author: JUSTICE LONDRIGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN JACKSON, Defendant-Appellant.
    Fourth District
    No. 17295
    Opinion filed April 15, 1982.
    Rehearing denied April 30, 1982.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.

      C. David Vogel, State’s Attorney, of Pontiac (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Defendant was charged by indictment with two counts of aggravated battery. He was found guilty by a jury and sentenced to a term of TA years’ imprisonment, the sentence to be served consecutively to his current 3-year sentences.

At trial, Ronald Salisbury testified that he was an employee of the Pontiac Correctional Center on December 11, 1980, assigned to the gymnasium. Salisbury had received a call earlier in the afternoon ordering him to “shake down” all inmates entering and leaving the gymnasium. About 2:30 p.m. Salisbury was involved in a confrontation with an inmate, Joe Lofton, who refused to be searched. Salisbury wrote a disciplinary “ticket” against Lofton and sent him to the cellhouse.

At 3:30 p.m., Salisbury blew his whistle to indicate to the inmates that it was time to leave the gymnasium. Salisbury blew his whistle first in the gymnasium area and then walked to the weight room and shouted for the inmates to leave. As Salisbury walked out of the weight room, he was struck in the back of the head by a metal object, later determined to be a barbell collar. Salisbury did not see who threw the collar. There were approximately 60 to 70 people in the gym and about 17 to 20 people in the weight room. Salisbury was taken to the hospital and received eight stitches to his head.

Donald Polizzi, a penitentiary investigator, testified that he went to the gymnasium shortly after the attack on Salisbury. The officers had locked the doors to prevent anyone from leaving. Polizzi and the other officers interviewed 59 inmates who were in the gymnasium area.

Polizzi testified that Joe Lofton’s nickname was “China Joe” and that Lofton was a lieutenant in the Vice Lords, a prison gang. The other large gang at Pontiac is the Disciples. Over objection, Polizzi testified that defendant was a “soldier” in the Vice Lords. Polizzi said that it was not uncommon for a gang officer to order a soldier to do something. The punishment for refusal to obey an order varies according to each gang, but could include physical harm to the inmate or harm to the inmate’s family caused by gang members outside the prison.

Eddie Taylor had been held at Pontiac between April or May of 1979 and December 1980. Taylor testified that he had been a member of a gang, the Black Gangsters Lynchmen, before his incarceration at Pontiac.

On December 11, 1980, Taylor was lifting weights in the weight room. He saw defendant throw a barbell collar at a correctional officer, striking the officer in the back of the head. Defendant jumped back inside the weight room and fled upstairs to the ping-pong room. Taylor told Polizzi that he would testify against the defendant. Two months later, Taylor was placed on work release. Taylor later violated his work release and had been confined to Joliet.

Taylor testified that the Disciples’ insignia was a fork and a six-pointed star, with some members wearing crossed pitchforks as an insignia. At the request of defendant’s counsel, Taylor revealed a tattoo of two crossed pitchforks on his interior right forearm. However, Taylor stated that his gang and the Disciples were “associated” and had very similar insignia. According to Taylor, the Vice Lords’ insignia was a “VL” with a five-pointed star and moon.

Kevin Scott testified that he and defendant were playing basketball in the gymnasium on December 11, 1980. Scott stated that they had played basketball from the time defendant came to the gym until they were taken out after Salisbury was struck. In response to a prosecution question, Scott said that he had never been a gang member, either in or out of prison.

Defendant testified that on December 11, 1980, he began playing basketball as soon as he got to the gymnasium and quit when the officers came in after Salisbury was injured. He did not throw anything at Salisbury. Defendant did not know “China Joe” and had never talked to Lofton.

In rebuttal, the State called Desi Martin. Martin was an inmate at Pontiac, serving time for deviate sexual assault and armed robbery. Martin was in the weight room when Salisbury was struck. Martin testified that defendant was not in the weight room when Salisbury was struck. Defendant had been in the weight room earlier, Martin testified, but Martin had not seen him holding a barbell collar.

Outside the presence of the jury, the State’s Attorney stated that he had been surprised by the testimony and had been told that Martin had seen defendant holding a weight collar 10 minutes before the attack on Salisbury. Over defendant’s objection, the State called Martin as a hostile witness.

Martin stuck to his story and denied that he had told the prosecutor and Lieutenant Polizzi that he had seen defendant holding the collar 10 minutes before the attack on Salisbury.

