author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN TROLIA, Defendant-Appellant.
    First District (5th Division)
    No. 80-2322
    Opinion filed June 11, 1982.
    Rehearing denied July 21, 1982.

      James J. Doherty, Public Defender, of Chicago (Matthew J. Beemsterboer and Richard S. Schiffrin, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and David A. Shapiro, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

This is defendant’s second appeal from a murder conviction for which he received 25 to 75 years’ imprisonment. In the first appeal, People v. Trolla (1979), 69 Ill. App. 3d 439, 388 N.E.2d 35, we reversed and remanded for a new trial finding that the State failed to disclose a material, potentially exculpatory statement by defense witness, Rebecca Lavin, which was in police possession during the trial. In this appeal, defendant presents these issues for review: (1) the trial court’s denial of his pre-trial motions deprived him of a fair trial; (2) he was not proven guilty beyond a reasonable doubt; (3) the trial court’s refusal to grant a continuance was an abuse of discretion; (4) the trial judge’s failure to recuse himself or to grant a motion for substitution of judges for cause was reversible error; (5) it was reversible error for the court to deny defense motion In limine barring the prosecution from impeaching Rebecca Lavin with her 1980 conviction; (6) his right to effective cross-examination was unduly restricted; (7) it was error to admit his prior testimony from the first trial as a judicial admission and then to allow impeachment on a collateral matter; (8) he was not allowed to call certain witnesses; (9) the failure to give a tendered instruction by defense was prejudicial error; (10) it was error to restrict defense counsel’s closing argument to one hour; and (11) the prosecutor’s closing argument was inflammatory and prejudicial. The pertinent facts follow.

State’s Case

Patrick Castellaneta testified that he was part owner of the Godfather Lounge where the deceased, Paula Popik, had been employed for approximately three months. On August 31, 1974, he worked at the lounge from 6 p.m. to 4 a.m. and Paula worked the front bar from 8 p.m. to approximately 4 a.m. She was wearing a black halter top and hot pants. She was paid in cash at 4 a.m. and he never saw her again, although she was scheduled to work the following day. Paula’s brother came in on September 3, looking for her.

Linda O’Neill testified that in August 1974 she worked at the On-The-Rocks Lounge. On August 31, 1974, she worked at the lounge from 10 p.m. to 5 a.m. the next day. She saw defendant at about 4:45 a.m. in the bar with a young lady who was wearing a black halter top and dark pants.

She arrived home from work at approximately 5:30 a.m. and was awakened by defendant knocking on the door at about 8:30 a.m. asking if he could stay. He went to the couch, and she went back to bed.

She saw Paula’s photo in a newspaper approximately two weeks later. She identified the photo as being a picture of the girl she saw with defendant. Police first contacted her in December 1974 about the Popik murder. She tried to protect defendant but later decided to tell the truth to assistant State’s Attorney Ficaro, with whom she had attended grammar school.

On cross-examination, Linda stated that when defendant arrived at the house she neither smelled gasoline on him or saw any bloodstains on his clothing. She did not see defendant and the girl in a group that night and did not see them leave. She also stated that Investigator Leubscher made threats to take her kids away and that she would do almost anything to protect her children.

Thomas P. O’Neill testified that he is the husband of Linda O’Neill. Defendant came to their house between 6 and 6:30 a.m. and asked if he could sleep there. Linda woke him up to ask if defendant could stay. Richard “Animal” Maskas also spent the night at the O’Neill household. After they all got up that morning, they went up north to buy some drugs.

O’Neill next saw defendant the following Tuesday. Bob Holwell was also there. Defendant told them that he shot a Mexican and a girl. O’Neill also thinks defendant said he threw the girl over a bridge and got rid of her car. Holwell asked defendant where he got the gun and he replied that he got it from “Animal” Maskas. O’Neill agreed to be defendant’s alibi.

On September 12, 1974, at the On-The-Rocks Lounge, O’Neill told defendant that he could not be his alibi. Defendant then confessed that there was no Mexican, just a girl. O’Neill was questioned by police on September 19, 1974, and told police defendant was not by his house on August 31. A few days later his wife noticed a picture in the paper of the slain girl who was with defendant.

On cross-examination, he testified that defendant did not state that he had burned Paula’s car. He also stated that Investigator Leubscher had threatened to charge him with conspiracy to commit murder. Further, he lost his job and implied that Leubscher’s frequent visits to question him might be the reason.

Robert Holwell testified that on September 1, 1974, defendant, the O’Neills and “Animal” Maskas were at his house. Defendant indicated at that time that he needed an alibi but he did not elaborate. On September 3, defendant told him and Tom O’Neill that he had killed a Mexican and a girl and had dumped their bodies in the river, burned a car, and walked to the O’Neills’. Defendant indicated that he had gotten the gun from “Animal” and returned it.

On September 11, 1974, Holwell saw his brother, a police sergeant, who stated that a girl’s body had surfaced and asked him what he knew. He told his brother that there had been a dope ripoff and two people had been killed and had been thrown in the river. He told his brother to get in touch with “Animal” for more information. When he met O’Neill and defendant at the On-The-Rocks Lounge the next day, he told defendant he could not provide an alibi.

Holwell admitted that he had lied to the police to protect himself. He also believed that telling his brother about “Animal” and the gun would lead to defendant.

Michael Corbett, police chief of Willow Springs, Illinois, testified that he and Sergeant Steve Scarno recovered Paula’s body from the Des Plaines River on September 6,1974. Her body was unclothed except for a black halter top around her neck and two black high heel shoes on her feet. He also observed a tattoo on the lower right abdomen. He indicated that when he put a rope around the arms of the body, they were limp.

William Dado, an evidence technician, testified that in observing the body, it showed signs of bloating in the face and abdominal region, discoloration throughout the torso and extremities of the body, and skin slippage throughout the entire body. He also noticed a puncture-type wound to the right temple area at the hairline, a laceration of the right cheek area, the bridge of the nose and on the upper lip. He did not notice any rigor mortis.

David Brundage is a firearms examiner for the Illinois Department of Law Enforcement. He examined certain bullets removed from the body of decedent and concluded that they could have been fired from the gun introduced into evidence, but there were insufficient individual characteristics.

Dr. Joseph Claparols, a pathologist, testified that he conducted an autopsy on Paula and completed a protocol. An examination of her body revealed the palms of her hands and the soles of her feet were wrinkled and white from immersion in water. The skin of her body showed desquamation caused by blistering and peeling of the superficial layers of the skin. There was a reddening of her external genitalia. He did not record any bloating of the skin in the neck area. He observed lacerations on the face, on the bridge of the nose, right cheek and left upper lip. He also saw a fracture of the nose. Those injuries could be pre-mortem but most of the bloating is post-mortem. There was a pink staining of the inner lining of the heart, caused by breakdown of hemoglobin. This stain was postmortem. It was his opinion that the cause of death was a bullet wound to the head, with laceration of the brain.

On cross-examination, he stated that he did not actually weigh or measure the body and that his protocol indicated minimal rigidity of the lower extremities.

Sworn testimony of defendant was then read to the jury from the May 10, 1976, trial. That testimony indicated that defendant went to a wrestling match on August 31, 1974. He denied he knew Paula or that he saw her in the tavern. He also denied having borrowed the gun from “Animal.”

Leo Breen, Chicago White Sox treasurer, testified that business records of the White Sox indicated that a baseball game took place the night of August 31, 1974. A wrestling match was held at Comiskey Park on September 7, 1974.

Defense Case

Dr. Cedric Keith Simpson, a pathologist and professor of forensic pathology, testified that in his opinion it was impossible for Paula to have been killed on September 1. He estimated that she died" between September 3 and 4 after reviewing various materials concerning the decedent, including a factual summary, the protocol and numerous photographs.

Dr. Simpson noted that the protocol stated “external examination shows minimal rigidity of the lower extremities,” the cause of which is rigor mortis which begins in the face and gradually works its way down the body. It passes the same way with the entire process generally taking between 30 and 36 hours. He also stated that her eyes looked quite white in the photographs he examined, and had she been in the water 5-6 days, they would have looked almost purple. Further, he noticed that the degree of decomposition was slight, as evidenced by the early stages of marbling, the lack of discoloration in the flanks, and the lack of distension of the abdomen.

On cross-examination, he testified that he did not observe bloating in the region of the face but rather swelling due to pre-mortem injuries. He also stated that he had not previously seen a live photograph but that he didn’t need to in order to know that her body did not look bloated.

Rebuttal

Dr. Russell Fisher, chief medical examiner of Maryland and professor of forensic pathology, testified in rebuttal that he agreed with Dado’s observation that when the body was recovered rigor mortis had passed. According to Fisher, the signs of decomposition included advanced softening of the surface of the body, swelling and bloating of the face and neck, discoloration of the skin, the falling apart of the brain, and in particular the brain stem being torn off, all of which was consistent with the decedent having died on September 1.

Surrebuttal

Dr. Robert Stein, chief medical examiner of Cook County, testified that based upon his examination of the photographs and protocol, the body had been dead for 2 to 3 days when it was found. Stein did not find putrefaction of the brain, pancreas, liver or stomach. He also did not find any bloating and noted that the black eye he observed was a pre-mortem injury.

On cross-examination, Stein stated he was given some written reports and some verbal ones from defense attorneys and he was not shown a live picture of decedent. He did not see the toxicology report and he was not shown Dr. Claparol’s testimony.

Opinion

I

Defendant first contends that the trial court’s denial of his pretrial motions violated his constitutional rights. He argues that his motion for discharge on the grounds of double jeopardy by virtue of prosecutorial overreaching should have been granted. He supports this charge by alleging that the prosecution (1) concealed Rebecca Lavin’s statement that she had seen Paula alive on September 3 until after the first trial was over, (2) suborned perjury, particularly from three key State witnesses, and (3) practiced a deception in presenting and arguing the medical testimony at trial.

