author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL K. CHURCH, Defendant-Appellant.
    Fourth District
    No. 16751
    Opinion filed December 4, 1981.

      Gary M. Neville, of Gomien, Maschine & Neville, Ltd., of Dwight, for appellant.
    C. David Vogel, State’s Attorney, of Pontiac (Robert J. Biderman and Larry Wechter, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

The defendant, Michael Church, was charged in a 41-count indictment with the murder of Randall May. The cause was tried before a jury simultaneously with the trial of his codefendant, Billy Joe Coffelt, for which a second jury was present in the same courtoom. Church’s jury returned verdicts of guilty on all counts, but judgment was entered only on count I, murder (111. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)), and count XXXIV, armed violence (111. Rev. Stat. 1979, ch. 38, par. 33A — 2).

The defendant was sentenced to 40 years’ imprisonment for murder and 40 years’ imprisonment for armed violence, the sentences to be served concurrently. After defendant’s motion for a new trial was denied, this appeal of the conviction and the sentences followed. Although we are chary about some of the procedures in this trial,, and do not encourage their use, we affirm.

Since the defendant raises evidentiary and factual issues, a review of the facts, as elicited through testimony and evidence, is required.

On August 6,1979, police, responding to calls of shots being fired in a neighborhood, found the decedent, Randall May, lying on the backporch of the house next to what was later learned to be his residence. He was taken, by ambulance, to a hospital, where he died before he could name his assailants for the police.

Police investigators retraced May’s bloody footprints to his apartment; as they did, several pieces of evidence (including a belt, a piece of teeshirt covered with blood, and a beer bottle) were found. Upon entering the house, police officers went into an apartment in which the television was on full volume. The police went into a livingroombedroom area of the apartment and found it to be in disarray with blood spattered about. They also found a broken beer bottle and a flashlight lying on the floor in pieces.

As a result of conversations with defendant’s babysitter, Hazel Agne, warrants were obtained for the arrest of the defendant as well as that of his codefendant. Subsequently both were arrested. Defendant’s two brothers were also arrested. Several items of evidence were obtained as a result of Coffelt’s arrest which linked him to the crime. Defendant was arrested on August 10, 1979, on charges of aiding an escape and concealing and aiding a fugitive in connection with defendant’s brother’s and Coffelt’s escape from a Tennessee prison. The defendant was advised of his Miranda rights at the time of his arrest and also while enroute to the squad car.

The public defender was appointed to represent the defendant. On August 11, 1979, Detective Arnold of the Pontiac Police Department spoke with the public defender by telephone indicating that he wished to speak with the defendant about a murder. The attorney instructed the detective to wait over the weekend until the following Monday.

Detective Arnold made no attempt to speak to defendant but was advised on the day after his conversation with the attorney that the defendant wished to speak to him. The defendant, his brother, in custody as a fugitive, Detective Arnold and Special Agent Lindsey met in an office at the Livingston County jail. Again defendant was advised of his Miranda rights. He stated he understood them and read and signed a waiver form.

Defendant was advised that he had an attorney and was specifically asked if he wanted him called. Defendant replied, “No. I want to give a statement.” At no time, however, was defendant apprised of the detective’s conversation with his attorney or his instructions that the police not question the defendant.

Church then started to give a verbal account, but the detectives stopped him. They gave him pen and paper and left him alone to write his statement.

In his statement defendant related that he had been invited to a picnic by Carol May, the victim’s estranged wife, several days before the murder. Carol had indicated to him that she wanted to talk to him about Randall May, with whom the defendant was acquainted. During the picnic with Carol and some of her friends a discussion occurred about May’s parents’ attempts to take Carol’s child away from her. All present expressed the wish that Randall May die. Carol wanted to collect life insurance proceeds with which she could go to Washington to attend college. The defendant was also told that Randall May had accused him of being a homosexual.

Later in the afternoon, after going to Carol’s friends’ apartment, more discussion about Randall May’s insurance followed. Carol and her friends talked about what they could do with the money. The defendant related that he told them he knew someone who could make Randall’s death appear to be an accident.

Defendant went on to state that he then returned home and then to work. Later, he received a call from Randall May inviting him to his apartment. After leaving work Church picked up Coffelt and asked him if he wanted to meet Randall May. Coffelt said he did, so the two drove to May’s apartment.

After some conversation at May’s apartment Coffelt kicked May in the face, pulled a gun and threatened to kill him. Defendant related that Coffelt took May’s motorcycle key from him while defendant looked on from a chair. Defendant then stood up and kicked May once. Coffelt then severely beat May in a brutal and degrading way.

Coffelt then ordered May to put his hands behind his back and told Church to tie them with May’s belt. Coffelt, Church stated, devised a plan to burn May in his car. Coffelt then started downstairs with May following, and the defendant behind him holding the belt.

May bolted at the door and defendant began to run to his car. He heard several shots and soon thereafter Coffelt entered the car. They drove to defendant’s trailer, where the defendant told his brother what had transpired. The defendant went into the bathroom and washed blood from his hands. At that point the defendant asked his babysitter to lie about the time he had arrived home. He also told her that Coffelt had killed someone and explained about the insurance money. Defendant stated that he did not know that these events were going to occur, but merely intended to introduce Coffelt to May.

Coffelt also gave a statement, but his statement implicated the defendant as the perpetrator of the crime.

A suppression hearing was held at which defendant contended that his statement did not follow a voluntary, intelligent, and knowing waiver of his fifth amendment rights. In denying the motion to suppress, the trial court held that the defendant had initiated the conversation with the police which resulted in his statement. The court noted that the defendant had been admonished of his right to remain silent several times, had remained silent, but had later changed his mind.

The defendants then moved to consolidate their trials. The State objected to consolidation, citing problems which would arise under Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. Defense counsel suggested that the court could deal with the statements either by a ruling on admissibility or a limiting instruction. The court granted consolidation.

The consolidated cases came on for trial and Coffelt moved to exclude the defendant’s statement under the Bruton rule. The State then moved for reconsideration of the consolidation order. Defense counsel argued that he had prepared his case with an eye to the Bruton rule, although in this court he argues that this was not a prime consideration in his objection to severance. He also argued the likelihood that either defendant could be prejudiced if separate trials were ordered and one testified against the other.

The State then suggested a joint trial before two juries. The defense made a weak objection to this procedure and renewed the argument that severance would be prejudicial. However, defense counsel did indicate a preference to a two-jury trial over severance. Although the court expressed reservations, the judge agreed to the procedure because a second judge could not be found so that the cases could be heard separately but simultaneously. The trial court also agreed to the procedure for the reason that the defendants’ statements could not be excised of the inculpating portions and remain meaningful.

The procedure which was agreed to, and followed, was that two juries would be chosen and seated in the same courtroom. When evidence was inadmissible as to one defendant, his jury would be removed from the courtroom and the evidence would be admitted for the other jury’s consideration. The final arguments were also to be made only to the appropriate jury.

After the juries were selected, the trial court instructed them as to the procedure which would be followed. The defendants and their respective counsel were identified to the juries. The trial then proceeded with some minimal shuffling of juries.

The evidence at trial included Agne’s testimony that defendant had admitted, several times, taking part in May’s killing.

Carol May testified as to her marital difficulties with the decedent and her conversations with the defendant. During her testimony, before the Church jury only, she failed to recall statements she had made to defendant, which he had related in his statement, and to which she had testified at a grand jury hearing. The State requested that she be declared a court’s, or a hostile, witness, referring to the previous testimony in which her memory was more complete. Initially, the court denied the State’s request, but after she displayed further lapses in memory, the court reversed itself and declared her a hostile or a court’s witness. The court did not clarify on the record on which characterization it was relying. Mrs. May then affirmed her grand jury testimony, which essentially corroborated the defendant’s version of the picnic and the attendant conversations.

On appeal, defendant raises numerous issues. Of those, three are of primary concern to us and we will address them first.

The defendant first contends that the trial court erred in refusing to suppress his statements. He argues that he did not make an effective waiver of his right to remain silent or his right to counsel. Further, defendant argues that he was denied effective assistance of counsel because his statement was not made in the presence of counsel. Conversely, the People contend that the defendant knowingly waived his rights. Moreover, it is argued that since the defendant initiated the conversation, there was no interrogation. The import of this argument is that without interrogation no question of waiver arises.

Notwithstanding the latter of the State’s contentions, we hold that the defendant made an effective waiver of his right to remain silent and his right to have counsel present.

We first turn to defendant’s waiver of his right to have counsel present. Once counsel has been appointed, after indictment, an accused’s statements made in the absence of counsel may not be used against him without his consent. (Massiah v. United States (1964), 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199.) However, this does not mean, as defendant contends, that an accused may not waive substantive constitutional rights without the knowledge or consent of counsel. Massiah is not an absolute mandate barring all statements made by an accused outside the presence of counsel. People v. Field (1973), 13 Ill. App. 3d 74, 299 N.E.2d 754.