Assistant State’s Attorney Charles Frank, who was prosecuting the case, called himself as a witness and was questioned by another assistant State’s Attorney. Frank testified that, on two prior occasions, Martin had stated that he had seen defendant with a barbell collar in his hand. Defendant’s counsel asked the court to either strike Frank’s testimony or limit its application. The court agreed to limit the effect of the testimony.

The jury retired for deliberations at 11:23 a.m. At 6:15 p.m., the judge announced that the jury indicated it was having difficulty. The Prim instruction (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601) was given at 8 p.m. When the jury was still deadlocked at 10:30 p.m., the prosecution and defendant were both agreeable to either a mistrial or sending the jury home for the night. The trial court allowed the jury to return home and resume its deliberations the next morning.

The jury reached a verdict at 9:55 a.m. the following morning. Defendant was convicted on both counts.

Defendant contends that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in admitting evidence of defendant’s gang membership; (3) the trial court erred in allowing Desi Martin to be called as a hostile witness; (4) he was denied a fair trial because the prosecution questioned a defense witness about alleged gang membership without establishing a basis for the questions; and (5) the trial court erred in allowing the jury to go home after the case had been submitted and return the next day and resume deliberations.

Defendant argues that his guilt was not proved beyond a reasonable doubt because the credibility of the State’s chief witness, Eddie Taylor, was suspect. Defendant argued that Taylor’s credibility is suspect for several reasons: (1) Taylor was the only inmate in the gym who claims to have seen defendant hit Salisbury with the barbell collar; (2) Taylor lacks credibility because of his prior convictions for attempted burglary; and (3) Taylor is a member of a rival gang.

Defendant’s attack on Taylor’s credibility fails when the record is examined. It is certainly plausible that Taylor was the only person in the weight room who saw defendant throw the collar at Salisbury. The inmates would have been concentrating on their weight lifting and not the activities of other inmates. This is especially true where the defendant had made no prior threats against Salisbury.

Second, it is hard to see how any inmate-witness would not have a problem with credibility. Any inmate who testified would have at least one prior conviction or he would not be in prison.

Third, there is no evidence in the record to support defendant’s contention that Taylor was a member of a rival gang. No evidence was produced to show that the Disciples and Black Gangsters Lynchmen were rivals of the Vice Lords.

Questions of credibility are properly within the province of the trial court; a reviewing court will not substitute its judgment where the evidence is merely conflicting. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) Taylor’s testimony, if believed by the trier of fact, was sufficient to prove defendant guilty beyond a reasonable doubt. .

Defendant contends that the trial court erred in allowing testimony that defendant and Joe Lofton were members of the same gang. We disagree with the defendant and hold that the testimony was admissible.

In People v. DeSavieu (1973), 11 Ill. App. 3d 529, 297 N.E.2d 336, the prosecution theorized that the shooting of the victim was related to gang activity. The court found that testimony regarding defendant’s gang membership was admissible to show a motive for the attack.

In the case at bar, the State’s theory was that the defendant was ordered by Joe Lofton, his “superior” in the Vice Lords, to attack Salisbury because Salisbury had disciplined Lofton earlier that afternoon. Evidence of defendant’s gang membership was relevant to show that defendant had a motive to commit the aggravated battery on Salisbury.

Defendant next argues that the trial court erred in allowing Desi Martin to be declared a hostile witness and in allowing Martin to be impeached by the use of prior inconsistent statements. Also, defendant contends that the trial court compounded its error by allowing the assistant State’s Attorney trying the case to testify regarding Martin’s prior statement and by failing to provide the jury with a proper limiting instruction.

Supreme Court Rule 238 provides:

“If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination. The party calling an occurrence witness, upon the showing that he called the witness in good faith and is surprised by his testimony, may impeach the witness by proof of prior inconsistent statements.” (73 Ill. 2d R. 238.)

Rule 238 is applicable to two distinct situations: (1) the genuinely hostile and uncooperative witness; and (2) the occurrence witness whose testimony surprises and does affirmative damage to the case of the party calling him. (See Sellers v. Hendrickson (1977), 46 Ill. App. 3d 549, 360 N.E.2d 1235.) An occurrence witness called in good faith may be impeached by the use of his prior inconsistent statements if his testimony was both surprising and affirmatively damaging to the party calling him. E. Cleary & M. Graham, Handbook of Illinois Evidence §607.4 (3d ed. 1979).