The double jeopardy clause provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” When a court has acquitted a defendant of the offense charged, this principle is controlling. (Arizona v. Washington (1978), 434 U.S. 497, 54 L. Ed. 2d 717, 98 S. Ct. 824.) However, reprosecution for the same offense is permitted where defendant wins a reversal on appeal of a conviction. The determination to allow reprosecution upon reversal “reflects the judgment that the defendant’s double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decisionmaking resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error. * ° For the crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal.” (United States v. Jorn (1971), 400 U.S. 470, 484, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 556-57.) By statute in Illinois, reprosecution is allowed “if subequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction.” (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(d)(2).) This provision is in accord with judicial decisions. People v. Benson (1962), 24 Ill. 2d 159, 180 N.E.2d 482; People v. Keagle (1955), 7 Ill. 2d 408, 131 N.E.2d 74.

Defendant’s allegations of prosecutorial overreaching is not supported in the record before us. The Lavin statement which defendant did not possess at the first trial was available at his second trial; thus it appeared to be a matter of trial strategy that Lavin was not utilized as a witness at the second trial. Likewise, the suborned perjury allegation is not supported in the record before us. Furthermore, testimony concerning the time of decedent’s death was elicited from a number of witnesses, both lay and medical, and not necessarily an example of prosecutorial overreaching for failing to ask the pathologist the time of decedent’s death. In any event, defense did have the opportunity on cross-examination to elicit this information.

We believe the double jeopardy clause is inapplicable as support for this motion and thus it was properly denied and reprosecution properly allowed.

Defendant also asserts that his motion for discharge by reason of the denial of the right to a speedy trial ought to have been granted. The sequence of dates enumerated by defendant to support this charge are:

The mandates were finally issued to the trial court on October 29, 1979. Defendant believes that the over 5 years’ delay from the indictment resulted from prosecutorial overreaching and was further compounded because in the second trial, the court ruled that Lavin’s 1980 conviction for embezzlement could be used by the prosecution for impeachment. Thus, he asserts he suffered substantial actual prejudice as a result of the delay caused by the prosecution.

The period of time during which a convicted accused pursues an appeal which results in a new trial has no bearing on whether he received a speedy trial under both the United States and Illinois constitutions. People v. Knippenberg (1979), 70 Ill. App. 3d 496, 388 N.E.2d 806.

Thus, defendant’s pursuit of his constitutional right to appeal effectively tolled the speedy trial statute. Moreover, the State is entitled to pursue its petition for leave to appeal the reversal of defendant’s conviction (Ill. Rev. Stat. 1979, ch. 110A, par. 315(a)); and the period during which an appeal by the State is pending is not counted for the purpose of determining whether an accused is entitled to discharge under the speedy trial statute (Ill. Rev. Stat. 1979, ch. 110A, par. 604(a)(4)).

Under the cited authority, there is no basis to support the denial of the speedy trial motion. Further, after the issuance of the mandate the matter was continued by agreement to allow the prosecution time to re-investigate the case and the defense to file pretrial motions. As such, defendant’s acquiescence in these continuances tolled the statute. (People v. Kuczynski (1965), 33 Ill. 2d 412, 211 N.E.2d 687; People v. Bivins (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044; Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5.) Further, defendant has failed to establish any prejudice to him because of his allegations of delay. He asserts that Lavin’s 1980 conviction for embezzlement could be used by the prosecution for impeachment. However, since he did not call Lavin as a witness in his second trial, the prejudice he asserts is illusory as opposed to actual and substantial. Thus, this motion was also properly denied.

Defendant next contends that his motion for appointment of a special prosecutor should have been granted. The basis of defendant’s motion is that “possibly favorable evidence may have been intentionally withheld, perjured testimony may have knowingly been used, perjured testimony may have been suborned at the original trial and that such conduct may have continued since then.”

The appointment of a special prosecutor involves the exercise of judicial discretion in the determination of whether a contingency authorizing the exercise of such power has arisen. (Armentrout v. Dondanville (1979), 67 Ill. App. 3d 1021, 385 N.E.2d 829; Ill. Rev. Stat. 1979, ch. 14, par. 6.) Upon the record, we cannot say that the court abused its discretion in the denial of the petition. Defendant’s allegations are speculative and find no support in the record.

Further, it appears that the statute which defendant relies on is only applicable in two instances: (1) where the State’s Attorney is interested as a private individual; and (2) where the State’s Attorney is an actual party to the action. (Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 372 N.E.2d 50.) Since neither of these situations in the instant case is applicable, this motion was properly denied.

Concomitantly, defendant states that his motions for discharge and for the appointment of a special prosecutor should not have been denied without an evidentiary hearing. It appears that memorandum in support of these motions was presented to the trial court for its consideration and the court heard arguments from both sides on these motions before denying them. We must surmise that the trial court’s rulings on these motions were informed and there was no further necessity for more detailed hearings.

II

Defendant contends that he was not proven guilty beyond a reasonable doubt. He attacks the credibility and weight afforded the testimony of three prosecution witnesses. He asserts they were all close associates and suggests they may have fabricated their testimony. He also attempts to undermine and discredit the State’s medical testimony.

The determination of a jury will not be set aside unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. (People v. Tate (1976), 63 Ill. 2d 105, 345 N.E.2d 480; People v. Triplett (1981), 99 Ill. App. 3d 1077, 425 N.E.2d 1236.) Further, it is for the trier of fact to determine the credibility of witnesses and the weight to be given their testimony, and where the evidence is conflicting a court of review will not substitute its judgment for that of the trier of fact. People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733; People v. Tribett (1981), 98 Ill. App. 3d 663, 424 N.E.2d 688.

In summary, the State’s evidence disclosed that Paula disappeared on September 1,1974, wearing a black halter top and hot pants. She was seen leaving the On-The-Rocks Lounge with defendant on this date. Defendant confessed to O’Néill and Holwell that he had killed a Mexican guy and a girl and had thrown their bodies into the Des Plaines River and burned their car. He borrowed the gun used in the murders from “Animal” Maskas. He later denied that he had killed a Mexican guy but did admit to killing a girl. Medical testimony corroborated the time of death as being September 1, 1974.

Defendant’s evidence that Paula was alive after September 1, 1974, was the defense medical experts’ testimony that Paula had been dead less than three days when her body was discovered. Defendant’s other “evidence” that Paula was alive after September 1, 1974, would have been the Lavin statement that she saw Paula alive on September 3, 1974, at the Godfather Lounge where they both worked. However, defendant elected not to call Lavin as a witness at his second trial even though the nondisclosure of her statement at the first trial formed the basis for the remandment of this matter for a new trial. 69 Ill. App. 3d 439, 449-50.

In light of the established legal principles enunciated above, the jury could well have determined that defendant was guilty of decedent’s murder. We cannot require the jury to search out various potential explanations compatible with innocence and raise them to the status of reasonable doubt. (People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209.) The jury as the trier of fact was free to reject defendant’s evidence and determine that the State’s evidence was credible. We have carefully reviewed the record in this case and find that the evidence is sufficient to sustain defendant’s conviction beyond a reasonable doubt.

III

The third issue defendant raises is that the trial court’s refusal to grant a continuance was an abuse of discretion. Defendant filed and argued three motions on May 2, 1980, which were denied. The court then set the case for trial on June 9, 1980. After the transcript of the May 2 hearing became available, defendant filed a motion for leave to file a petition for an original writ of mandamus which was denied on June 6, 1980. Thereafter, on the day of trial, defense counsel’s associates asked for a two-week continuance. The trial court continued the matter until the next morning. The next day, defense counsel Doherty came in and asked the court for a continuance, explaining that he was pursuing Federal remedies and the motions for discharge had occupied a great deal of time over the previous months as such that he had not completed preparations for trial.

The constitutional right to counsel incorporates the right to counsel with adequate time to prepare. (People v. Massarella (1979), 80 Ill. App. 3d 552, 400 N.E.2d 436.) However, the granting of a continuance rests in the sound discretion of the trial court. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 4(e).) A trial court’s refusal to grant a motion for a continuance will not be disturbed on review absent a showing of a clear abuse of discretion. (People v. Hayes (1972), 52 Ill. 2d 170, 287 N.E.2d 465.) Unless it appears that the court’s refusal to grant a continuance embarrassed the accused in preparing his defense or prejudiced his rights, the conviction should be affirmed. (People v. Canaday (1971), 49 Ill. 416, 275 N.E.2d 356.) A trial court’s ruling on denying a continuance is evaluated on the facts and circumstances of the case and a defendant may be forced to trial where there is no showing of diligence. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

Acknowledging both statutory and case authority allowing a trial judge discretion to deny a continuance, the facts of the instant case do not warrant an otherwise determination. This matter had been tried previously in 1974 with the same issues and essentially the same witnesses. Defense was aware of the trial date set one month before trial, but did not notify the court of the need for additional time until the day of trial. The trial judge held the case over until the next day which was when Mr. Doherty was expected to return from his vacation. We are not persuaded that defense counsel exercised due diligence in preparing this matter for trial from our examination of the record. Moreover, defendant has failed to establish how this denial of a continuance embarrassed or prejudiced his defense, as the record discloses that counsel participated vigorously at every stage of the trial. Thus, under the facts and circumstances of this case, we believe the trial court’s denial of defendant’s motion was a proper exercise of the court’s discretion.

IV

Defendant then argues that the trial judge’s failure to recuse himself or to grant a substitution of judges for the case, after making a derogatory remark about defense-appointed counsel, was reversible error. The court denied making the derogatory remark, which denial is also supported by the prosecutor. The trial judge also noted for the record that defendant would receive a fair trial before him.