There is no per se rule that once counsel is obtained, notice must be given him and his consent secured before the police may procure a written statement from his client. (United States v. Springer (7th Cir. 1972), 460 F.2d 1344.) The right to counsel is a personal one inhering in the accused and not the attorney; that retained counsel is not notified of his client’s choice to forego assistance does not invalidate an otherwise valid waiver. People v. Aldridge (1980), 79 Ill. 2d 87, 402 N.E.2d 176.

This does not mean that the mere existence of a statement given by an accused in the absence of counsel will always be admissible against him. Once counsel is appointed, the State has the burden of showing a voluntary waiver. (Massiah.) This is a heavy burden which requires a showing by affirmative evidence that the defendant has waived his constitutional rights. Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232.

The standard to be applied, which is a matter of Federal law, is that the State must prove an intentional relinquishment or abandonment of a known right or privilege. (Brewer.) This leads to the ineluctable conclusion that the knowledge the accused must have is of the existence of the right and not the invocation of it by his attorney. Thus, although in the instant case the defendant was not informed of his attorney’s strategic decision that he not be questioned by the police, it is clear that he was aware of his right to have counsel present.

The inquiry does not end there, however. The right to counsel does not depend upon a request by the accused and the courts must indulge every reasonable presumption against waiver. Waiver of counsel requires not only a comprehension of the right but its relinquishment. (Brewer.) To relinquish the right, an express, formalistic waiver is not required. Any clear manifestation of a desire to waive is sufficient. (People v. Bundy (1979), 79 Ill. App. 3d 127, 398 N.E.2d 345.) The test for establishing this manifestation is that there must be a showing of intent to waive judged by the surrounding circumstances. Bundy.

In the circumstances of the case at bar there is a clear manifestation of the intent to relinquish the right of which we have already determined the defendant was cognizant. The defendant was told counsel had been appointed. When asked if he wished counsel to be contacted, his reply was an emphatic negative. Although the defendant was not told of his attorney’s instructions to the police, we cannot say that the defendant did not give up his right to have counsel present. Even where the accused has himself elected to speak through counsel, he is not powerless to countermand his election. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) We cannot accept the proposition that an accused must thus be rendered powerless to countermand the election when made by his attorney. It would be an absurdity to allow an accused to speak freely in one situation but not the other.

More important in determining the intent of the defendant are the circumstances under which he made his election. Here, he initiated the conversation in an apparent attempt to exculpate his younger brother who had been arrested with Coffelt but who had not been involved in the murder. Moreover, the defendant himself had been admonished of his rights several times, and it is clear from the record that he understood them. The testimony at trial, together with the tone of the defendant’s own written statement, reveal that the defendant wished to make clear to the police the limited nature of his involvement. He came forth and made his statement after refusing an offer to have counsel present. We can hardly imagine a set of circumstances more indicative of an intent to relinquish the right to have counsel present.

Although we do not approve of the police procedures utilized here, we do not find them constitutionally defective. We do not believe, contrary to defendant’s testimony at the suppression hearing, that his decision would have been different had he known of counsel’s instructions to the police.

We also fail to find any constitutional infirmity in the defendant’s waiver of his right to remain silent. There is no public policy requiring the police to affirmatively prevent or deter individuals from confessing that they have engaged in unlawful conduct. (United States v. Drummond (2d Cir. 1965), 354 F.2d 132 (en banc), cert. denied (1966), 384 U.S. 1013, 16 L. Ed. 2d 1031, 86 S. Ct. 1968.) Thus, there was no requirement when the defendant sought to give his statement that the police stop him from so doing. The clear admonishments given to defendant, his statement that he understood those rights, and his reading and signing of the waiver forms are indicative of knowledge of the right to remain silent and must be viewed, at least, as raising the presumption of a valid waiver. (Compare United States v. Springer (7th Cir. 1972), 460 F.2d 1344.) Defendant’s words and his act of writing out his statement are sufficient evidence of an intent to relinquish a known right.

We would note in passing, although we do not rest our decision upon it, the State’s contention that the waiver issue is not presented since there was no interrogation. The presence of interrogation, or its functional equivalent, focuses upon the perceptions of the suspect rather than the intent of the police. Arguably, Detective Arnold’s lack of candor constitutes an action which he knew, or reasonably should have known, was likely to elicit an incriminating response, thus constituting interrogation. (Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682.) However, interrogation must reflect a measure of compulsion above and beyond that inherent in custody itself. (Innis.) We do not believe that the actions of the police in the case at bar rise to the level of such compulsion. Moreover, it cannot be said that the actions of the police created a perception of interrogation in the defendant. However, even assuming, arguendo, that interrogation or its functional equivalent can be found, the right to counsel and to remain silent were adequately waived.

We now turn to the next major issue: whether the trial of the two consolidated cases simultaneously before two juries in the same courtroom denied defendant due process of law and is not authorized by statute. Defendant is in the difficult position of having created this issue by insisting upon consolidation in an effort to rely on Bruton and avoid prejudice which might have resulted from being tried after Coffelt. Yet he argues that he agreed to this procedure only as the least objectionable alternative.

While we agree that the defendant was faced with a dilemma, the same can be said of the State. More importantly, we recognize the dilemma faced by the trial court. Although we do not find the court’s solution particularly attractive, we do not find it to be constitutionally defective.

The rule in Bruton is that in a joint trial where a codefendant does not testify the confrontation clause prohibits the introduction of his statement if it inculpates the other defendant since to do so would deny the right to cross-examine. This rule decidedly would favor the defendants in the instant case where both gave statements inculpating one another.

However, Bruton also held that the prosecution ought not be denied the benefit of a confession to prove the confessor’s guilt if alternative ways may be found of achieving that benefit which do not infringe on the nonconfessor’s right to confrontation. Thus, the mere fact that the two-jury procedure was adopted to avoid the impact of Bruton does not defeat its use. United States v. Sidman (9th Cir. 1972), 470 F.2d 1158.

Defendant’s contention that there is no statutory authority for the two-jury joint trial is without merit. Section 115 — 4 of the Code of Criminal Procedure of 1963 contains no direct prohibition. (Ill. Rev. Stat. 1979, ch. 38, par. 115—4.) Moreover, we believe statutory authority for this procedure does exist.

Section 114 — 8 of the Code of Criminal Procedure of 1963 provides in pertinent part:

“If it appears that a defendant or the State is prejudiced by a joinder of related prosecutions or defendants * * * the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 114—8.)

This language is similar to that relied on by the Supreme Court of New Jersey in State v. Corsi (1981), 86 N.J. 172, 430 A.2d 210, in which that court approved a similar procedure.

It is not necessary, however, to look beyond our own jurisdiction to find approval of the two-jury joint trial. The supreme court has held that a joint trial with one defendant being tried by the court and the second by a jury did not deprive a defendant of due process. People v. Pulaski (1958), 15 Ill. 2d 291, 155 N.E.2d 29.

Moreover, where a defendant is given every opportunity to present a complete defense before one jury, cannot point to any event which confused the jury or affected its ability to render a decision fairly, and the record shows that the trial judge adequately prepared the jurors for the procedure, the two-jury trial is acceptable. Absent a showing of prejudice, the reviewing court should not speculate as to any impropriety in the procedure. People v. Smith (1981), 94 Ill. App. 3d 969, 419 N.E.2d 404.

We find nothing in the instant case which indicates that defendant was prejudiced. Although he does point to one instance of confusion over an objection, it seemed to be more with counsel than with the court. This would no doubt have arisen whether there were one or two juries. Thus, the defendant has failed to establish prejudice.

The Federal Courts of Appeal have also approved the procedure. Although not giving it a blanket endorsement, the ninth circuit held that the procedure was not a constitutional violation. (United States v. Sidman (9th Cir. 1972), 470 F.2d 1158.) The procedure is seen as a form of partial severance under the Federal Rules of Criminal Procedure. (United States v. Rowan (6th Cir. 1975), 518 F.2d 685; Sidman.) Finally, where there is no confusion which is so pervasive as to render the trial unfair, even though moments of confusion appear in the record, the two-jury procedure has been endorsed. (United States v. Rimar (6th Cir. 1977), 558 F.2d 1271.) We hold that this form of partial severance is, at least implicitly, approved by section 114—8.

We now turn to the defendant’s third major allegation of error. Defendant contends that the trial court erred in declaring Carol May a court’s, or a hostile, witness when she expressed an inability to remember her grand jury testimony. While we agree that confusion existed, we find no error.

A review of the transcript reveals that the trial court ruled the witness to be hostile pursuant to Supreme Court Rule 238 (73 Ill. 2d R. 238) and called her as a witness of the court. Although the distinction between a court’s witness and a hostile witness is a fine one, they are distinct.

A proper foundation must be laid in order for a witness to be called as a court’s witness. A party desiring the witness must state affirmatively the reasons why he cannot vouch for the witness. There must also be a shewing that the testimony will relate to direct issues in the case. Finally, there must be a showing that the testimony is necessary to prevent a miscarriage of justice. The purpose of the procedure is to avoid a miscarriage of justice which may result without the testimony. People v. Moriarity (1966), 33 Ill. 2d 606, 213 N.E.2d 516.