Martin was an occurrence witness. While he did not claim to see the offense happen, i.e., he was not an eyewitness, he was present at the time and place the offense occurred. (See, e.g., O’Boyle v. Greco Excavating Co. (1972), 9 Ill. App. 3d 234, 292 N.E.2d 90.) Martin’s testimony was surprising to the State. It also affirmatively damaged the State’s case because Martin testified that he was present at the time and place of the offense and that defendant was not there. If defendant was not present when the offense took place, it would have been impossible for him to have committed the offense charged. The effect of Martin’s testimony was to strengthen defendant’s case and weaken the State’s case. Therefore, the prosecution was entitled to impeach Martin with evidence of his prior inconsistent statements.

Defendant argues that the impeachment was improper because the assistant State’s Attorney trying the case took the stand and testified regarding Martin’s prior statements and that the trial court failed to properly instruct the jury that the prior statements could be considered only as effecting the credibility of the witnesses.

Generally, testimony by the prosecuting attorney is not encouraged. This reluctance to allow testimony by the prosecutor stems from the belief that jurors will give greater weight to the testimony of a prosecutor than testimony of an ordinary citizen because of the prosecutor’s official position. (People v. Gendron (1968), 41 Ill. 2d 351, 243 N.E.2d 208.) Such testimony is allowed when the trial court, in its discretion, finds that the testimony is necessary. People v. Langdon (1980), 91 Ill. App. 3d 1050, 415 N.E.2d 578.

In this case, Charles Frank was the only person who knew whether Martin had made certain prior inconsistent statements. His testimony was necessary to impeach Martin. The trial court did not abuse its discretion in allowing Frank’s testimony.

Following Mr. Frank’s testimony, defendant moved to strike Frank’s testimony or to limit its application. The prosecution concurred that a limiting instruction was necessary. The court stated, in the presence of the jury, that it would “limit the testimony of Mr. Frank to being impeaching of the witness Martin who preceded him on the stand.” Defendant did not tender a written instruction on this point, but both counsel for defendant and the prosecution mentioned the limited use that could be made of Mr. Frank’s testimony.

The trial court’s oral instruction and the statements made by counsel in their closing arguments were sufficient to apprise the jury of the limitations upon their consideration of Frank’s testimony. Furthermore, defendant has shown no evidence of prejudice resulting from the instruction on this point.

Defendant contends that he was denied a fair trial where the prosecution questioned Kevin Scott about his gang affiliation without a good-faith basis for believing that the witness was a gang member.

In People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353, the supreme court reversed defendant’s conviction for murder and remanded for a new trial where the prosecution made several insinuations of misconduct in its cross-examination of defense witnesses and then failed to produce rebuttal witnesses when the defense witnesses had denied the misconduct. Defendant did not waive the error by failing to object when the questions were asked; he preserved the error by moving for a mistrial at the close of all the evidence.

In the present case, defendant did not object to the testimony, did not move for a mistrial at the close of all the evidence and failed to include the alleged error in his post-trial motion. Under these circumstances, any alleged error is waived. Even if defendant had properly raised his objections to the testimony, an examination of the record reveals that any error was harmless beyond a reasonable doubt.

Finally, defendant argues that the trial court erred in allowing the jury to go home after the case had been submitted to them and return the next day and resume their deliberations.

Section 115 — 4(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(1)) provides:

“When the jury retires to consider its verdict an officer of the court shall be appointed to keep them together and to prevent conversation between the jurors and others. Upon agreement between the State and defendant or his counsel the jury may seal and deliver its verdict to the Clerk of the court, separate, and then return such verdict in open court at its next session.”

Defendant contends that the trial court’s decision to allow the jury to go home at night and return and resume its deliberations in the morning was a violation of section 115 — 4(1). Defendant cites the case of People v. Ritzert (1974), 17 Ill. App. 3d 791, 308 N.E.2d 636, as authority for its position.

In Ritzert, defendant was convicted of driving while intoxicated. At 4:50 p.m. the jury retired to consider its verdict. At 9 p.m. no verdict had been reached. The court requested counsel to agree on a proper procedure: should a mistrial be declared or should the jury be sent home for the night and ordered to resume deliberations in the morning? Defendant wanted the mistrial, the State wanted to send the jurors home. The judge opted to send the jury home. When the jury returned the next morning, defendant objected to the procedure. The trial court noted that no objection was made when the jury was released.

On appeal, the Second District reversed defendant’s conviction. The court indicated, in dicta, that the requirements of subsection (l) could not be waived by agreement of the parties.