By statute in Illinois, a defendant may move at any time for substitution of a judge for cause, supported by affidavit. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(c).) Relief is proper, however, only if there have been no prior substantive rulings by the judge from whom a substitution of judge is sought. People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208; People v. Johnson (1974), 24 Ill. App. 3d 152, 320 N.E.2d 69.

In the pending matter, the judge had already made rulings on defendant’s motions for discharge and denied his motion for a continuance. Thus, it would appear that the motion for substitution was untimely. Defendant was also not shown to have been entitled to an affirmative ruling on his motion where it appears that the purpose of the motion was not for the prejudice of the judge, but as an alternative motion for a continuance. In this instance, the motion for substitution was not made until after defendant’s motion for a continuance, which involved a heated exchange, was denied. The totality of the circumstances indicate the motion for substitution was made for dilatory purposes; as such it was not error to deny it. People v. Peterson (1979), 70 Ill. App. 3d 205, 387 N.E.2d 951.

Additionally, our review of the record fails to disclose that the trial court was prejudiced against defendant. The judge specifically stated that defendant would get a fair trial before him, and there is no indication otherwise, even though the determination of defendant’s guilt was made by a jury. Moreover, defendant was offered the opportunity to orally argue his motion, which he declined. This afforded defendant a “hearing” within the meaning of the section authorizing the accused to move at any time for substitution of judge for cause. (People v. Spurlark (1978), 67 Ill. App. 3d 186, 384 N.E.2d 767.) The burden rests not upon the court to justify retention of the case, but upon the defendant to offer evidence that prejudice will result if his motion for substitution of judges is not granted. (People v. Breitweiser (1976), 38 Ill. App. 3d 1066, 349 N.E.2d 454.) Defendant has not met that burden in this matter.

V

Another of defendant’s contentions states that the trial court committed reversible error by denying his motion in limine to bar the prosecution from impeaching Lavin with her 1980 conviction for theft embezzlement. However, the record indicates that defense wanted to call Investigators Vanerio and Houlihan to testify that they took a statement from Lavin immediately after the body was discovered. The judge denied the motion as Lavin was available to testify about her statements to the police. Defense then argued that Lavin’s 1980 conviction could be used to impeach her and thus the new trial would not restore the status quo. Since the court’s ruling was not specifically on the use of Lavin’s conviction for impeachment purposes, but on allowing the investigators to testify instead, this is not a proper issue before us.

In any event, the dictates of People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, and subsequent authority, would allow evidence of a prior conviction if within 10 years from the date of conviction “or of the release of the witness from confinement, whichever is the later date.” (People v. Luna (1980), 81 Ill. App. 3d 246, 248, 401 N.E.2d 662.) Consequently, if the court’s ruling was on the use of Lavin’s conviction, it was proper and the State could have used it as a valid impeachment device.

VI

Defendant asserts that the trial court unduly restricted his right to effective cross-examination. Specifically, he claims error when the court granted the State’s motion in limine (1) prohibiting defense from arguing to the jury the former trial and the reasons for its reversal, (2) the criminal history and character of Maskas and Leubscher, and (3) prohibiting defense from calling Maskas and Leubscher as court’s witnesses.

The decision to limit the scope of cross-examination is within the discretion of the trial court, and on review this decision is not reversible error unless it involved a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Blackwell (1979), 76 Ill. App. 3d 371, 378, 394 N.E.2d 1329.) Further, the use of the motion in limine is encouraged in criminal cases so as to exclude collateral or extraneous matters which can mislead or prejudice a jury. People v. Devine (1977), 55 Ill. App. 3d 576, 371 N.E.2d 22.

Applying the foregoing principles to the pending matter, it becomes readily apparent that mention of defendant’s first trial and its reversal was irrelevant to the material issue in defendant’s trial.

Moreover, defendant has not cited any authority which would permit him to impeach Maskas by a prior conviction if he was not a witness at his trial. We are not persuaded that defendant was prohibited from presenting his theory of the case through the testimony of other witnesses.

VII

Defendant argues that the court erred in admitting portions of his testimony at the first trial and permitting impeachment thereon. The prosecution introduced excerpts from defendant’s first trial where defendant stated that he went to a wrestling match at Comiskey Park the evening of August 31, 1974. Thereafter, a State witness testified that there was no wrestling match at Comiskey Park on the evening in question.

We believe this evidence was collateral and reject the State’s response that defendant’s former testimony was falsely exculpatory. In any event, however, we believe the error in admission of this evidence was harmless, considering the preponderance of evidence introduced at trial establishing defendant’s guilt. As was stated in People v. Canity (1981), 100 Ill. App. 3d 135, 145, 426 N.E.2d 591:

“ ‘It is not our policy to reverse a judgment of conviction merely because error has been committed, unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error.’ ” See People v. Tranowski (1960), 20 Ill. 2d 11, 17, 169 N.E.2d 347.

VIII

Defendant contends that the trial court committed reversible error in preventing defendant from calling Investigators Houlihan and Vanerio to testify about the Lavin statement.

We believe the ruling was correct as Lavin was available to testify and should have been called first as a witness. Defense chose not to call Lavin as a witness. Thus, to allow the investigators to testify as to the statement Lavin made to them to show that Paula was alive on September 3, 1974, would violate hearsay principles. People v. Robinson (1970), 46 Ill. 2d 229, 263 N.E.2d 57.

IX

Defendant also proposes that the court erred by failing to give an instruction tendered by defense calling attention to the State’s failure to call two witnesses who testified at the first trial. At defendant’s second trial the State did not call either Maskas or Leubscher, although they testified at the first trial. Defendant asserts that this raises a presumption that these witnesses would have testified unfavorably had they been called.

In a criminal prosecution, the State is not required to call every witness listed by it as witnesses who may be called in its case, and no adverse inference may be drawn from the State’s failure to call an available witness. (People v. Tillman (1980), 82 Ill. App. 3d 430, 402 N.E.2d 825.) Furthermore, it is not error to refuse to give this instruction. People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029.

In light of the above authority, the court properly rejected defendant’s proposed instruction. Moreover, the defense was informed that the State would not be calling these witnesses; however, that did not preclude the defense from calling them as their witnesses.

X

The trial court limited defense counsel’s closing argument to one hour. Defendant contends this was error. It is within the trial court’s discretion to impose a reasonable limit on the time for presenting argument to the jury. (People v. Kane (1980), 81 Ill. App. 3d 641, 401 N.E.2d 1310.) Moreover, defendant must demonstrate actual prejudice by the time limit imposed by the court. People v. Hovanec (1979), 76 Ill. App. 3d 401, 415, 394 N.E.2d 1340.

In this instance, counsel did not request additional time nor is there any indication in the record that he did not address most of the relevant issues in the trial. Much of the testimony was cumulative in nature and defendant’s brief is void of any important points he wished to make and did not have the opportunity to do so because of the time limitation. (See United States v. Roviaro (7th Cir. 1967), 379 F.2d 911.) Thus, the court’s imposition of the one-hour time limitation for closing argument was not an abuse of discretion.

XI

Lastly, defendant asserts that the prosecutor’s closing argument was so inflammatory and prejudicial as to deny him a fair trial. He first posits that it was reversible error to accuse defense counsel of trickery and fraud. He cites the following:

“MR. THEOBALD: I believe that the defense in this case has intentionally made a calculated attempt to confuse you and to distort the issues in this case. And I will get to that later.

* * *

But, there is, really, something interesting in the case, what the defense has done. They have deliberately calculated an attempt to defraud you in the defense that they presented.

MR. NUDELMAN: Objection, Judge.

MR. THEOBALD: And how did they do that?

THE COURT: Sustained.

MR. NUDELMAN: Thank you. Ask that the jury be instructed to disregard it.

MR. THEOBALD (continuing): In the following way. You heard the facts that they gave to Doctor Simpson. They didn’t give him all the facts. They didn’t tell Doctor Simpson about the observations of the police officers on the scene, what the police officers saw when they handled and touched the body. They didn’t tell Doctor Simpson about Paula Popik having the same clothes on September 6,1974, that she had on on September 1.

MR. NUDELMAN: Objection.

MR. THEOBALD: They didn’t tell Doctor Simpson that Paula—

THE COURT: Denied. Okay.

MR. THEOBALD (continuing): That Paula Popik was scheduled to go to work the following day, and that she didn’t go to work and that her whole family was all out there looking for her all over the place. They didn’t show Doctor Simpson this.”

And on rebuttal:

“MR. ANGAROLA: May it please the court, counsels, ladies and gentlemen of the jury: Mr. Doherty, ladies and gentlemen, wants you to believe that sincere appeal that you just saw. Well, ladies and gentlemen, I think that you’re all too smart to observe it, to believe that. Mr. Doherty wants you to believe that supposed sincere appeal and you know what, ladies and gentlemen, maybe if you hadn’t been here throughout the trial to see the changes in Mr. Doherty as his case went on, maybe you would almost be tempted to believe that for a moment, that supposed sincere appeal because, ladies and gentlemen, you saw this man change for whatever was appropriate.

The kind of country bumpkin lawyer on the cross-examination of Dr. Fisher. Was that the same man who put Dr. Stein on direct examination, the same man who cross-examined Dr. Fisher, didn’t know any medical terms?

And, my God, lo and behold, all of a sudden those medical terms jumped to his lips. Hemotolysis. My God, that man that I saw cross-examine Dr. Fisher wouldn’t have been able to say that word in a million years. Ladies and gentlemen, do not be fooled. Mr. Doherty would do whatever he could. Forget the sincere appeal, the sincere leaning forward and believe me, ladies and gentlemen, junk, because that is what it is.

You saw it. You saw the difference in cross-examination. Would Mr. Doherty try to dupe you? Absolutely, of course.

What about Mr. Noehre, if I pronounce his name correctly? Mr. Doherty was caught trying to dupe him. He was caught trying to dupe him.