A court’s witness may not be impeached by a prior inconsistent statement. Such impeachment goes only to the collateral issue of credibility, which violates the requirement that the examination relate only to direct issues. People v. Chitwood (1976), 36 Ill. App. 3d 1017, 344 N.E.2d 611.

However, where a party is surprised by the testimony of an occurrence witness, he may be called as a hostile witness. Rule 238 allows impeachment by inconsistent statement once the witness has been declared hostile. (People v. Mager (1976), 35 Ill. App. 3d 306, 341 N.E.2d 389.) This, together with the foundation requirement, delineates the distinction between the two categories.

The proper course for the trial court would have been to call Mrs. May as a court’s witness. She was not an occurrence witness, nor was her testimony surprising. The State had made an affirmative showing, by virtue of the grand jury testimony, that it could not vouch for her; this also satisfied the direct issue requirement. Since a sudden lack of memory will work a miscarriage of justice, the proper foundation has been laid. (Compare People v. Morse (1975), 33 Ill. App. 3d 384, 342 N.E.2d 307.) The use of the grand jury transcript is then refreshed recollection rather than impeachment since the witness testified merely that she could not recall.

While criticizing the court’s method, we will not disturb its ruling on the admissibility of her testimony. Where a trial court’s admission of evidence is proper on some ground, it will not be disturbed even though the court gave the wrong reasons. People v. Romero (1975), 31 Ill. App. 3d 704, 334 N.E.2d 305, aff'd (1977), 66 Ill. 2d 325, 362 N.E.2d 288.

Defendant next contends that he was not proved guilty beyond a reasonable doubt because Agne’s testimony of his admissions was effectively impeached and the other evidence merely established his presence at the scene of the crime. Thus, defendant argues that he was not proved guilty on an accountability theory.

A reviewing court must examine the evidence on appeal and, if it is found to be so improbable or unsatisfactory as to raise serious doubts about defendant’s guilt, reverse the conviction. (People v. Lindsey (1979), 73 Ill. App. 3d 436, 392 N.E.2d 278.) We do not agree that this conviction must be reversed.

Agne’s testimony was not effectively impeached. Although some minor inconsistencies in her testimony were elicited, they were not so contradictory with defendant’s statements as to make her testimony improbable or unsatisfactory. Moreover, the contradictions did not dilute the evidence to palpable incredibility and improbability thereby raising a reasonable doubt as in Lindsey. The only major contradiction in this case is between the statements given by the defendant and Coffelt, and it should be remembered that Coffelt’s statement was not placed before the jury.

We also hold that defendant’s conviction on an accountability theory is adequately supported by the evidence. Section 5 — 2 of the Criminal Code of 1961 reads in pertinent part:

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

Defendant contends that mere presence coupled with flight will not satisfy the requirements of section 5 — 2. While this is undoubtedly correct (People v. Lopez (1979), 72 Ill. App. 3d 713, 391 N.E.2d 105), more is present in the instant case. Here the defendant’s actions amounted to more than mere presence and rose to the level of active participation. The statute requires only some additional act before or during the crime and several acts during the crime are present here. Section 5 — 2 means that where one aids another in the planning or commission of an offense, he is legally accountable for the conduct of the person he aids. Conduct encompasses any criminal act done in furtherance of the planned or intended act. (People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29.) Therefore, it is irrelevant whether defendant knew before going to May’s apartment that Coffelt was to kill him. Once there, and aware of Coffelt’s illegal acts, his acts in furtherance were enough to render him legally accountable under section 5 — 2.

Finally, we turn to defendant’s contention that his concurrent sentences were excessive because the murder sentence was for the maximum term and the armed violence sentence for an extended term. A joint sentencing hearing was held for Church and Coffelt. Defendant argues that in sentencing him to the same sentence received by Coffelt, who did the shooting and had a worse criminal record, the trial court abused its discretion. The contention of error is that the trial court failed to account for these differences.

The standard of review of sentences claimed to be excessive is whether, in fact, the trial court exercised its discretion and, if so, whether this discretion was abused. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

In the instant case the trial court noted the weak provocation which preceded the crime as well as the defendant’s prior criminality. Moreover, the court felt that it was not likely that the defendant would comply with probation. The court also felt that the crime had been motivated by profit and that the small amount, $500, indicated a wantonness on the defendant’s part. The court felt that a prison sentence was necessary to deter others from committing the crimes of murder and armed violence and that defendant’s action, coupled with the evidence at trial, indicated that the crime had been committed in a cruel nature.

In sentencing the defendant to concurrent 40-year terms for murder and armed violence, the trial court did not indicate whether these terms were imposed pursuant to section 5 — 8—1 or section 5- — 8—2, or both, of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, pars. 1005—8—1, 1005-8—2).

Armed violence is a Class X felony (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 3(a)), and the maximum term under section 5 — 8—1 for a Class X felony is 30 years. Thus it can only be assumed that the sentence of 40 years was imposed pursuant to section 5 — 8—2 as an extended term sentence. Such a term may not be imposed unless the factors in aggravation set out in section 5 — 5—3.2 are considered. (111. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2.) A review of the transcript indicates that these factors were considered by the trial court and therefore an extended term does not violate the statutorily authorized sentences.

A 40-year term for murder could fall under either section 5 — 8—1 or section 5 — 8—2. Section 5 — 8—1(a)(1) allows a sentence of not less than 20 and not more than 40 years for murder. Section 5 — 8—2(a)(1) allows an extended term of not less than 40 years and not more than 80 years for murder. Again, the factors in aggravation of section 5 — 5—3.2 were considered by the trial judge, thus permitting an extended-term sentence. On the other hand, the judge had the statutory authority to sentence merely for the maximum term of murder.

It is apparent from the record that the trial court exercised its discretion in sentencing both defendants. There appears nothing in the record which would indicate an abuse of discretion which would allow this court to reverse the trial court’s sentence.

Affirmed.

GREEN, P. J., and LONDRIGAN, J„ concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
      In re L. H., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. L. H., Respondent-Appellant.)
    Fourth District
    No. 17184
    Opinion filed December 10, 1981.
    Rehearing denied January 8, 1982.
    Daniel D. Yuhas and Gary S. Rapaport, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Debra K. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

The General Assembly has said that in delinquency proceedings there are to be two hearings — one adjudicatory, one dispositional.

Not one hearing. Two hearings.

And the Juvenile Court Act spells out the legislative intent with pristine clarity.

Now to the case at our bench.

Petitions were filed alleging that respondent was a delinquent minor in that he had committed nine residential burglaries. On March 26,1981, respondent appeared in court and stipulated to three of the nine counts, with the State agreeing to drop the remaining charges. Judge Steigmann asked what agreement the parties had reached:

“[PROSECUTOR]: Your Honor, we’d like to get a presentence report done by the Champaign County Probation Department in this matter and continue the cause as is convenient with the Court.
THE COURT: Okay. Mr. Hooker [defense counsel], is that your understanding?
MR. HOOKER: It is, Your Honor. The only agreement is to dismiss the remaining counts.”

The court accepted the parties’ agreement, found that respondent had committed three burglaries and dismissed the other six counts. The court made no further findings but directed the Champaign County Probation Department to prepare a report on respondent.

On April 30, 1981, a hearing was held at which Judge Steigmann stated that he had read and considered the report from the probation department. At this hearing, Nancy Stevens, director of the Learning Community in Champaign, testified concerning respondent’s participation in that program, and respondent himself testified regarding his desire to graduate from high school and get full-time employment. At the close of the hearing, Judge Steigmann entered a finding that it was in the best interests of respondent and the public that he be adjudicated a delinquent and made a ward of the court. He then explained why he thought probation would be an inappropriate disposition and ordered respondent committed to the Department of Corrections.

Legislative Intent

Even a cursory examination of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, pars. 701 — 1 to 708 — 4) reveals that the procedure contemplated by the Act was flagrantly violated in this case. A court is first to hold an adjudicatory hearing, wherein it considers only whether the respondent is a delinquent. (Ill. Rev. Stat. 1979, ch. 37, par. 704—6.) After that hearing, the court is to make its determination whether respondent is a delinquent. (Ill. Rev. Stat. 1979, ch. 37, par. 704—8(1).) Upon finding him a delinquent, the court should determine whether the minor’s and the public’s best interests require that he be made a ward of the court. If the court so finds, then it “shall adjudge him a ward of the court and proceed at an appropriate time to a dispositional hearing.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 37, par. 704—8(2). See also Ill. Rev. Stat. 1979, ch. 37, par. 705—1(1).

Thus, it is abundantly clear that the Act contemplates holding two separate hearings — adjudicatory and dispositional — and that the dispositional hearing is to be held only after the adjudications of delinquency and wardship have been made. In re Prough (1978), 61 Ill. App. 3d 227, 376 N.E.2d 1078; People v. Brady (1972), 7 Ill. App. 3d 404, 287 N.E.2d 537.