“Defendant’s failure to object to the separation is in this instance of no consequence. Not only does the record clearly negate any implied agreement but the agreement sought was not that which is permitted under the statute where it is only after the jury has concluded deliberations and sealed their verdict that they may separate by agreement of counsel.
Aware that the federal courts are neither governed by statute or common law on the issue, we nevertheless take cognizance that most circuits have held that separation of the jury during deliberation is not per se reversible error or a lack of due process. We empathize with the more enlightened federal practice, but adoption of such procedure in Illinois lies with the legislature. Subsection (Z) clearly and unambiguously requires that a jury be kept together during deliberations prior to reaching a verdict. The trial court, without any support in the law, committed error in allowing the jury’s separation during deliberation.” 17 Ill. App. 3d 791, 795-96, 308 N.E.2d 636, 639.

We choose not to follow the dicta in Ritzert concerning the ability of a defendant to knowingly and intelligently waive the statutory requirement found in 115 — 4(Z). In the case at bar, defendant, through his attorney, agreed to allow the jury to go home for the evening. Defendant did not object the following morning when the jury returned and resumed its deliberation. Defendant did not raise the issue until his post-trial motion. Defendant’s counsel stated that he knew a jury separation was improper when he agreed to it, but that he thought allowing the jury to go home was “worth the gamble” because the jury might return a verdict of not guilty. Defendant did not allege or present evidence that the jurors were subjected to any improper influences during the period of their separation.

In People v. Kenzik (1956), 9 Ill. 2d 204, 137 N.E.2d 270, defendant was charged with murder. He proceeded pro se. During the course of the trial, the trial judge explained to the defendant that he had a right to have the jurors kept together during the trial. However, defendant assented to the separation of the jury during the trial. Defendant was found guilty and sentenced to death.

On appeal, the supreme court reversed and remanded. The court held that defendant had not made a knowing and intelligent waiver of his rights and that these elements must be present to constitute an effective waiver. We read Kenzik as supporting the availability of waiver in these situations, so long as the purported waiver is knowingly and intelligently made.

Constitutional rights may be waived by a defendant if the waiver is knowingly and intelligently made. (See, e.g., Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232.) A statutory right, such as the right to a preliminary hearing or defendant’s right to be present at trial, may also be waived. (People v. Williams (1966), 36 Ill. 2d 194, 202, 222 N.E.2d 321; People v. Krison (1978), 63 Ill. App. 3d 531, 380 N.E.2d 449.) We find that the facts and circumstances in this case support a finding that defendant, through his attorney, knowingly and intelligently waived any claim of error regarding the separation of the jury.

The judgment of the circuit court of Livingston County is affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    DANNY J. PEDIGO, d/b/a Pedigo Sod Company, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    Fourth District
    No. 17332
    Opinion filed April 21, 1982.
    Rehearing denied May 17, 1982.

      Danny J. Pedigo, of Springfield, for appellant, pro se.

    Tyrone C. Fahner, Attorney General, of Chicago (Edward M. Kay, Assistant Attorney General, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Pedigo, a pro se plaintiff, appeals the order of the circuit court upon administrative review which affirmed the finding of the Department of Revenue that he was liable for arrears of taxes under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.), the Service Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439. 101 et seq.), the County Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 34, par. 409.1), and the County Service Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 34, par. 409.2) and affirmed the Department’s assessment of taxes due.

On June 1,1978, the Department of Revenue issued a “Notice of Tax Liability” which advised Pedigo of the assessment of the several taxes for the period January 1,1976, through December 31,1978. The Department of Revenue held a hearing upon request for review on August 21,1979.

At the hearing, the Department offered into evidence, without objection, documents entitled “Correction of Return or Determination of Tax Due” showing amounts computed by the Department’s auditor, Larry Lascody, to be due arising out of plaintiff’s business as a retail sod dealer. Lascody testified that in using taxpayer’s sales invoices, purchase invoices, and sales journal, he had determined which sales of plaintiff’s sod were retail, which were sold for resale, which were sales of services, and which were sold to tax-exempt purchasers such as charitable entities and governmental bodies. Lascody related that the retail sales had no installation or freight charge on the invoices and were simply identified as “pickup” by the purchasers. Applying the categorical percentage of each type of taxable sale to taxpayer’s gross receipts listed on his Federal tax returns and including penalties, taxpayer was issued a final assessment of $12,546.26 for State retailers’ and service occupation taxes and $3,136.58 for county retailers’ and service occupation taxes.