* * *

Well, you mean to say Mr. Doherty was acting? Ladies and gentlemen, he got caught right before your eyes and is that the only attempt to dupe you?

Mr. Theobald talked about Mr. Doherty duping the experts. That’s one aspect of it. They were duped and I think all of you know and I think it’s clear to all of you.”

As a second instance of reversible error, defendant states that the prosecution argued that decedent had been molested when there was no evidence to support this claim.

Excerpts from the argument are:

“* * * he molested her and shot her in the head.”

“* * * assaulted her and shot her in the head.”

“* * * assaulted and shot her in the head.”

“* * * molested her and shot her in the head.”

“* * * the way she was molested * * *.”

And finally defendant contends that the prosecution degraded the standard of reasonable doubt:

“MR. ANGAROLA: Ladies and gentlemen, the evidence in this case would convict any defendant anywhere beyond a reasonable doubt.

MR. NUDELMAN: Objection to that form of argument.

THE COURT: Sustained, sustained.

MR. ANGAROLA: Defense counsel would like to present, defense counsel would like to present proof beyond a reasonable doubt is some unobtainable goal.

MR. NUDELMAN: Objection, Judge.

THE COURT: Sustained.

MR. ANGAROLA: Every Court in the United States—

MR. DOHERTY: He is paying no attention to you now.

MR. ANGAROLA: How much the defense attorneys like to present that proof beyond a reasonable doubt is some masterpiece.

MR. NUDELMAN: Objection, I ask my objection be noted for the record at this time, Judge.

THE COURT: You may continue.

MR. ANGAROLA: How much they try to chip away with little chips.”

It is well settled in Illinois that even though every defendant is entitled to a trial free from improper comments or arguments that engender prejudice, a verdict will not be set aside unless the remarks are clearly prejudicial, affecting the outcome of the case. (People v. Roberts (1981), 100 Ill. App. 3d 469, 426 N.E.2d 1104; People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.) In determining whether the remarks constituted prejudicial error, the test is whether the jury would have reached a contrary verdict had the improper remarks not been made. (People v. Witted.) Such remarks must either (1) constitute a material factor in defendant’s conviction, or (2) result in substantial prejudice to the accused. People v. Robinson (1980), 91 Ill. App. 3d 1138, 415 N.E.2d 585.

In some instances cited as error, defendant’s objection was sustained, thus curing any alleged error. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) In other instances cited, defendant failed to object, thus waiving the issue of these remarks on appeal. People v. Grayson (1980), 89 Ill. App. 3d 766, 411 N.E.2d 1177; People v. Pleasant (1980), 88 Ill. App. 3d 984, 411 N.E.2d 132.

While a prosecutor is allowed wide latitude in closing arguments (People v. Roberts), there were instances of improper remarks which we cannot condone. However, because of the overwhelming evidence of defendant’s guilt, none of these instances can be said to constitute a material factor in his conviction or to have resulted in substantial prejudice to him. Finally, the jury was instructed to disregard any matters to which objections have been sustained and admonished that closing arguments are not evidence. The jury being properly informed as to the performance of its duty thus further alleviated any potential harm. (People v. Dowd (1981), 101 Ill. App. 3d 830, 428 N.E.2d 894.) It is our belief that these arguments or remarks thus do not constitute reversible error.

Consistent with the aforementioned reasons, we affirm the judgment of the trial court.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES GORNICK, Defendant-Appellant.
    First District (2nd Division)
    No. 80-381
    Opinion filed June 22, 1982.

      Ralph Ruebner and Bradley S. Bridge, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Raymond Brogan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was convicted by a jury for the armed robbery of a Certified Grocery store on January 24, 1976, in Oak Park, and was sentenced to 30 years in the Illinois Department of Corrections to be served concurrently with another sentence imposed in connection with a River Forest armed robbery committed on June 15, 1976. This is an appeal from the Oak Park robbery conviction.

This appeal presents issues related to asserted trial errors, sentencing errors and errors relating to substitution of the judge and appointment of counsel.

For the reasons which follow, we affirm.

At trial evidence was adduced which revealed that Shelly Dunlap, a cashier at the Certified Grocery, at 5:45 p.m. on January 24, 1976, was asked by defendant to put the money in his grocery bag. Defendant opened his jacket; she saw a gun sticking out of his pants, and gave him all the paper money in her register. Defendant was sloppily wearing a light brown wig and had “very distinguishable blue eyes.” Her employer, John Vlahos, followed defendant out of the store. She identified defendant in a lineup on June 17, 1976. She also made an in-court identification of defendant at trial. The time lapse from the moment defendant spoke with her until he left was 2 or 3 minutes. Her attention was not “totally devoted” to defendant. The actual robbery itself took 30 seconds or less.

Vlahos, the owner and manager of Certified Grocery, testified that he was working the second register, next to Dunlap, and noticed a robbery “going on.” He saw defendant from a distance of 6 to 10 feet, under normal lighting conditions. He observed a gun about defendant’s person and saw Dunlap give defendant money. He followed defendant outside the store and heard a gunshot. At 6:30 or 7 p.m., the police brought him a person to identify whose appearance was completely different than the perpetrator of the crime, from the standpoint of his hair and jacket. On June 17, 1976, at a lineup, he identified defendant as the offender. He also identified defendant in court at trial. On cross-examination, Vlahos stated he could not tell whether defendant had on a wig or not. Defendant had “bright” eyes but he could not tell their color.

Officer Charles Schauer’s testimony with respect to the circumstances surrounding defendant’s lineup shortly after the incident was substantially consistent with Vlahos’. Schauer stopped defendant, searched his car but found no weapon, money or groceries.

On November 9, 1976, a hearing was held on defendant’s motion to quash and suppress before Judge Francis Mahon. At that hearing, defendant was represented by assistant public defenders Gerald Winiecki and Gary Stanton. James Maher, a River Forest policeman, testified he had presented a complaint and warrant to Judge Mahon at his home, stating that: defendant’s picture was identified as the person who committed the River Forest offense by a witness; defendant admitted being in the area at the time; defendant fit the physical description; and his car was seen in the area at the time. Judge Mahon issued the warrant. Maher and several other officers arrested defendant in his home. At approximately 10 p.m. on June 15, 1976, he was placed in a lineup. Two witnesses failed to identify him. He was held in jail overnight in River Forest. At 10:30 a.m. the next day, defendant contacted his attorney, Jack Dempsey. The record is silent as to whether Dempsey ever appeared at the police station. Defendant’s request to have his attorney present prior to any further lineups was denied. In a second lineup, held at 1 p.m. that day, in which everyone was wearing wigs, defendant was identified by two witnesses from the River Forest incident, and thereafter two witnesses to the Oak Park robbery identified him as the perpetrator of the Oak Park robbery. The court denied the motion to quash arrest and suppress the River Forest identification. A motion to quash the Oak Park identification was continued.

On November 17, 1976, defendant moved to remove Stanton and Winiecki as counsel, in part, because they were “frauds.” At a subsequent proceeding, although the court found these attorneys “very competent lawyers,” it appointed new counsel, assistant public defender Daniel Radakovich, and denied defendant’s motion for a Chicago Bar Association attorney. The court granted defendant leave to file a pro se motion to quash arrest and suppress evidence and to suppress identification in both the River Forest and Oak Park cases if he could bring in new evidence beyond that presented at the November 9 hearing.

On January 13, 1977, defendant informed the court that he had obtained private counsel, Albert Armonda, who represented him at the next hearing, “because of the operating click [sic] that they have in Oak Park between the prosecuting attorney and the public defender.” On June 26, 1978, Armonda’s motion to withdraw as counsel for defendant was granted and assistant public defender, Marijane Placek, was appointed as defendant’s counsel. On December 8, 1978, Placek withdrew from the case pursuant to defendant’s motion for a bar association attorney. Defendant asserted he “went through five of them” and none were “satisfactory” to him. On February 20, 1979, the trial court, Judge Anthony Bosco, presiding, denied defendant’s motion for a bar association attorney and reappointed Winiecki to the case unless and until defendant obtained a private attorney.

On April 20,1979, defendant again stated that he “went through” five public defenders; and, that there has been a “conspiracy” to put him away. Defendant requested that “Winiecki who knows the case so well take it.” At a subsequent proceeding, Winiecki made a motion to withdraw, stating that there was a potential conflict. Upon defendant’s request that Winiecki withdraw, the court granted the motion. Again defendant stated that he wanted a bar association attorney. On May 16, 1979, the court granted defendant’s request and appointed an attorney from the Chicago Bar Association, Charles Schwartz. The court informed Schwartz that it “will be pushing for trial. It’s an old case.” At the next hearing, defendant stated he didn’t “accept” Schwartz and accused Schwartz of “lying.” The court informed defendant that he would appoint no further lawyers and that defendant would be representing himself pro se if Schwartz withdrew. On July 30, 1979, defendant made a pro se motion to appoint new counsel and to substitute judges. The court stated that defendant’s motion for a substitution of judges would be entertained if it is “under the right section,” advising him that if he did not know the section, he should file his motion through his lawyer. Defendant requested that his counsel be charged with perjury and fraud. No hearing was held on these charges.

On August 3, 1979, defendant filed a petition for leave to file in the United States District Court for the Northern District of Illinois a section 1983 suit (42 U.S.C. sec. 1983 (1970)) in forma pauperis against, inter alia, Schwartz and Bosco, charging them with corruption, conspiracy, official misconduct, obstruction of justice, perjury, defrauding the State and intentionally conspiring to violate his civil and constitutional rights. That petition was denied by the District Court on August 22, 1979. Appeals from that denial to the Court of Appeals for the Seventh Circuit and to the United States Supreme Court were unavailing. Meanwhile, on September 10,1979, defendant asked the Cook County circuit court if he could hand a copy of his “suit” against Schwartz to the court. Judge Bosco replied that he did not want to know anything about it. Defendant repeatedly accused Schwartz of committing fraud and perjury and stated throughout the proceedings that he did not want to be represented by Schwartz. An evidentiary hearing on the motion to suppress identification then followed and the motion was denied.