In the case at bar, the court continued the adjudicatory hearing and then held a hybrid hearing, not contemplated by the Act, after which it made decisions as to both adjudication and disposition. Besides the fact that such a procedure flouted the clear mandates of the Act, it created possibilities of evidentiary problems. At an adjudicatory hearing, the usual rules of evidence in criminal proceedings apply. (Ill. Rev. Stat. 1979, ch. 37, par. 704—6.) But at a dispositional hearing, the court can consider all evidence helpful in determining the question of disposition, including evidence not competent for purposes of the adjudicatory hearing. (Ill. Rev. Stat. 1979, ch. 37, par. 705—1(1).) Thus, a combined hearing presents the probability that evidence will be presented which is incompetent for purposes of adjudication, though it would properly be considered in making a dispositional decision. People v. Brady (1972), 7 Ill. App. 3d 404, 287 N.E.2d 537.

Agreed Procedure

We disagree, however, with respondent’s contention that the procedural flaws below require a reversal. Of primary importance is the fact that his attorney not only failed to object to this procedure but, in fact, joined in the request to continue the decision on adjudication until the time of the dispositional hearing. We can only presume that he took this position upon the hope that further evidence would come to light that would avoid an adjudication of delinquency, which was virtually assured once the trial judge found that respondent had committed three residential burglaries. Such evidence, of course, did not come forth. However, respondent cannot have it both ways by now arguing that the procedure which he and the State requested was prejudicial to him.

This court has recently been confronted with a number of cases involving the kind of unified hearing held in this case. We have held that where no objection has been made below, the trial court’s order following the hearing will be upheld “where there is no resulting prejudice.” (In re Prough (1978), 61 Ill. App. 3d 227, 231, 376 N.E.2d 1078, 1082.) Quite often, however, it is impossible to determine whether there has been prejudice, for the judge gives no indication whether his decision on adjudication rests to any extent upon evidence admissible only for purposes of disposition. Considerable judicial energy is therefore wasted because of trial courts’ failure to follow the clear dictates of the Juvenile Court Act.

Commitment

Defendant also argues that the trial court abused its discretion in committing him to the Department of Corrections. Section 5 — 10(1) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 705 — 10(1)) provides that a delinquent minor may be committed to the Department if the court finds (1) that his parents are unable, for other than financial reasons, to care for, protect, train, or discipline him, and (2) the minor’s and the public’s best interests will not be served by an alternate disposition. Respondent points out that this was the first delinquency proceeding ever instituted against him. In addition, he relies heavily upon testimony that he had shown no truancy problems in the four months prior to the hearing.

The State, on the other hand, emphasizes that in 1979 respondent was unable to conform to the terms of probation and that the probation office itself recommended commitment. In addition, it should be observed that the probation office’s report indicates that respondent was uncooperative with the office in making himself available for interviews to prepare the report. Considering all these factors, we cannot say that it was an abuse of discretion for the trial court to determine that respondent should be committed to the Department of Corrections. In re Stead (1978), 59 Ill. App. 3d 1012, 376 N.E.2d 689.

Affirmed.

GREEN, P. J., and LONDRIGAN, J„ concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD R. CART et al., Defendants-Appellants.
    Second District
    Nos. 80-390, 80-467 cons.
    Opinion filed December 2, 1981.

      Mary Robinson and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, and Jed H. Stone, of Waukegan, for appellants.
    Dennis P. Ryan, State’s Attorney, of Waukegan (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendants, Richard Cart and Michael Casamassina, were jointly tried by jury and convicted of conspiracy to commit murder; they were each thereafter sentenced to seven years imprisonment. We have consolidated their separate appeals for opinion.

Defendants each contend on appeal that: (1) the court should have severed their cases for trial; (2) his sixth amendment right to confront witnesses was abridged when each defendant’s statement inculpating the other was admitted in evidence; (3) they were denied a fair trial when the court failed to conduct a hearing to determine whether prejudice resulted when a juror was telephoned by a court bailiff; and (4) the State failed to prove their guilt beyond a reasonable doubt. Cart additionally contends his statements to police should have been suppressed on grounds he was arrested without probable cause and questioned before being given Miranda warnings, and, that his co-defendant’s admissions should have been excluded from evidence on grounds they were hearsay. Casamassina assigns as further error prejudicial closing argument by the State.

Defendants were indicted together with David Quinn and Ruth Cohn for conspiracy to murder Mrs. Cohn’s estranged husband, Stuart Cohn. The primary evidence introduced in trial against each defendant consisted of the admissions each made to investigating officers regarding the roles they had played directed toward the killing of Stuart Cohn at the request of his wife. Casamassina gave recorded statements to officers in which he related that Mrs. Cohn, with whom he had become acquainted while doing repair work on the Cohn home, told him she wanted her husband dead and asked whether he could arrange it. Casamassina informed her he could do so, and they discussed injecting Mr. Cohn with an animal euthanasia solution and also blowing up his car by pouring an iodine preparation into the battery of his car. In his statement Casamassina related that in these discussions she informed him of her willingness to pay almost anything to have her husband killed. Casamassina then called co-defendant Cart, who is his half-brother and then lived in Pennsylvania, with Mrs. Cohn present. He advised Cart that someone wanted a killing, Cart responded it would cost $5,000 plus expenses for plane fare for two people. The next day Mrs. Cohn gave Casamassina $5,300 in cash, $300 of which he sent to Cart for plane fare. Cart thereafter came to Highland Park, Illinois, with defendant David Quinn, and they stayed at Casamassina’s house. Most of the remaining $5,000 was given to Cart by Casamassina, who acquired a rifle with a scope, a handgun, knives and ammunition. The men also assembled material for use in a pipe bomb. On the evening of December 5, 1979, the three men went to the Cohn home, and Cart entered it while Casamassina and Quinn watched from the street. After Cart entered the house the other two became uneasy when they saw a police car and left the scene, returning home. Shortly thereafter Casamassina received a telephone call from Cart telling him to bring the gun to the Deerfield police station and he did so.

Cart’s recorded statements to police were also admitted in evidence. In them he stated he received telephone calls from his brother, Casamassina, who inquired whether he or anyone he knew would be interested in killing someone. Cart related that when he learned the price was $5,000 and expenses up front he became interested. Cart recruited David Quinn, offering him $300, and after receiving plane fare from Casamassina by Western Union the two men flew to Illinois. Casamassina gave Cart $4300 at the airport and he subsequently talked to Mrs. Cohn on the telephone and discussed possible methods of killing Mr. Cohn. Mrs. Cohn also agreed to pay any of his additional expenses incurred and stated to him she wished the death to look like an accident because of a double indemnity insurance policy. The men purchased a .25-caliber automatic pistol for $200, and Quinn furnished a rifle; Cart also purchased a CB radio and walkie-talkie. The men also demanded an additional $2500 which Mrs. Cohn agreed to pay. In his statements Cart related that he drove over to the Cohn home on the evening of December 5 with Casamassina and Quinn following in another automobile. Cart then had the pistol and the others had the rifle in their car and they used the walkie-talkies to keep in communication. In relating these matters to the police, Cart denied that he had any actual intent to murder Mr. Cohn but that his efforts which appeared to be so directed were intended only as a “scam” in order to get money from the Cohns. He also stated that neither Casamassina nor Quinn were aware of his real purpose and that he was simply leading them on.

Evidence was also introduced in trial that Mr. Cohn had received a telephone call on December 5 and the unidentified caller (Cart) said he had tapes of conversations with Mrs. Cohn for which Mr. Cohn would reward him. Mr. Cohn was interested as he believed the tapes were related to their pending divorce action, but he was also fearful because his wife had made an attack on his life the previous year. Mr. Cohn called the police and two officers were waiting inside the door when Cart arrived at 9 that evening. The armed officers identified themselves to Cart and frisked him, finding he carried no weapons. Cart identified himself by another name, which the officers could not verify, and they then inquired why he was at the Cohn home. Cart responded, at some length, that he knew of a plot to kill Mr. Cohn after overhearing a conversation and could locate the gun which was to be used and turn it over to the officers. Cart made a phone call, and Casamassina subsequently brought a pistol to the police station in a paper bag.

Cart accompanied the officers to the police station and both defendants were formally placed under arrest and advised of their Miranda rights, thereafter giving the statements to the officers to which we have referred. In a search of Casamassina’s house, to which he consented, the officers recovered a rifle, knives, iodine, syringes and an euthanasia solution. Casamassina cooperated with the officers and obtained an additional payment from Mrs. Cohn, who was then also arrested. The cases of Mrs. Cohn and Quinn were severed for trial, with each later entering a plea of guilty to the offense of conspiracy to commit murder. See People v. Cohn (1980), 91 Ill. App. 3d 209, 414 N.E.2d 543.