During the administrative hearing, plaintiff stated that he was in the business of growing and selling sod in the central Illinois area and claimed exemption from tax by virtue of section 1 of “An Act for the protection of farmers, fruit-growers, vine growers and gardeners” (Ill. Rev. Stat. 1979, ch. 5, par. 1), which provides:

“Every farmer, fruit and vine grower, and gardener, shall have an undisputed right to sell the produce of his farm, orchard, vineyard and garden in any place or market where such articles are usually sold, and in any quantity he may think proper, without paying any state, county or city tax, or license, for doing so, any law, city or town ordinance to the contrary notwithstanding: Provided, that the corporate authorities of any such city, town or village may prohibit the obstruction of its streets, alleys and public places for any such purpose: And, provided further, that nothing in this Act shall be so construed as to authorize the sale of spirituous, vinous or malt liquors, contrary to laws which now are or hereafter may be in force prohibiting the sale thereof.”

Plaintiff also offered into evidence a letter from the Illinois Bureau of Plant and Apiary Protection which notified taxpayer that his business for labor statistics purposes would be classified as a farming operation. Plaintiff stated that the sod was sold for use by the purchasers in landscaping and indicated he did, on occasion, provide installation services for the purchasers. Plaintiff did not claim his sales were all for resale, but continued to assert that he was a farmer and exempt from taxation by virtue of section 1 of the above act.

In the Department’s findings, the hearing officer rejected plaintiff’s exemption and affirmed the assessment which was approved by the director on January 10, 1980. Plaintiff thereafter sought review in the circuit court of the Department’s finding which court denied the relief and affirmed the Department’s assessment.

On appeal, plaintiff claims that the notice of hearing before the Department of Revenue violated section 10 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1010); that the Department has no jurisdiction to hold a hearing to determine if a potential taxpayer is within the scope of the subject tax act; that the Department failed to prove he was a retailer engaged in selling tangible personal property for use or consumption; that section 1 of “An Act for the protection of farmers, fruit-growers, vine growers and gardeners” (Ill. Rev. Stat. 1979, ch. 5, par. 91) exempts him from taxation; that the circuit court heard new and additional evidence in its hearing on administrative review; and that the findings of fact of the Department’s hearing officer were not based upon matters in evidence in violation of section 11 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1011).

Plaintiff first contends that section 10 of the Illinois Administrative Procedure Act was not complied with in the form and content of notice which was sent to him by the Department of Revenue advising him of the contested hearing. Section 11a of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 450a) expressly adopts the Illinois Administrative Procedure Act in administrative proceedings of the Department. Under section 10 of the Illinois Administrative Procedure Act, the notice of a hearing in a contested case must contain:

“1. a statement of the time, place and nature of the hearing;
2. a statement of the legal authority and jurisdiction under which the hearing is to be held;
3. a reference to the particular Sections of the statutes and rules involved; and
4. except where a more detailed statement is otherwise provided for by law, a short and plain statement of the matters asserted.” (Ill. Rev. Stat. 1979, ch. 127, par. 1010(a).)

From a comparison of the statutory requirements with the notice sent to the plaintiff and included in the record, it appears that any deficiency of the Department’s notice concerned its failure to allege that assessment was sought under the County Service Occupation Tax Act, and to refer to Rule 4 of the Department of Revenue’s Retailers’ Occupation Tax Rules. Despite this omission in the notice, we note that plaintiff failed to object at any point to the notice issued by the Department below. As such, any claim by plaintiff that the notice did not comply with section 10 will not be considered inasmuch as this matter has been waived by plaintiff’s failure to object to the omission of the aforementioned items. St. James Temple of A. O. H. Church of God, Inc. v. Board of Appeals (1968), 100 Ill. App. 2d 302, 241 N.E.2d 525, cert. denied (1969), 395 U.S. 946, 23 L. Ed. 2d 464, 89 S. Ct. 2019.

Plaintiff next argues, without citation to authority, that it was improper for a hearing to be held until it was determined that he was subject to tax, and that no authority to determine jurisdiction is given to the Department in the Retailers’ Occupation Tax Act. According to plaintiff, a declaratory judgment action must first be maintained by the Department to determine if the potential taxpayer is a retailer before an assessment and hearing on a contested matter can be conducted.