I

A. Defendant contends that he was denied his right to a fair trial when he was represented at trial by an attorney he did not want, had accused of incompetency, perjury and fraud, and against whom defendant had filed a section 1983 suit, which he maintains established a per se conflict of interest which required Schwartz to withdraw, citing People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169, People v. Terry (1970), 46 Ill. 2d 75, 262 N.E.2d 923, and People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441. These cases are inapposite primarily because none involve a defendant who, as here, was attempting to thwart the prompt administration of justice by dilatory tactics. Before Schwartz represented defendant at trial, he previously had been represented by four different public defenders, none of whom were satisfactory in defendant’s eyes, and one privately retained attorney. The trial court repeatedly substituted counsel at defendant’s request. Consequently trial was delayed and rescheduled. On one occasion, the court, at defendant’s urging, even reappointed a public defender, Winiecki, whom defendant had previously caused to be removed on grounds that he was a liar and a fraud. Throughout the pretrial proceedings, defendant had requested the appointment of a Chicago Bar Association attorney, in part, because of the “conspiracy” at the public defender’s office. When the trial court granted defendant’s motion, by appointing Schwartz, defendant quickly found that attorney also to be a fraud and a liar.

The right to be represented by counsel of defendant’s own choosing may not be utilized to frustrate the administration of justice or to otherwise embarrass the effective prosecution of crimes. (People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229; People v. Solomon (1962), 24 Ill. 2d 586, 182 N.E.2d 736; People v. Cross (1979), 77 Ill. 2d 396, 413, 396 N.E.2d 812.) Absent a showing of good cause, it is within the discretion of the trial court to deny a request for substitute counsel. (People v. Gray (1965), 33 Ill. 2d 349, 211 N.E.2d 369; People v. Jackson (1981), 100 Ill. App. 3d 318, 323, 426 N.E.2d 1132; People v. Gardner (1977), 47 Ill. App. 3d 529, 532-33, 362 N.E.2d 14.) The trial court could have reasonably found that the purpose of the request was to obtain further delay (People v. Friedman (1980), 79 Ill. 2d 341, 349), and that defendant was attempting to hamper the orderly process of law. People v. Jackson (1981), 100 Ill. App. 3d 318, 324; People v. Finley (1978), 63 Ill. App. 3d 95, 104, 379 N.E.2d 645; People v. Gardner (1977), 47 Ill. App. 3d 529, 534.

Next, defendant makes allegations of incompetency of counsel. A defendant is entitled to a new trial if his appointed counsel incompetently represented his interests and this incompetency produced substantial prejudice to defendant without which the outcome of the trial would probably have been different. (People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203; People v. Goerger (1972), 52 Ill. 2d 403, 288 N.E.2d 416.) A defendant is entitled to competent, not perfect, representation. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.) If the purported incompetence is a matter of trial tactics or strategy, which are matters of professional judgment, such allegations cannot support a claim of ineffective representation. (People v. Haywood (1980), 82 Ill. 2d 540, 543-44, 413 N.E.2d 410; People v. Skorusa (1973), 55 Ill. 2d 577, 304 N.E.2d 630.) Defendant argues that Schwartz was incompetent in failing to make certain pretrial motions, failing to present a single witness and spending insufficient time with defendant before a pretrial hearing. The record indicates, however, that Schwartz’ representation of defendant was adequate; if any deficiency existed, it did not prejudice the outcome of the trial.

B. Relying on section 114 — 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(c)), defendant maintains that the trial court improperly failed to conduct a hearing on his pro se motion for substitution of judges. He apparently means to rely on the 1977 statute, since section 114 — 5(c) was amended effective September 26, 1979, which occurred after defendant’s motion for substitution of judges. The 1977 statute provided: “* * * any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.” The motion and affidavit in essence alleged that: defendant will not receive a fair trial before Judge Bosco; numerous constitutional rights of defendant, including the right to effective assistance of counsel, due process of law and equal protection were violated; Judge Bosco refuses to correct these violations and abuses; and that Judge Bosco does not allow him the right to file motions or to address the court.

None of the allegations were sufficient to disqualify Judge Bosco. The first allegation is a mere conclusion which fails to establish prejudice (see People v. Nickols (1976), 41 Ill. App. 3d 974, 979, 354 N.E.2d 474); the next two allegations merely assert, in effect, that Judge Bosco has ruled adversely to defendant (People v. Vance (1979), 76 Ill. 2d 171, 178, 390 N.E.2d 867). The last allegation is not supported by the record. A motion for the substitution of a judge must be given a liberal interpretation; nevertheless, the motion must comply with the statute (People v. Ganci (1978), 57 Ill. App. 3d 234, 372 N.E.2d 1077), particularly where, as here, a defendant pursues a course of obstruction and delay in the trial of the case.

C. Defendant also contends that his right to a fair trial was denied because he was “forced” to trial, before a judge against whom he had filed a section 1983 lawsuit; however, the suit was never filed. When defendant asked the judge if he could hand him a suit he had against Schwartz, a private attorney, Judge Bosco responded that he didn’t want to know anything about it. Assuming arguendo that the trial court had been made aware of the putative section 1983 lawsuit against himself, the judge would have been immune from liability and any personal conflict was greatly diminished, if not eliminated. (See Humble v. Foreman (5th Cir. 1977), 563 F.2d 780.) More importantly, if defendant’s position were to be adopted, future defendants could remove judges at will, by simply “filing” such suits, thereby circumventing the good cause requirement of section 114 — 5(c) and frustrating the orderly process of law in criminal cases.

II

Defendant maintains he was denied his “right to a fair trial,” because his attorney failed to make a motion to quash arrest at his request, presumably contending that his right to effective counsel under the sixth amendment was infringed. Schwartz refused to make the motion to quash arrest because it was raised and disposed of in the River Forest case and operated as “res judicata” to this case. Although defendant was convicted of two different crimes in different locations, there was but one arrest. Defendant maintains that: (1) the State waived the right to argue collateral estoppel; (2) collateral estoppel was inapplicable because there was new evidence to present; and (3) the order in the River Forest case was not final. Further, defendant asserts that the River Forest hearing was unfair because: (a) the judge who issued the arrest warrant also presided on the motion to quash arrest; (b) it was not brought to the court’s attention that defendant did not have counsel at the lineup; (c) there was no probable cause to hold defendant for the lineups at which he was identified; and (d) the trial court failed to state its reasons for the denial of the motion to quash arrest.

Defendant’s discussion makes no meaningful attempt to show that the purported incompetence of Schwartz produced substantial prejudice without which the outcome of the trial probably would have been different. (People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203.) Assuming arguendo the validity of defendant’s argument, that Schwartz erred in failing to move to quash the arrest, and assuming further that the trial court would have granted his motion and suppressed the tainted fruit, the lineup identification, the outcome of the trial would have been the same. The in-court identification of defendant by Dunlap and Vlahos had a separate and independent basis and therefore was admissible. (Gilbert v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951; People v. Bryant (1980), 85 Ill. App. 3d 836, 841, 407 N.E.2d 597, appeal denied (1980), 81 Ill. 2d 603.) Thus, even if the pretrial motion had been brought to the attention of the trial court and allowed, the outcome of the trial would have been the same. The error complained of is harmless.

III

Defendant’s contentions that he did not receive a fair sentencing hearing because he was sentenced by a judge he was suing and represented by an attorney he was suing have already been discussed in part I of this opinion.

IV

Defendant next urges that he was unconstitutionally penalized for going to trial, because of the disparity between the recommended sentence and the one imposed at the conclusion of his jury trial. This contention is without merit. The record shows that on June 26, 1978, defendant’s privately retained counsel, Armonda, told Judge Schrier that they had a “402-conference where this gentleman [defendant] was offered on [sic] a plea six years on the recommendation of the State,” and that defendant refused to “accept that.” This statement by defendant’s counsel is, apparently, the only evidence in the record showing that defendant was offered such a sentence before going to trial. It is unclear whether the recommendation was accepted by the court. On October 12, 1979, Judge Bosco sentenced defendant to 30 years, the maximum sentence for armed robbery. Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2 and 1005 — 8—1(a) (3).

Defendant has failed to make an affirmative showing that his sentence was given as a punishment for exercising his constitutional right to a trial. (People v. Massarella (1979), 80 Ill. App. 3d 552, 573, 400 N.E.2d 436.) The fact that a heavier sentence was imposed after trial than the one offered prior to trial does not necessarily justify the inference that the higher sentence was imposed as a punishment. (People v. Sivels (1975), 60 Ill. 2d 102, 106-07, 324 N.E.2d 422; People v. Davis (1981), 93 Ill. App. 3d 187, 416 N.E.2d 1179.) Defendant’s reliance on People v. Dennis (1975), 28 Ill. App. 3d 74, 328 N.E.2d 135, is misplaced. There a sentence, imposed following a jury trial, was 20 times greater than that offered during plea negotiations, a disparity absent here. Defendant’s contention that “a greater disparity was not possible here” under the sentencing provisions of the armed robbery statute must be rejected; defendant could have entered a plea of guilty to a lesser crime than armed robbery.