Neither defendant testified at trial. Cart presented no evidence, and Casamassina offered evidence that while in the county jail he had been given aspirin and thorazine daily. A psychiatric report of an examination of Casamassina was admitted in evidence which stated he was able to appreciate right from wrong but had an impairment of functional judgment.

I

We consider first defendants’ contentions that the court erred in denying their motions to sever their cases for trial.

In considering the decision of a trial court denying severance, a reviewing court will look only to the petitions filed by defendants and the matters alleged therein and not to the subsequent happenings at trial. (People v. Yonder (1969), 44 Ill. 2d 376, 386, 256 N.E.2d 321, 327, cert. denied sub nom. Guido v. Illinois (1970), 397 U.S. 975, 25 L. Ed. 2d 270, 90 S. Ct. 1094; People v. Brophy (1981), 96 Ill. App. 3d 936, 945, 422 N.E.2d 158,166.) While the written petitions filed by defendants do not appear in the record, it is apparent from the transcript of the hearing held on their motions that the trial court was apprised of the grounds upon which they were asserted, thus preserving them for appeal. People v. Powell (1981), 95 Ill. App. 3d 93, 98, 419 N.E.2d 708, 712; People v. Jones (1980), 81 Ill. App. 3d 724, 728, 401 N.E.2d 1325, 1328.

It is the general rule that jointly indicted co-defendants should be tried together unless circumstances exist requiring that their cases be severed to insure each defendant a fair trial. (E.g., People v. Lindsay (1952), 412 Ill. 472, 107 N.E.2d 614.) This rule has been particularly adhered to in conspiracy cases, absent a specific demonstration of the most compelling prejudice and a clear abuse of discretion by the trial court in denying a severance. (People v. Moore (1978), 65 Ill. App. 3d 712, 719, 382 N.E.2d 810, 816, cert. denied (1980), 444 U.S. 1043, 62 L. Ed. 2d 729, 100 S. Ct. 729.) In general, severance should be granted where the defendants make a specific showing they have truly conflicting and antagonistic defenses marked by opposition, hostility, antipathy or discord (People v. Lee (1981), 87 Ill. 2d 182, 188; People v. Davis (1976), 43 Ill. App. 3d 603, 610, 357 N.E.2d 96, 101-02, appeal denied (1977), 65 Ill. 2d 578); mere apprehensions that the defenses may prove conflicting are insufficient. (People v. Murphy (1981), 93 Ill. App. 3d 606, 609, 417 N.E.2d 759, 761; People v. Nickson (1978), 58 Ill. App. 3d 470, 482, 374 N.E.2d 804, 812.) However, when a motion for a separate trial is based on the fact that a co-defendant’s admissions implicate the moving defendant, a severance will ordinarily be granted unless the prosecutor declares that such admissions will not be offered in evidence at trial or that there will be eliminated therefrom all reference to the party seeking severance. People v. Miller (1968), 40 Ill. 2d 154, 158, 238 N.E.2d 407, 409, cert. denied (1968), 393 U.S. 961, 21 L. Ed. 2d 375, 89 S. Ct. 401; People v. Clark (1959), 17 Ill. 2d 486, 490, 162 N.E.2d 413, 416; People v. McVay (1981), 98 Ill. App. 3d 708, 715, 424 N.E.2d 922, 926-27.

In this case, however, neither defendant established at the hearing that his defense was antagonistic to that of his co-defendant. The record discloses that each defendant admitted doing the acts which formed the basis for the charge of conspiracy to commit murder but that each denied they acted with the requisite mental state, an intent that Mr. Cohn be murdered. The trial court was informed that Cart’s defense would be that he only intended to sell information rather than kill Mr. Cohn; Casamassina based his defense on the grounds that he lacked the required intent in light of his impaired functional judgment. Neither defendant blamed the other while completely denying his own complicity and under these circumstances the court did not err in determining their defenses were not antagonistic. See People v. Lee (1981), 87 Ill. 2d 182, 187; People v. Colon (1979), 69 Ill. App. 3d 1021, 387 N.E.2d 956.

Defendants also assert that the court erred in denying severance on the grounds that in their respective statements given to the police each defendant imputed to the other an intent to carry out the plan to murder Mr. Cohn. Cart had told the police that while he was personally only attempting to secure money from the Cohns that Casamassina was not aware of this fact and thought they were actually going through with the murder plot. In his statement, Casamassina commented that Cart was in big trouble and had planned to kill Mr. Cohn. At the hearing of the motion to sever, the State’s Attorney neither promised to withhold these statements from evidence nor to eliminate reference to the other defendant. The court was therefore in error in not granting the motions for severance when made. (See, e.g., People v. Clark (1959), 17 Ill. 2d 486, 162 N.E.2d 413.) Nevertheless, we must determine whether on this record that error requires a reversal for new trials.

In similar circumstances this court has analyzed a defendant’s situation in terms of the extent his own statement implicates himself and substantiates admissions of a co-defendant which would not have been in evidence had there not been a joint trial. (See People v. Colon (1979), 69 Ill. App. 3d 1021, 387 N.E.2d 956; People v. Moore (1978), 65 Ill. App. 3d 712, 382 N.E.2d 810, cert. denied (1980), 444 U.S. 1043, 62 L. Ed. 2d 729, 100 S. Ct. 729.) In Casamassina’s case, he admitted having agreed with Mrs. Cohn to arrange her husband’s murder and also to doing certain acts in furtherance of that plan. His statement both inculpated himself and substantiated Cart’s similar admissions. While Cart’s statement that Casamassina was not aware of Cart’s “scam” did impute to Casamassina an intent that the murder actually be committed, it is apparent that Casamassina’s criminal intent, an essential element of conspiracy, could also have been readily inferred from his own acts, admissions and the surrounding circumstances. (People v. Cohn (1934), 358 Ill. 326, 331, 193 N.E. 150, 153.) We conclude that the evidence of Casamassina’s complicity found in his own admissions and corroborating evidence was sufficient to sustain his conviction and the inclusion of that portion of Cart’s statement implicating Casamassina was harmless error beyond a reasonable doubt not requiring reversal.

In defendant Cart’s case the most damaging portion of Casamassina’s statement was not introduced at trial. Casamassina’s comment that Cart planned to kill Mr. Cohn was deleted when offered to the jury and was then consistent with Cart’s own version of the matter. We conclude that neither Casamassina nor Cart was denied a fair trial, under these circumstances, by the admission of the defendants’ corroborating statements in evidence. Cf. People v. Ross (1968), 41 Ill. 2d 445, 244 N.E.2d 608, cert. denied (1969), 395 U.S. 920, 23 L. Ed. 2d 237, 89 S. Ct. 1771; People v. Clark (1959), 17 Ill. 2d 486, 162 N.E.2d 413.

II

We consider next defendants’ related contentions that their sixth amendment right to confront witnesses was abridged when their co-defendants’ statements implicating them were admitted in evidence and neither defendant testified at trial.

In Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the court held that in a joint trial the admission of a co-defendant’s out-of-court statement implicating the accused is constitutionally impermissible where the co-defendant does not subject himself to cross-examination by testifying at trial, even if the court gives limiting instructions that the admission is to be considered by the jury only as against its maker. No violation of the Bruton principle occurs, however, when the defendant claiming the benefit of the rule has himself made a similar inculpatory admission which is also in evidence. (People v. Rosochacki (1969), 41 Ill. 2d 483, 493-94, 244 N.E.2d 136, 142; People v. Moore (1978), 65 Ill. App. 3d 712, 718, 382 N.E.2d 810, 815, cert. denied (1980), 444 U.S. 1043, 62 L. Ed. 2d 729, 100 S. Ct. 729.) The rationale of this distinction is that minimal prejudice inures to a defendant whose own statements are introduced along with those of a co-defendant as compared to one who has made no admissions and whose culpability is established mainly through his co-defendant’s statements. (See People v. Colon (1979), 69 Ill. App. 3d 1021, 1026, 387 N.E.2d 956, 960.) The underlying consideration is that the jury in a Bruton setting might consider a co-defendant’s admissions which implicate the defendant, but, where both defendant and a co-defendant make admissions, they will rely most heavily on the defendant’s own self-incriminating admissions rather than the less reliable, hearsay statements of the co-defendant. People v. Rosochacki (1969), 41 Ill. 2d 483, 494, 244 N.E.2d 136, 142; People v. Delk (1976), 36 Ill. App. 3d 1027, 1037, 345 N.E.2d 197, 205-06.

Cart and Casamassina each contend, however, that their statements were not substantially similar to the admissions made by their respective co-defendants. To the contrary, their respective statements set forth substantially the same conduct by each defendant in this matter. Defendants seek to draw a distinction asserting that their statements were not similar in regard to the essential element of intent that the murder be committed. We are not persuaded. In a conspiracy a defendant’s intent can be inferred by the jury from the circumstances of the action which defendants have undertaken. (People v. Cohn (1934), 358 Ill. 326, 331, 193 N.E. 150, 153.) In their respective statements each defendant admitted they agreed between themselves and with Mrs. Cohn to kill Mr. Cohn and then performed acts in furtherance of their plan. The jury could properly infer solely from each defendant’s admissions their respective intent to carry out that plan. Cf. People v. Delk (1976), 36 Ill. App. 3d 1027, 345 N.E.2d 197.

