probable cause.” People v. Francisco (1970), 44 Ill. 2d 373, 376, 255 N.E.2d 413, 415.

The trial court in this case suppressed the evidence obtained by the police on the mistaken assumption that People v. Clark (1981), 95 Ill. App. 3d 496, 420 N.E.2d 259, required such a ruling. The affidavit in Clark failed to state whether the informant was ever observed entering the premises at the address where the defendant had an apartment. That was the fatal defect in the Clark case. Here, the informant was observed entering the premises not once, but three times. The informant was searched every time immediately before entering and immediately after exiting the premises. Each time the affiant observed the informant walk directly into the apartment building entrance which led to Jeff Smith’s (and defendant’s) apartment on the first floor. Furthermore, the informant’s veracity was corroborated by the fact that the address and apartment number he provided for Jeff Smith were listed in the city directory. Whether he obtained that number from a directory in the lobby or from the door of the apartment is of no consequence. I believe the affidavit is a sufficient demonstration of the informant’s reliability to satisfy the “veracity prong” of the Aguilar test. See Aguilar v. Texas (1964), 378 U.S. 108,12 L.Ed. 2d 723, 84 S. Ct. 1509.

Although the majority brushes aside two decisions of other States which upheld search warrants where the police officers did not observe the informant enter the precise apartment or hotel room reported to be that of defendant, I find them to be most persuasive. In State v. Gamage (Me. 1975), 340 A.2d 1, 16, where the informant went to defendant’s hotel room, the court stated:

“We think that where an informer works in tandem with a law officer, the law officer continually coaching and observing the informer, the reports of the informer may be deemed credible even where certain material aspects of the informer’s activities are without the officer’s personal knowledge or observation. We think the law officer’s physical proximity and active participation in the informant’s intrigue is sufficient corroboration at least to provide, in part, a factual basis for the magistrate’s conclusion that the informant is credible or his information reliable.”

The Supreme Court of Vermont in State v. Barrett (1974), 132 Vt. 369, 320 A.2d 621, upheld a search warrant based upon facts almost identical to those in the instant case. The informant purchased LSD under a police-controlled procedure like the one utilized here, but he was not observed after he entered the apartment building. The court concluded that the procedure used by the police reduced reliance upon the credibility of the informer to a minimum. The court said, “The magistrate had enough facts to support a finding of probable cause, and had them in a form which rendered extended evaluation of the informant’s credibility unnecessary,” 132 Vt. 369, 374, 320 A.2d 621 625.

I fear the decision handed down by the majority will greatly increase the burden upon police officers in those cases where the supplier of illicit drugs operates out of an apartment or hotel room. The United States Supreme Court after observing that affidavits for search warrants must be tested by courts “in a commonsense and realistic fashion,” went on to state, “A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” (United States v. Ventresca (1965), 380 U.S. 102, 107-08, 13 L. Ed. 2d 684, 688, 85 S. Ct. 741, 746.) I believe the majority here has failed to test the agent’s affidavit with common sense and realism, and instead is imposing a technical specificity which is improper and unnecessary. I would reverse the ruling of the trial court and permit the introduction of the evidence seized pursuant to the search warrant.