Defendant’s contention that the trial court improperly failed to state its reason for the sentence it imposed in violation of section 5 — 4—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1(c)) (hereinafter “Unified Code”) is untenable. At the sentencing hearing, the trial court commented that it was aware of the numerous times defendant had been convicted of armed robbery. Later, the court stated that the facts and circumstances of defendant’s “background” forced it to consider his sentence in terms of the “maximum.” The court noted the importance of the concept of the maximum even if it were 60 or 100 years. The court also stated that it “must give * * * [defendant] the maximum” and sentenced him to 30 years. It thus appears that the maximum sentence was selected because of defendant’s lengthy history of criminality and was substantially in compliance with the statute. The fact that the comments of the court were uttered shortly before its announcement of defendant’s sentence is not material under section 5 — 4—1(c). A sentencing judge need not state every factor it considered in determining a defendant’s sentence. (People v. Padilla (1980), 91 Ill. App. 3d 799, 802, 415 N.E.2d 12.) The trial court’s exercise of discretion is entitled to great deference and weight (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882), and the sentence here, given defendant’s long history of crime, must be affirmed. See People v. Lykins (1979), 77 Ill. 2d 35, 40, 394 N.E.2d 1182.

Defendant’s urging that he did not make a knowing and intelligent waiver election to be sentenced under the new sentencing act lacks substance. The court informed defendant that he had a right to elect between being sentenced under the old or the new law and explained the differences between these laws. Defendant stated that he understood the concepts. When asked to make an election, defendant responded, in part, “[n]ow you are giving me a chance to what kind of a sentence [sic], under the new or old law * * * I have to take this under the new law.” The trial court asked defendant’s attorney whether he was convinced that defendant understood the difference between the provisions of the old and new act, to which defendant’s attorney responded in the affirmative. Defendant’s election was thus in accordance with section 8 — 2—4(b) of the Unified Code (Ill. Rev. Stat. 1979, ch. 38, par. 1008 — 2-4(b)). People v. Tolefree (1980), 85 Ill. App. 3d 844, 849, 407 N.E.2d 604; People v. Kurena (1980), 87 Ill. App. 3d 771, 410 N.E.2d 277.

V

Finally, defendant maintains that section 5 — 3—1 of the Unified Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1) was violated when he was sentenced in the absence of a current presentence report. In sentencing defendant on October 12, 1979, the trial court relied on a presentence report prepared approximately 10 months earlier, on December 8, 1978, in connection with defendant’s conviction in the River Forest robbery. At the sentencing hearing the trial court asked the respective parties if they wanted to supplement in any way the information contained in the report. Defendant failed to object to the date or the contents of the report.

In People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9, the supreme court held that it was the duty of the parties to bring to the attention of the sentencing authority any alleged deficiency or inaccuracy in the presentence report. Any purported deficiency in the presentence report with respect to its lack of current information was waived by defendant’s failure to object. (See People v. Lane (1980), 91 Ill. App. 3d 827, 830, 414 N.E.2d 1249.) Defendant’s reliance on People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416, is misguided. In Youngbey, a presentence investigation and report was held to be a mandatory requirement which cannot be waived unless both parties agree to the imposition of a specific sentence. Youngbey is inapposite; the issue here is whether the presentence report utilized by the court was defectively old rather than whether it was mandatory.

For the foregoing reasons, the conviction and sentence cannot be disturbed.

Affirmed.

STAMOS, P. J., and PERLIN, J., concur.

       See Rule 11, N.D. of Ill. (1979). As previously noted, defendant’s petition for leave to file the complaint in forma pauperis was denied and appeals from the denial were fruitless, according to district court and court of appeals documents attached to defendant’s brief.


author: JUSTICE NASH

text:
    MAX KEMLING, Adm’r of the Estate of Ruth Kemling, Deceased, Plaintiff-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Second District
    No. 81-521
    Opinion filed June 30, 1982.
    Rehearing denied August 6, 1982.

      John R. Wienold and Bernard K. Weiler, both of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, for appellant.
    Roger K. O’Reilly, of O’Reilly and Cunningham, of Wheaton, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Country Mutual Insurance Company, appeals from a declaratory judgment of the circuit court of Du Page County estopping it from contesting in a pending arbitration hearing the negligence of an uninsured motorist as the proximate cause of injury sustained by plaintiff, Max Kemling.

On February 23, 1979, plaintiff was injured and his wife, Ruth Kemling, killed in a collision between an automobile driven by plaintiff, in which his wife was a passenger, and an uninsured vehicle driven by John Menig. Kemling’s automobile was covered by a policy of insurance issued by Country Mutual which contained an uninsured motorist provision by which the insurance company agreed to pay for injuries sustained by plaintiff and his family in such a collision if the uninsured motorist was liable. The insurance contract also provided that if the parties were unable to agree as to the uninsured motorist’s liability and the amount of damages, those questions would be submitted to binding arbitration in which the rules of evidence applicable in a court of law would apply.

On November 21, 1980, the claim of Max Kemling, as administrator of the estate of Ruth Kemling, deceased, was submitted to a panel of arbitrators selected pursuant to the contract. The arbitrators found in favor of the estate and awarded it damages of $82,500. No record was required to be made of the arbitration proceedings and none was made.

Max Kemling, as administrator of the estate of Ruth Kemling, deceased, filed a complaint for confirmation of the award in the circuit court pursuant to section 11 of the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. Ill). Thereafter, Max Kemling, individually, filed an amendment to the complaint adding count II in which he sought a declaratory judgment that Country Mutual was estopped from contesting any liability issues or the negligence of the uninsured motorist in the pending arbitration claim of Max Kemling for his own personal injury. After hearings, the trial court entered an order confirming the arbitrators’ award to the estate of Ruth Kemling and further ordered that Country Mutual was estopped from contesting in any arbitration hearing the issue of negligence of the uninsured motorist, John Menig, as being a proximate cause of the collision giving rise to the claim of Max Kemling, individually, for personal injuries under the policy of insurance issued to him by Country Mutual. It is the latter order from which Country Mutual appeals.

The primary question offered for our resolution by this appeal is whether the doctrine of res judicata applies to issues determined in arbitration proceedings.

Defendant contends the circuit court lacks jurisdiction under the declaratory judgment act (Ill. Rev. Stat. 1979, ch. 110, par. 57.1) or the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 101 et seq.) to limit the issues to be submitted or the procedures followed in arbitration, and that collateral estoppel cannot be applied to bar the scope of arbitration. Plaintiff argues that as section 14 of the Uniform Arbitration Act provides for the enforcement of a judgment confirming an arbitration award “as any other judgment” (Ill. Rev. Stat. 1979, ch. 10, par. 114), the doctrine of estoppel by verdict applies to preclude the parties from relitigating the same issues.

It has been held that arbitration is in the nature of a judicial inquiry with its object to achieve a final and binding disposition of differences between parties, both present and prospective, with the force of an adjudication precluding the parties from relitigating the same subject. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 93, 242 N.E.2d 149, 151; White Eagle Laundry Co. v. Slawek (1921), 296 Ill. 240, 244, 129 N.E. 753, 754-55; Pillott v. Allstate Insurance Co. (1977), 48 Ill. App. 3d 1043, 1046-47, 363 N.E.2d 460, 463; Rosee v. Board of Trade (1976) , 43 Ill. App. 3d 203, 239-40, 356 N.E.2d 1012, 1036-37, cert. denied (1977) , 434 U.S. 837, 54 L. Ed. 2d 99, 98 S. Ct. 127.) The arbitrators become judges of fact and law by choice of the parties, and their honest decision within the scope of the submission should be final. Sherfy v. Graham (1874), 72 Ill. 158, 159; American Invsco Realty, Inc. v. Century 21, Rohter & Co. (1981), 96 Ill. App. 3d 56, 58-59, 420 N.E.2d 692, 695, appeal denied (1981), 85 Ill. 2d 562; Country Mutual Insurance Co. v. National Bank of Decatur (1969), 109 Ill. App. 2d 133, 137, 248 N.E.2d 299, 302, appeal denied (1969), 42 Ill. 2d 583.

The doctrine of res judicata is based upon requirements of justice and public policy which reflect the consideration that there be an end to litigation after each party has had a full opportunity to present all pertinent facts. (Palya v. Palya (1980), 87 Ill. App. 3d 472, 474, 409 N.E.2d 133, 135.) A judgment by a tribunal having jurisdiction of the parties and subject matter should be conclusive as to the facts in question and issues determined in the first proceedings when the same issue is again raised between those parties. C.I.S., Inc. v. Kann (1979), 76 Ill. App. 3d 109, 110-11, 394 N.E.2d 916, 918, appeal denied (1980), 79 Ill. 2d 625; Chas. Ind. Co. v. Cecil B. Wood, Inc. (1965), 56 Ill. App. 2d 30, 36, 205 N.E.2d 786, 789, appeal denied (1965), 32 Ill. 2d 625.

Collateral estoppel or estoppel by verdict, a branch of res judicata, prohibits relitigation of an issue essential to and actually decided in an earlier litigation by the same parties or their privies. (City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 1119-20, 418 N.E.2d 63, 71; Turzynski v. Liebert (1976), 39 Ill. App. 3d 87, 90, 350 N.E.2d 76, 79.) Under the modern view, identity of party for application of estoppel is satisfied so long as the party against whom its application is sought, Country Mutual in this case, is identical in both actions and had a full and fair opportunity to contest an issue which was necessarily determined in the prior proceeding. C.I.S., Inc. v. Kann (1979), 76 Ill. App. 3d 109, 111, 384 N.E.2d 916, 918, appeal denied (1980), 79 Ill. 2d 625; Chidester v. Cagwin (1966), 76 Ill. App. 2d 477, 486, 222 N.E.2d 274, 279, appeal denied; Chas. Ind. Co. v. Cecil B. Wood, Inc. (1965), 56 Ill. App. 2d 30, 36-37, 205 N.E.2d 786, 789, appeal denied (1965), 32 Ill. 2d 625; see Pinto Trucking Service, Inc. v. Motor Dispatch, Inc. (N.D. Ill. 1980), 485 F. Supp. 484; Butler v. Stover Brothers Trucking Co. (7th Cir. 1977), 546 F.2d 544.