III

Defendant Cart also contends that Casamassina’s statements were inadmissible hearsay when they were introduced in evidence. The statements were not within the scope of the co-conspirator’s admission exception to the hearsay rule because they were made to police following arrest rather than in furtherance of the conspiracy. (See, e.g., People v. Simpson (1976), 39 Ill. App. 3d 318, 321, 349 N.E.2d 441, 443.) However, Casamassina’s statements were not introduced against Cart; the court advised the jury when admitting that evidence and also in its instructions that it was not to consider Casamassina’s admissions against Cart. His hearsay argument is therefore without merit.

IV

Defendant Cart next contends that the statements he gave to police at the Cohn residence and later at the police station should have been suppressed because they were elicited in violation of Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, and Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The State argues this issue is controlled by Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

We consider first those statements made by Cart at the Cohn residence before he had been advised of his Miranda rights. Prior to Cart’s arrival at Cohn’s residence, Mr. Cohn told the police officers of the anonymous phone calls he had received and of his fear that they involved an extortion attempt or threat on his life in light of his wife’s attack upon him the previous year. The officers were also made aware that the caller had inquired whether Mr. Cohn was alone. When Cart arrived at approximately the time scheduled for Cohn’s meeting with the unidentified caller the officers, reasonably enough, stopped him inside the door, identified themselves, frisked him and then asked Cart for his name and an explanation of why he was at the Cohn residence. In so doing the officers clearly acted in compliance with the standards set forth in Terry (see Ill. Rev. Stat. 1979, ch. 38, par. 107—14), under these circumstances. They had grounds to reasonably believe that someone may be coming to the Cohn home at that time to commit a criminal offense and the minimal preliminary inquiries made by the officers were permissible. See People v. Smithers (1980), 83 Ill. 2d 430, 415 N.E.2d 327.

Cart argues, however that the officers went impermissibly beyond the narrow scope permitted by Terry in the absence oí Miranda warnings. We do not agree. The officers merely asked a general investigative question, “why are you here?” and Cart spoke at length in narrative form of a plot to kill Mr. Cohn. The court in Miranda did not intend to impose restrictions on general on-the-scene investigative questioning. (See People v. Parks (1971), 48 Ill. 2d 232, 269 N.E.2d 484, cert. denied (1972), 404 U.S. 1020, 30 L. Ed. 2d 669, 92 S. Ct. 692; People v. Clark (1977), 55 Ill. App. 3d 496, 371 N.E.2d 33.) Nor are police required to interrupt a person who is in the process of volunteering a lengthy answer in order to give Miranda warnings. See In re Orr (1967), 38 Ill. 2d 417, 231 N.E.2d 424, cert. denied (1968), 391 U.S. 924, 20 L. Ed. 2d 663, 88 S. Ct. 1821; People v. Baer (1974), 19 Ill. App. 3d 346, 311 N.E.2d 418; see also People v. Pettit (1981), 97 Ill. App. 3d 692, 423 N.E.2d 513.

Cart also argues that when he was detained and questioned at the Cohn residence his fourth amendment right not to be seized without probable cause was violated. In Dunaway v. New York the Supreme Court held that custodial detention for questioning without probable cause to arrest violates the fourth amendment and requires suppression of statements made during interrogation unless there are attenuating circumstances which purge the taint of the illegal detention. In light of our holding that the initial stop, frisk and questioning of Cart were permissible under Terry, Cart must now contend that at some point his detention exceeded the length and scope of the limited stop sanctioned by Terry such that the probable cause requirement of Dunaway became applicable and that he was then subjected to custodial detention for purposes of interrogation.

In determining whether there is custodial detention sufficient to make applicable the Dunaway probable cause requirement, the courts look to all the surrounding circumstances to consider whether a reasonable person would have believed he was free to leave the scene. (People v. Miller (1980), 89 Ill. App. 3d 973, 978, 412 N.E.2d 175, 179-80.) Relevant circumstances may include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of Voice indicating that compliance with the officer’s request might be compelled” (United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877; People v. Creach (1980), 79 Ill. 2d 96, 101, 402 N.E.2d 228, 230, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564), and also whether the accused can be said to have voluntarily initiated the exchange with police or remained in their presence and assisted with their investigation. (See People v. Herron (1980), 89 Ill. App. 3d 1048, 412 N.E.2d 1365; State v. Morgan (1980), 299 N.C. 191, 261 S.E.2d 827, cert. denied (1980), 446 U.S. 986, 64 L. Ed. 2d 844, 100 S. Ct. 2971; Comment, Custodial “Seizures” and the Poison Tree Doctrine: Dunaway v. New York and its Aftermath, 13 J. Mar. L. Rev. 733, 736 (1980).) Defendant relies on testimony of the officers that he was in fact under arrest at the Cohn residence and not free to leave, although they did not so inform him. He also finds significant that the officers drew their weapons when he was admitted by Mr. Cohn to the residence and that they then frisked him. There is no indication in the record, however, that Cart was ever exposed to any coercive interrogation while at the Cohn residence; instead, he responded freely to the general questions of the officers as authorized by Terry.

Under these circumstances it seems apparent that Cart was not under custodial detention for interrogation and Dunaway is not controlling. The statement Cart seeks to suppress resulted from his response to the officers’ inquiry as to why he was at the Cohn residence. He told them then that if he could contact his girlfriend he could turn over to the police the weapon that was to be used to kill Mr. Cohn and also that if the officers and he went back to the police station he could verify his identification. By these statements it seems that Cart was voluntarily assisting the police in their investigation. While the officers did testify Cart was not free to leave, this fact was not communicated to defendant and cannot alone be sufficient to support a finding that a reasonable person in these circumstances would have thought that he was not free to leave, after the initial Terry stop and the officers put away their guns. See United States v. Mendenhall (1980), 446 U.S. 544, 554 n.6, 64 L. Ed. 2d 497, 509 n.6, 100 S. Ct. 1870, 1877 n.6; see also People v. Szerletich (1980), 86 Ill. App. 3d 1121, 1127, 408 N.E.2d 1098,1103.

We conclude that at the Cohn residence Cart was not restrained as that term has been defined in Illinois cases interpreting Dunaway. The officers had reasonable suspicion that Cart was involved in criminal activity and probable cause to believe he had information to assist them in their investigation. Accordingly we consider the following rationale persuasive:

“[P]olice officers may question citizens during criminal investigations. Citizens have a duty to cooperate with the police in these investigations. * * * * * * If a citizen is restrained the police must have the same probable cause for the restraint as they must have for an arrest. (Dunaway v. New York.) If a citizen is not restrained, no probable cause beyond a belief that he may assist in an investigation is required.” People v. Miller (1980), 89 Ill. App. 3d 973, 977-78, 412 N.E.2d 175, 179.

Cart’s further statements to the officers at the police station were also properly admitted in evidence. He was fully advised of his Miranda rights prior to this questioning and as those rights were not violated by an illegal seizure at the Cohn residence his later statements may not be considered as the fruits thereof.

V

Casamassina also assigns as error a portion of the State’s closing argument in light of a comment to the jury by the judge (which was immediately corrected) that the defendants would put on their case once the People had rested. This issue is raised for the first time on appeal and is waived; we consider it only to determine whether the allegedly improper remarks constituted a material factor in defendant’s conviction or were so flagrant as to threaten deterioration of the judicial process. (People v. Anderson (1981), 95 Ill. App. 3d 492, 494, 420 N.E.2d 830, 832.) The prosecutor argued “he doesn’t have a defense” and referred to the defense as a fabrication. Read in context these statements were directed solely at Cart, not Casamassina, and he was not prejudiced by them. The State did refer to Casamassina as an octopus, without defenses, shooting dye to muddy the water so he can escape and setting up a smokescreen to cover up the real evidence. These remarks do not constitute plain error on this record. See People v. Veal (1978), 58 Ill. App. 3d 938, 980, 374 N.E.2d 963, 994, cert. denied (1979), 441 U.S. 908, 60 L. Ed. 2d 378, 99 S. Ct. 2001; People v. Calahan (1976), 42 Ill. App. 3d 994, 1000, 356 N.E.2d 942, 947.