Country Mutual contends the Uniform Arbitration Act, adopted by Illinois, grants the circuit court only limited jurisdiction over arbitrable disputes confined to the power to compel or stay arbitration, to enforce awards and to vacate, modify or correct awards made under specified circumstances. (Ill. Rev. Stat. 1979, ch. 10, pars. 102, 111 — 114.) It argues that as the relief sought by plaintiffs declaratory judgment action is not prescribed in the statute the court lacked authority to enter the judgment from which it appeals, citing Illinois Power Co. v. Miller (1956), 11 Ill. App. 2d 296, 302, 137 N.E.2d 78, 81-82.

Subject matter jurisdiction is the fundamental power of the court to hear and decide a case on its merits; it does not simply mean jurisdiction of the particular case before it, but the class of cases to which that case belongs. (Merit Chevrolet, Inc. v. Department of Revenue (1965), 33 Ill. 2d 207, 212, 210 N.E.2d 470, 473-74; Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 67-68, 418 N.E.2d 431, 438-39, appeal denied (1981), 85 Ill. 2d 567.) In Illinois, circuit courts have original jurisdiction over all justiciable matters (Ill. Const. 1970, art. VI, sec. 9; Lopin v. Cullerton (1977), 46 Ill. App. 3d 378, 380, 361 N.E.2d 6, 8, appeal denied), and while the General Assembly may limit the trial court’s power substantively by statute, it may not limit the trial court’s power procedurally to construe statutory rights. (Palella v. Leyden Family Service & Mental Health Center (1980), 79 Ill. 2d 493, 499, 404 N.E.2d 228, 231; Skilling v. Skilling (1982), 104 Ill. App. 3d 213, 219, 432 N.E.2d 881, 886; Lopin v. Cullerton (1977), 46 Ill. App. 3d 378, 380, 361 N.E.2d 6, 8, appeal denied.) The test of jurisdiction is to be found in the nature of the case and the relief which is sought. People ex rel. Person v. Miller (1977), 56 Ill. App. 3d 450, 457, 371 N.E.2d 1012, 1018, appeal denied (1978), 71 Ill. 2d 605.

Here, the nature of the relief sought by plaintiff was a declaration as to the legal effect, if any, of the first arbitration on the pending arbitration which presented a dispute admitting of immediate and definitive determination pursuant to the declaratory judgment statute. No relief was sought by plaintiff under the arbitration act. The scope of declaratory judgment relief is broad, liberal and unrestricted by technicalities. (In re Estate of Moerschel (1980), 86 Ill. App. 3d 482, 485, 407 N.E.2d 1131, 1134; Young v. Hansen (1969), 118 Ill. App. 2d 1, 6, 249 N.E.2d 300, 303.) It is designed not to supplant existing remedies, but as an alternate or additional remedy to facilitate the administration of justice and to settle and fix rights of the parties based upon an actual justiciable controversy. (Miller v. County of Lake (1980), 79 Ill. 2d 481, 487, 404 N.E.2d 222, 225; Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 450, 389 N.E.2d 529, 531-32.) No action or proceeding is open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby. Ill. Rev. Stat. 1979, ch. 110, ch. 57.1.

In Illinois Power Co., relied upon by defendant, it was held that a court acting under the declaratory judgment act may not interpret, define, elucidate or declare rights determined under a former judgment and declaratory judgment may not be used as a substitute for appeal or a means by which a litigate might reexamine a prior judgment. The court determined a declaratory judgment had been properly sought in that case to declare rights of parties bringing it who were not parties to the original proceedings.

This question has been addressed by the reviewing courts in New York, upon whose arbitration act the uniform act was patterned. (Ill. Ann. Stat., ch. 10, par. 30, Introductory Note, at 401 (Smith-Hurd 1975).) In Rembrandt Industries, Inc. v. Hodges International, Inc. (1976), 38 N.Y.2d 502, 504, 381 N.Y.S.2d 451, 452, 344 N.E.2d 383, 384, the court reasoned that while review of an arbitration award was limited in the trial court, the question of the scope of the award and its res judicata applicability in a subsequent arbitration was an issue properly determinable by the court and not by the arbitrators. See also In re Application of Weinberger (1973), 41 App. Div. 2d 620, 340 N.Y.S.2d 720.

We conclude declaratory judgment was properly brought in the present case, as it does not seek to redetermine the rights of either Country Mutual or the estate resolved in the initial arbitration proceeding. The first arbitration proceeding addressed the issue of defendant’s liability to the estate; the declaratory judgment action does not seek to affect rights resulting therefrom but addresses only the procedural question of what effect that determination may have in Max Kemling’s personal arbitration proceedings. See Lopin v. Cullerton (1977), 46 Ill. App. 3d 378, 380,361 N.E.2d 6, 8, appeal denied; People v. Byrnes (1975), 34 Ill. App. 3d 983, 986, 341 N.E.2d 729, 730-31.

Although Illinois reviewing courts have not heretofore addressed the primary question presented by this case, other jurisdictions have con-eluded that collateral estoppel does apply to an issue of fact actually contested and decided in an earlier arbitration, if that issue was properly before the arbitrators and the party against whom the estoppel is asserted had a full and fair opportunity to contest it at that time. (Ufheil Construction Co. v. Town of New Windsor (S.D.N.Y. 1979), 478 F. Supp. 766, 767-68, aff'd (2d Cir. 1980), 636 F. 2d 1204; Overseas Motors, Inc. v. Import Motors Limited, Inc. (E.D. Mich. 1974), 375 F. Supp. 499, 511, aff'd (6th Cir. 1975), 519 F. 2d 119, cert. denied (1975), 423 U.S. 987, 46 L. Ed. 2d 304, 96 S. Ct. 395; James L. Saphier Agency, Inc. v. Green (S.D.N.Y. 1961), 190 F. Supp. 713, 719; Israel v. Wood Dolson Co. (1955), 285 App. Div. 719, 720-21,140 N.Y.S.2d 663, 665-66.) In In re Arbitration between American Insurance Co. & Messinger (1977), 43 N.Y.2d 184, 188-89, 401 N.Y.S.2d 36, 38, 371 N.E.2d 798, 800-01, a case factually similar to this one, the court held that a determination made in arbitration of a property damage claim between insurance carriers was binding in a subsequent injury arbitration arising out of the same conduct. See Dewey v. Reynolds Metals Co. (6th Cir. 1970), 429 F. 2d 324, aff'd (1971), 402 U.S. 689, 29 L. Ed. 2d 267, 91 S. Ct. 2186; Lehto v. Underground Construction Co. (1977), 69 Cal. App. 3d 933, 138 Cal. Rptr. 419; Corey v. Avco-Lycoming Division, Avco Corp. (1972), 163 Conn. 309, 307 A. 2d 155; compare Operating Engineers Local No. 450 v. Mid-Valley, Inc. (S.D. Tex. 1972), 347 F. Supp. 1104, 1107.

We need not decide here whether collateral estoppel may apply between successive arbitrations in Illinois, as under traditional principles of that doctrine it would, in any event, be inapplicable in this case. As earlier noted, the offensive use of collateral estoppel requires a close examination of whether defendant had a full, fair and complete opportunity to contest the negligence issue during the first arbitration proceeding. (Fred Olson Motor Service v. Container Corp. of America (1980), 81 Ill. App. 3d 825, 830-31, 401 N.E.2d 1098, 1102, appeal denied (1980), 81 Ill. 2d 591.) In the present case the trial court had no record before it upon which it could make a determination of that circumstance. Defendant notes that defenses applicable to the parties in the first proceeding, particularly the Dead Man’s Act (Ill. Rev. Stat. 1979, ch. 51, par. 2), which could be asserted in the arbitration on behalf of the deceased passenger, are not applicable in the second pending arbitration in which Max Kemling’s personal injury claim will be considered. No evidence was presented to the trial court in this case from which it could conclude that defendant had a full opportunity to contest the negligence issue in the first proceeding. See People ex rel. Scott v. Police Hall of Fame, Inc. (1978), 60 Ill. App. 3d 331, 344, 376 N.E.2d 665, 675; Pipitone v. Mandola (1962), 33 Ill. App. 2d 461, 465, 180 N.E.2d 33, 35.

In Fred Olson Motor Service v. Container Corp. a truck driver involved in an accident had been prevented from testifying in a prior judicial action in which he had been found negligent because of application of the Dead Man’s Act. The reviewing court concluded that collateral estoppel could not, therefore, be used offensively to prevent relitigation of the liability issue in subsequent actions arising out of the same action.

Accordingly, the judgment of the circuit court of Du Page County is reversed.

Reversed.

HOPF and LINDBERG, JJ., concur.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES R. SAMPLES, Defendant-Appellant.
    Fifth District
    No. 81-356
    Opinion filed May 26, 1982.

      Edward J. Kionka, of Carbondale, and Paul T. Austin & Associates, of Marion (Paul T. Austin, of counsel), for appellant.
    Randy Patchett, State’s Attorney, of Marion (Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

A jury found the defendant, Charles R. Samples, guilty of armed violence and of intimidation. The incident giving rise to the charges against defendant arose out of a dispute between him, as a used car dealer, and the bank with which he customarily did business over the amount and disposition by the bank of certain credit life insurance monies received upon the death of defendant’s father and business associate. As a result of the dispute defendant had gone to the bank to “settle the matter,” seeking, in particular, certificates of title to automobiles affected by the bank’s disposition of the monies. Defendant was sentenced to a term of imprisonment of 10 years for the crime of armed violence and to a concurrent term of 2 years for the offense of intimidation.

On appeal defendant raises five issues: (1) whether the trial court erred in denying his motion for a substitution of judge; (2) whether the trial court erred in giving on its own motion “an incorrect instruction on the law after the jury had returned its verdict and before the jury could be polled”; (3) whether the armed violence statute is unconstitutional; (4) whether the trial court erred in permitting conviction on both armed violence and intimidation, “a lesser included offense” and (5) whether defendant’s sentence is excessive. In view of the disposition we make of this case we need address only the issue concerning defendant’s motion for substitution of judge made pursuant to section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(a)), which provides as follows:

“Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection, provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.”

We set forth only those facts pertinent to that issue.

On November 21, 1980, the State filed a six-count information against defendant, whose first appearance was before Judge Lewis on December 18,1980, for a preliminary examination. On December 30, 1980, defendant appeared for a preliminary hearing before Judge Howerton, who found probable cause and entered orders for discovery as well as an order, filed January 2, 1981, setting the motion hearing for March 25, 1981, the pretrial hearing for March 27, 1981, and jury trial for April 1, 1981. At the preliminary hearing Judge Howerton denied defendant’s motion to reduce bail. On February 25, 1981, defendant filed a motion for substitution of Judge Lewis because of his prejudice against defendant. At the hearing on the motion on March 27, 1981, Judge Lewis considered and denied a motion of defendant for continuance from the trial date of April 1, 1981. On Wednesday, April 1, 1981, at the beginning of a motion hearing before Judge Lewis, the court stated, “Mr. Austin [defendant’s attorney] called me on the telephone [on Monday, March 30, 1981] and brought it to my attention that there had been a Motion for Substitution of Judge filed.” Defendant’s attorney responded:

“It is my understanding under the law that [the motion for substitution] must be filed within 10 days after you know what Judge this has been assigned to and placed on the particular Judge’s docket. It’s our position that simply because your Honor set the Case back in November [sic], it is not the same thing as being placed upon your docket and our first notice that [defendant’s cause] was actually going to be placed on your docket was when he received the docket sheet, which was some two or three weeks ago and sometime after we had filed a Motion for Substitution. IT IS FOR THAT REASON we believe it’s timely.”

In denying the motion for substitution Judge Lewis stated:

“Gentlemen, I have been assigned to Williamson County since April of 1972. I guess this will be my 9th year that I have been assigned to Williamson County and I have been assigned for those last nine years to hear criminal cases. No other Judge has been assigned to handle criminal cases in Williamson County unless a substitution was taken from me. I’m the only Judge, I guess, who’s handled any criminal cases in Williamson County except when a substitution has been granted or unless — that’s the only time unless I was tied up in another trial and they might have handled some pretrial matters. So, we’ve had meetings with the Bar Association in Williamson County and, of course, Mr. Austin you, of course, are a member of the Bar Association so I hope you’re well aware that I’m the only one that handles criminal cases unless there is a substitution granted, or unless I’m sick — of course, that hasn’t occurred in the nine years either. So, I would think that everybody was well apprised that Judge Lewis handles all the criminal cases in this County unless there is a substitution granted and so the Motion will be denied. I think it’s — if there were any grounds for prejudice that would come under a different section — you would have to file an affidavit, so just on the general motion, I don’t think it’s timely because of the great delay. We would have to assign it to another Judge, who would have to reschedule it which would cause a delay of this case, so the Motion will be denied.”

The record contains neither an order of assignment nor any rule of practice concerning assignment such as might be set forth by the circuit court of Williamson County.

A motion for substitution is timely filed when filed within ten days of the date a defendant can be charged with knowledge of the assignment of the case to the trial judge. (People v. Oatis (1979), 69 Ill. App. 3d 736, 387 N.E.2d 1052.) The right to a change of venue for prejudice of a judge is absolute. (People v. Peterson (1979), 70 Ill. App. 3d 205, 387 N.E.2d 951; People v. Gregory (1958), 16 Ill. App. 2d 576, 149 N.E.2d 198.) The venue provisions are to be liberally rather than strictly construed in order to permit rather than defeat an application for a change of venue, particularly where prejudice is charged on the part of the judge. (People v. Kostos (1961), 21 Ill. 2d 451, 173 N.E.2d 469; People v. Peterson.) A liberal construction is required in order to protect the guarantee of a fair and impartial trial implicit in our legal system. (People v. Flowers (1977), 47 Ill. App. 3d 809, 365 N.E.2d 506.) In furtherance of this guarantee, section 114 — 5(a) allows a defendant 10 days from the time a judge is assigned to preside at his trial in which to move for an automatic substitution of judge, provided the defendant believes the judge to be prejudiced against him. People v. Flowers.

These rules are predicated upon a good-faith allegation of prejudice on the part of the court and are not to be used for purposes of delay. (People v. Peterson.) Furthermore, where a judge has already commenced a hearing and has by his rulings indicated his views on the merits of the cause, it is too late for the party against whom such rulings have been made to move for a change of venue. (People v. Gregory.) Thus, one criterion for determining the timeliness of such a motion is whether it was filed before the court had considered a substantive issue in the cause. (People v. Ehrler (1969), 114 Ill. App. 2d 171, 252 N.E.2d 227.) The purpose of this rule is to preclude counsel from ascertaining the attitude of the trial judge during a hearing on an issue related to the cause and subsequently asserting the prejudice of the court as a ground for allowing a change of venue, provided the trial court’s judgment was determined not to be in harmony with the theory of counsel. People v. Ehrler.

Because, assuming compliance with the statute, the right of a defendant is absolute, upon such a motion the trial judge loses all power and authority over the cause except to make the necessary orders to effectuate the change, and the denial of such a motion constitutes reversible error. (People v. Davis (1957), 10 Ill. 2d 430, 140 N.E.2d 675, cert. denied (1957), 355 U.S. 820, 2 L. Ed. 2d 35, 78 S. Ct. 25.) If a defendant’s motion is improperly denied, all subsequent action of the trial court is void. People v. Ethridge (1966), 78 Ill. App. 2d 299, 223 N.E.2d 437.

We do not think that the prevailing practice in the circuit court of Williamson County described by Judge Lewis, in which a certain judge hears all the criminal cases unless he is ill or otherwise unable to do so, amounts to placement of a cause on the trial call of a judge so as to commence the running of the 10-day period in which a defendant may move for automatic substitution of a judge for prejudice. (Cf. People v. Harston (1974), 23 Ill. App. 3d 279, 319 N.E.2d 69, where in force at the pertinent time was an administrative order that all criminal trials were to be heard by a certain judge.) Under such a system as that described here serious questions come instantly to mind as to precisely when the critical 10-day period might reasonably be expected to begin to run. Under such a system a defendant might find his right to an automatic substitution of judge for prejudice disappointingly hollow. (See People v. Thomas (1978), 58 Ill. App. 3d 460, 374 N.E.2d 795.) Because defendant’s cause cannot be said to have been placed on Judge Lewis’ trial call at the time defendant filed his motion for substitution, we must conclude that the motion could not have been untimely filed for having been filed too late.

Apparently in the alternative, the State contends that defendant’s motion was likewise untimely filed for having been filed too early, for not having been filed during the 10-day period after which defendant maintains that he did, in fact, learn that his cause had been placed on the trial call of Judge Lewis. In its brief the State argues that “if the defendant seriously wishes to maintain that he did not know the identity of his trial judge until March, he cannot also maintain that he in good faith moved for substitution of ‘that judge’ [a reference to the language of section 114 — 5(a)] in February.” Our research has not disclosed any case involving, as does the one at bar, the filing of a motion for substitution of judge for prejudice in anticipation of a defendant’s actual knowledge of the fact that his cause has been assigned to that particular judge. Defendant relies upon People v. Evans (1971), 1 Ill. App. 3d 158, 273 N.E.2d 71, saying of that case, “No evidence that the defendant had actual knowledge of the assignment appears in the opinion.” Unfortunately, we cannot determine from the statement of facts made in Evans precisely what did occur there. Bearing in mind the rule of liberal construction of the venue provisions in order to protect the guarantee of a fair and impartial trial, we can think of no reason why a defendant, who believes a particular judge is prejudiced against him, should not be permitted to exercise his right to automatic substitution of that judge in anticipation of the defendant’s learning that his cause has, in fact, been assigned to him. A defendant is permitted to exercise the right to automatic substitution but twice at most. If he believes that a certain judge is prejudiced against him and he wishes to exercise that right in spite of the risk that his cause might not, in fact, be assigned to the judge named and that he might thereby misapply his only opportunity, perhaps, for automatic substitution, we see no reason why he should not be permitted to do so. The liberal construction called for in the application of the venue provisions aside, elemental justice requires that no defendant should be forced to stand trial before a judge whom he believes, for whatever reason, to be prejudiced against him.

We have considered the State’s further contention that the trial court could have concluded that defendant’s motion was made for purposes of delay and find it without merit. We have also read the transcripts of proceedings of all matters considered by the trial court prior to the hearing at which defendant’s motion for substitution was considered, including the transcript of the hearing on defendant’s motion for continuance held but a few days before the one held on the motion for substitution, and have found nothing in the record to suggest that the trial court indicated in any way at any time his views on the merits of defendant’s cause.

For the foregoing reasons we hold that defendant’s motion for substitution of judge for prejudice was timely filed. The denial of the motion was therefore error and the subsequent action of the trial court void for lack of jurisdiction. Thus, the judgment of the trial court must be reversed and the cause remanded for a new trial before another judge.

Although the State contends that the issue with respect to the motion for substitution was waived for review by virtue of defendant’s failure to include it in his post-trial motion, the State overlooks the fact that questions of jurisdiction may be raised at any time. A jurisdictional defect having occurred, the State’s point is not well taken.

With regard to the question raised bearing ultimately on the evidentiary question of whether the crime of intimidation here alleged was committed exclusively through defendant’s use of a gun, for guidance upon retrial we refer the parties and the trial court to the recent case of People v. Donaldson (1982), 91 Ill. 2d 164, holding that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges.

We do not, of course, consider the constitutional question presented in view of the fact that any such consideration would be undertaken in an advisory capacity only, plainly impermissible as to constitutional questions.

Reversed and remanded.

HARRISON and KASSERMAN, JJ., concur.