Defendant also contends the argument that there was nothing that was contradictory to the State’s case improperly called attention to the fact Casamassina did not testify at trial. References by the prosecution to a defendant’s failure to testify are prohibited (see Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229), but the State may comment upon the uncontradicted nature of the evidence, even if defendant is the only person able to contradict the State’s evidence, as long as the reference is not calculated to direct the jury’s attention to the defendant’s failure to testify. (People v. Hopkins (1972), 52 Ill. 2d 1, 6, 284 N.E.2d 283, 286.) We do not consider the prosecutor’s single reference unduly directed the jury’s attention to Casamassina’s failure to testify; rather, it permissibly pointed out there was no substantial evidence refuting the State’s case. (See People v. McTush (1978), 61 Ill. App. 3d 214, 219, 377 N.E.2d 1148, 1151.) Defendant’s citation of People v. Escobar (1979), 77 Ill. App. 3d 169, 395 N.E.2d 1028, as controlling is not persuasive; there the State argued the uncontradicted nature of their case six times rather than once as here. Also, in Escobar defendant called four witnesses who rebutted much of the State’s evidence, and the reference to uncontradicted evidence, therefore, placed the State in the position of directly referring to defendant’s own failure to take the stand.

VI

Defendants each contend they were prejudiced by a telephone communication by a court bailiff with one of the jurors during trial and were further denied a fair trial when the court failed to conduct a hearing in the presence of defendants to determine whether they were prejudiced by the incident.

Following discharge of the jury, a discussion took place in the presence of all counsel at which the trial judge related that at an earlier, unspecified time a juror had requested to see him in chambers and reported that the previous evening he had received a telephone call from the bailiff in charge of his jury. The caller was said to have been intoxicated and made inquiry of the juror as to what the outcome of the case had been; the juror responded only that the jury would be back in court the next morning. The juror thereafter repeated his account of the incident to the judge in the presence of two assistant State’s Attorneys and a court reporter. No verbatim transcript of either of the juror’s statements was made and only the trial judge’s recollection of the discussion, as disclosed to defense counsel after discharge of the jury, appears in the record.

When informed by the court of the communication, neither of defendants’ attorneys made any response on the record nor did they request that a hearing be conducted in the matter. Defendant Cart’s post-trial motion alleged he was entitled to a new trial on the basis of improper contacts with a juror. In oral argument on this motion reference also was made to a joint motion for a new trial made by the defendants, which we do not find in the record. Defendant Casamassina’s post-trial motion alleged the court had a duty to conduct an investigation into the occurrence on its own motion.

On appeal defendants contend they were prejudiced by the communication and by the court’s failure to hold a hearing at which they could have determined the extent the communication may have tainted the jury.

We have considered the trial judge’s account of the bailiff’s telephone call to the juror and conclude defendants have failed to establish they were prejudiced by the mere inquiry as to what the outcome of the case had been. It is difficult to imagine how this single question, without any showing it was coupled with an attempt to influence the juror’s decision, could deny defendants their right to an impartial jury. The law is well settled in Illinois that a jury verdict will not be set aside because of a communication with a juror by court personnel or other third persons outside the presence of the accused where it is apparent no prejudice resulted from the exchange. (People v. Berry (1960), 18 Ill. 2d 453, 459, 165 N.E.2d 257, 260, cert. denied (1960), 364 U.S. 846, 5 L. Ed. 2d 69, 81 S. Ct. 87; People v. Wurster (1980), 83 Ill. App. 3d 399, 410, 403 N.E.2d 1306, 1315.) While defendants argue they were inherently prejudiced because of the aura of importance attached to a court bailiff’s communication, citing Parker v. Gladden (1966), 385 U.S. 363, 17 L. Ed. 2d 420, 87 S. Ct. 468, that case did not alter the requirement that defendants must establish they were prejudiced by the communication. See People v. Rettig (1972), 50 Ill. 2d 317, 278 N.E.2d 781; People v. Buckhana (1981), 99 Ill. App. 3d 889, 425 N.E.2d 1297.

Defendants’ contention they were prejudiced by the court’s failure to hold a hearing to question the jurors and bailiff regarding this matter must be considered in light of the fact none was requested by either defendant. Counsel for Casamassina agreed in oral argument that no such request was made either at the time counsel were advised of the occurrence by the trial judge or in defendants’ post-trial motion. We would agree that the better practice would have been for the trial judge to have interviewed the juror in the presence of all counsel prior to discharge of the jury to give them an opportunity to make further inquiry if they wished to do so. (See Remmer v. United States (1954), 347 U.S. 227, 98 L. Ed. 654, 74 S. Ct. 450; People v. Weaver (1980), 90 Ill. App. 3d 299, 412 N.E.2d 1353.) If requested, such a hearing could still have been undertaken at the time defendants were advised of the occurrence by the trial judge, but they did not request it. As this court stated in People v. Trejo (1976), 40 Ill. App. 3d 503, 513, 352 N.E.2d 68, 76:

“A trial judge has ” 0 * discretion to determine whether there were improper influences upon the jury by the bailiff ° * *.
In this case, although better practice would have included an examination of the bailiff [and juror] by the trial judge in the presence of [all] counsel, we find that the trial judge did not abuse his discretion in refusing to order a hearing on the issue of jury contamination.”

VII

Defendants each finally contend that neither was proved guilty of conspiracy beyond a reasonable doubt.

Casamassina essentially argues that because Cart denied he agreed to murder Mr. Cohn, and conspiracy cannot be established without the existence of an agreement, that Casamassina’s conviction must be reversed. In this argument, however, he fails to consider his admitted agreement with Mrs. Cohn, another co-conspirator, that the murder be committed. Casamassina also argues his intent that Mr. Cohn be murdered was not established but again fails to take into account his admissions that he did so agree with Mrs. Cohn and Cart and did perform acts in furtherance of their plan. It is also true that intent may be inferred from the circumstances of the case.

Casamassina also asserts that the court erred in refusing to give the second paragraph of the circumstantial evidence instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.02 (1968)), that a defendant should not be found guilty unless the circumstances exclude .every reasonable hypothesis of innocence. This portion of that instruction will not be given, however, unless the evidence of guilt is entirely circumstantial. (People v. Craig (1979), 79 Ill. App. 3d 584, 588, 399 N.E.2d 168, 171; People v. Hines (1975), 28 Ill. App. 3d 976, 983, 329 N.E.2d 903, 908.) Defendant’s admissions, together with certain other evidence, constituted direct evidence of his guilt and the court accordingly did not err when it refused to so instruct. See People v. Sanchez (1979), 73 Ill. App. 3d 607, 392 N.E.2d 378.

Cart also contends that the State failed to prove that he intended to murder Mr. Cohn, pointing to the evidence of his repeated statements to police that he only intended to obtain money. We note again that a defendant’s intent may be inferred by the jury from all of the surrounding circumstances. Cart’s admissions and his acts in furtherance of the common design were sufficient to establish the conspiracy charge. (Cf. People v. Persinger (1977), 49 Ill. App. 3d 116, 363 N.E.2d 897, cert. denied (1978), 435 U.S. 917, 55 L. Ed. 2d 509, 98 S. Ct. 1474.) The jury could have found under the evidence that Cart agreed in his initial telephone conversation with Casamassina that Mr. Cohn should be killed and that they intended at that time to carry out the plan. It may well have appeared improbable to the jury that Cart at that early date was planning a “scam” of his co-conspirators and the Cohns as he knew nothing of the Cohns’ circumstances when he accepted Casamassina’s offer and came to Illinois for the agreed purpose. The jury may also have found it improbable that Cart was seeking to profit from selling information to Mr. Cohn when he asked David Quinn to join him in the plan and purchased the guns and other materials which would not be required had he never intended to carry out his stated purpose. We conclude on the record before us that the guilt of defendants Cart and Casamassina was established beyond all reasonable doubt.

Accordingly, the judgments of the circuit court of Lake County will be affirmed.

Judgments affirmed.

HOPE and LINDBERG, JJ., concur.


text:
    KAREN O’DELL, Adm’r of the Estate of Brian Scott Williams, Deceased, Plaintiff-Appellant, v. RANDY J. DOWD, Defendant-Appellee.
    Fourth District
    No. 17186
    Opinion filed December 1, 1981.

      Burger, Fombelle, Wheeler & Dvorak, P. C., of Decatur, for appellant.
    Erickson & Davis, Ltd., of Decatur (Garry E. Davis and Theodore E. Paine, of counsel), for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Can a nunc pro tunc order changing a final judgment be entered where there is no supporting data in the court record or file in the case?

No.

Nov. 13, 1978 — Following an automobile accident, defendant-driver was issued two traffic citations.

Feb. 5, 1979 — Defendant pleads guilty to driving too fast for conditions in cause No. 78-TR-5912.

Apr. 21, 1981 — the Feb. 5, 1979, order in No. 78-TR-5912 corrected nunc pro tunc to show charge of driving too fast for conditions dismissed.

Apr. 22, 1981 — Plaintiff precluded from using defendant’s Feb. 5, 1979, conviction at a jury trial.

Apr. 23,1981 — Jury verdict for defendant.

We reverse and remand for a new trial.

Nunc Pro Tunc Order

Plaintiff, Karen O’Dell, as administrator of the estate of her deceased son, Brian Scott Williams, filed a wrongful death suit charging defendant Randy Dowd with negligence. Plaintiff’s son, Brian, was killed while riding as a passenger in a truck driven by Dowd. Prior to trial, the court granted a motion in limine precluding plaintiff from introducing a certified copy of a conviction showing that on February 5, 1979, defendant pleaded guilty in cause No. 78-TR-5912 to driving too fast for conditions in connection with the incident in question.

On the day before trial in this cause, defendant obtained a nunc pro tunc order in the original traffic case, No. 78-TR-5912, purporting to correct a clerical error. According to the order entered nunc pro tunc, defendant pleaded guilty to driving while license suspended, but the charge of driving too fast for conditions was dismissed.

Plaintiff contends the trial court erred in precluding her use of a certified copy of the conviction showing that defendant pleaded guilty to driving too fast for conditions. She claims the trial court’s ruling was based upon a void order of the traffic court, which was entered without jurisdiction and is subject to collateral attack. It is undisputed that the court file in No. 78-TR-5912 had earlier been destroyed and did not exist when the nunc pro tunc order was entered. The basis for the nunc pro tunc order was the affidavits of defendant, defendant’s father, and the two attorneys who represented defendant in the No. 78-TR-5912 cause.

We are referred by plaintiff to People ex rel. Sweitzer v. City of Chicago (1936), 363 Ill. 409, 2 N.E.2d 330, where the court ruled a trial court was without jurisdiction to vacate a judgment after the passing of the term. That opinion states that a judgment may be amended after the term only as to matters of form and after notice to the opposite party. Such an amendment must be supported by some note, memorandum, or memorial paper remaining in the files or upon the record of the court and cannot rest upon the recollection of the judge or other persons and cannot be based upon ex parte affidavits or testimony. People ex rel. Sweitzer was followed in Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 215 N.E.2d 271, where an amended order — entered four months after the original order and not made from a memorandum — was held void. As the No. 78-TR-5912 nunc pro tunc order in question was entered over two years after the original order and is not supported by any memorandum in the court file, plaintiff requests this court hold the nunc pro tunc order void.

A nunc pro tunc order (“now for then”) is an entry in the present for something done in the past, made to make the record speak for what was actually done. (In re Estate of Bird (1951), 410 Ill. 390, 102 N.E.2d 329.) A court has inherent power to make an entry nunc pro tunc to correct its clerk’s records so that they correctly reflect the actual judgment of the court, when the judge has a definite and certain record as a basis for the amendment. (In re Estate of Young (1953), 414 Ill. 525, 112 N.E.2d 113.) The basis for an amendment may be founded upon anything in the record before the court from which certainty is assured (Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 399 N.E.2d 216) but cannot be based upon the recollection of the trial judge or other persons. People ex rel. Sweitzer v. City of Chicago (1936), 363 Ill. 409, 2 N.E.2d 330.

The order in question was entered over two years after the original order and is based only upon the recollection of defendant and other persons. Under such circumstances, the court in 78-TR-5912 had no power to enter the nunc pro tunc order, thereby rendering its entry void.

Defendant relies on Dauderman v. Dauderman (1970), 130 Ill. App. 2d 807, 263 N.E.2d 708, but that case is clearly distinguishable. In a divorce decree, defendant was ordered to pay $400 as alimony to enable plaintiff to live as nearly as possible in the manner in which defendant’s earnings and station in life entitled her. Two months later, the court amended the decree nunc pro tunc to read $400 per month as alimony. The appellate court found the omission clerical in nature and within the court’s inherent power to correct beyond the 30-day period. The requirement of a memorandum to assure certainty in the amendment was found to be satisfied since no other construction of the alimony provision was possible under the circumstances.

In this case, however, the original No. 78-TR-5912 order reveals no hint of irregularity. There is simply nothing to assure the correctness of the nunc pro tunc amendment and there is no basis for its entry. Even assuming the nunc pro tunc order is merely a clerical correction as defendant asserts, the court in No. 78-TR-5912 had no power to enter it.

An order entered by a court which lacks jurisdiction of the parties or the subject matter, or which lacks inherent power to enter the particular order, is void, and may be attacked at any time or in any court, either directly or collaterally, and by any person affected by that order. City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108, 357 N.E.2d 1154; Scheller v. Trustees of Schools (1978), 67 Ill. App. 3d 857, 384 N.E.2d 971.

The plaintiff in the appeal before us was precluded from utilizing the original order to establish a prima facie case of negligence against defendant, was directly affected by the void order in No. 78-TR-5912, and therefore has standing to attack it. The lower court’s ruling on defendant’s motion in limine was based upon a void order of the traffic court. Since plaintiff was prejudiced by the exclusion of this evidence, the verdict in defendant’s favor must be reversed and the cause remanded for a new trial.

Proof of conviction is admissible in a civil case as prima facie evidence but may also be explained and contradicted by defendant. (See Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335; Barnes v. Croston (1969), 108 Ill. App. 2d 182, 247 N.E.2d 1.) Upon retrial, plaintiff shall be entitled to present the defendant’s conviction of driving too fast for conditions for the jury’s consideration, and defendant shall be entitled to inform the jury of his position that the record of conviction is erroneous. The jury, as trier of fact, will then determine whether all the evidence presented proves defendant negligent.

Judgment N.O.V.

Evidence presented at trial shows that at approximately 7:30 a.m., on November 13, 1978, defendant Randy Dowd was driving south on Henderson Road in Macon County. The rear end of his truck skidded, crossed the road, traveled into and across a ditch, then into a wooden fence. After hitting the fence, the truck turned and came to rest on its side. A board, which entered the truck cab through the windshield, struck and killed Brian Williams, a passenger in defendant’s truck. Defendant was traveling 40 to 45 miles per hour, and the applicable speed limit was 55 miles per hour. Henderson Road is comprised of oil and rock, and there may have been gravel at the point where defendant’s truck began to skid. The pavement was wet. The incident was observed by Robert and Susan Hood, who were in their car traveling approximately 40 feet behind the defendant.

When the truck was towed to his residence later that morning, defendant’s father discovered a break in the center of the truck’s left rear tire. This tire was examined by defendant’s expert, Allan Siegel, who testified the tire had about 50% wear. In his opinion, the tire was punctured by a very sharp object, but the cut was not made by a nail or a board. The tire did not blow out, and there was no indication the tire had traveled in a deflated condition.

Plaintiff claims error in the trial court’s refusal to grant her judgment notwithstanding the verdict on the issue of defendant’s liability. Relying upon the rule set forth in Calvetti v. Seipp (1967), 37 Ill. 2d 596, 227 N.E.2d 758, plaintiff argues that defendant’s failure to explain that this accident was not the result of his negligence renders him negligent as a matter of law. In Calvetti, the defendant’s car skidded into the wrong lane and into the car in which plaintiff was riding. Defendant offered no explanation for cause of the skid, other than the presence of ice on the pavement. The court ruled the fact that defendant’s car skidded in front of plaintiff’s car must be deemed to have arisen from some negligent act or omission, in the absence of evidence to the contrary. And, it was not incumbent upon plaintiff to show what caused defendant’s car to skid or to prove other facts normally within the peculiar knowledge of defendant. Finding no reasonable basis for the jury verdict finding defendant free of negligence, the court reversed and remanded for a new trial on damages.

We agree the evidence that defendant lost control of his truck and left the roadway raises an inference that this accident resulted from defendant’s negligence and requires defendant to make a showing that something other than his negligence may have caused the accident. We disagree, however, that the explanation presented by defendant is insufficient as a matter of law. Although the fact that the defendant’s rear tire had been punctured at some time does not definitely establish the cause of this accident, it is certainly sufficient to create a jury question as to whether defendant was negligent. See Polkey v. Phillips (1980), 86 Ill. App. 3d 677, 408 N.E.2d 348.

We cannot say that all the evidence viewed in its aspect most favorable to defendant so overwhelmingly favors plaintiff that the verdict in favor of defendant cannot stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) The trial court’s denial of plaintiff’s motion for judgment n.o.v. on the issue of liability was proper.

Expert Testimony

Plaintiff also challenges the admission of Allan Siegel’s testimony, claiming he is not sufficiently qualified to testify as an expert in this cause. Siegel is the director of Industrial Testing Laboratories in St. Louis, Missouri, which is a commercial organization involved in material testing and evaluation. Siegel is a registered engineer, belongs to numerous professional organizations, and has evaluated between 200 and 300 tires to determine a cause of failure. Clearly, the trial court did not abuse its discretion in finding Siegel sufficiently qualified to testify as an expert in this trial. Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 349 N.E.2d 578.

It is further claimed by plaintiff that Siegel’s testimony was speculative since there is no evidence of an object on the roadway that could have caused the puncture in the rear left tire and caused the defendant’s loss of control of the truck. As we have already found, however, this evidence is sufficient to allow the jury to draw the inference that something other than defendant’s negligence caused the accident in question and was properly admitted.

The judgment in favor of defendant is reversed and remanded for a new trial in accordance with the views expressed herein.

Reversed and remanded.

GREEN, P. J., and LONDRIGAN, J., concur.