Plaintiff’s argument that the Department of Revenue has no jurisdiction to hold a hearing until such jurisdiction has been previously determined is without merit and would, if sustained, reduce the powers of the Department to a nullity since taxation would be defeated by a mere claim by potential taxpayers that they are not retailers and are not selling tangible personal property, or doing some other act to bring them within the scope of a valid taxing act. In the area of jurisdiction of courts, it is well established that courts have power to determine the necessary basis for its own jurisdiction when such issue is presented. (Baldwin v. Iowa State Traveling Men's Association (1931), 283 U.S. 522, 75 L. Ed. 1244, 51 S. Ct. 517; People ex rel. Adamowski v. Dougherty (1960), 19 Ill. 2d 393, 167 N.E.2d 181.) Again, under the terms of section 5 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 444), the Department of Revenue has, by implication, the power to make such determination. Section 5 provides in part:

“In case any person engaged in the business of selling tangible personal property at retail fails to file a return, the Department shall determine the amount of tax due from him according to its best judgment and information, which amount so fixed by the Department shall be prima facie correct and shall be prima facie evidence of the correctness of the amount of tax due, as shown in such determination.” (Ill. Rev. Stat. 1979, ch. 120, par. 444.)

Moreover, under the Act, the Department is given the power to inspect taxpayers’ records and books to determine if tax has been properly remitted (Ill. Rev. Stat. 1979, ch. 120, par. 446). In Benson v. Isaacs (1961), 22 Ill. 2d 606, 177 N.E.2d 209, the Department of Revenue appealed from an order of the circuit court dismissing a petition to dissolve an injunction restraining them from collecting retailers’ occupation taxes from certain tool and die manufacturers. Though the court upheld the order refusing to dissolve the injunction, the court noted that the Department was free to employ its investigative and subpoena powers for the purposes of determining the extent to which the taxpayers were engaged in a business subject to taxation. Applying these authorities, we believe the Department may determine its own authority to assess the tax and that it properly decided the latter issue to which we will next turn.

Plaintiff next asserts that the Department of Revenue failed to prove that he was subject to tax under the Retailers’ Occupation Tax Act and the County Retailers’ Occupation Tax Act since no evidence was introduced to show a sale by him of tangible personal property at retail. The Department, citing Copilevitz v. Department of Revenue (1968), 41 Ill. 2d 154, 242 N.E.2d 205, Quincy Trading Post, Inc. v. Department of Revenue (1973), 12 Ill. App. 3d 725, 298 N.E.2d 789, and Howard Worthington, Inc. v. Department of Revenue (1981), 96 Ill. App. 3d 1132, 421 N.E.2d 1030, argues that through its corrected returns and testimony of the field auditor, it has established a prima facie case that the taxpayer was engaged in the business of selling tangible personal property at retail, and that plaintiff has failed to overcome the presumption of liability.

Taxation of retailers under the Retailers’ Occupation Tax Act and the County Retailers’ Occupation Tax Act is imposed upon persons engaged in the business of selling tangible personal property at retail. (Ill. Rev. Stat. 1979, ch. 120, par. 440; Ill. Rev. Stat. 1979, ch. 34, par. 409.1.) Since the County Retailers’ Occupation Tax Act incorporates by reference the provisions of the Retailers’ Occupation Tax Act, both will be collectively referred to as the Act.

Under the Act, a sale at retail is defined as follows:

“ ‘Sale at retail’ means any transfer of the ownership of or title to tangible personal property to a purchaser, for the purpose of use or consumption, and not for the purpose of resale in any form as tangible personal property to the extent not first subjected to a use for which it was purchased, for a valuable consideration * * Ill. Rev. Stat. 1979, ch. 120, par. 440.

Taxpayer’s argument that the Department failed to establish sales of tangible personal property at retail must fail. Under the Act, all sales of tangible personal property are taxable unless evidence identified with taxpayer’s books and records are introduced by him and establish the reason for the claimed assertion of nonliability. (Quincy Trading Post.) This presumption is clearly the intendment of section 7 of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 446), which provides, in part:

“It shall be presumed that all sales of tangible personal property are subject to tax under this Act until the contrary is established, and the burden of proving that a transaction is not taxable hereunder shall be upon the person who would be required to remit the tax to the Department if such transaction is taxable. * # e”

We note the interpretation of section 7 in Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 413 N.E.2d 370, where the issue was whether a wholesaler, who admittedly did not make sales at retail, was subject to Retailers’ Occupation Tax if he failed to introduce evidence of compliance with section 2c of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 441c), which requires the seller to retain documentation of a resale transaction. The court there held that such a tax could not be so imposed even though no evidence was introduced by the taxpayer to rebut the prima facie case of the Department, and to document the sales for resale as required by section 2c. The importance of Dearborn, however, lies in the court’s statement that “the reference in section 7 to ‘all sales of tangible personal property’ must be construed to mean sales by persons engaged in the business of making such sales at retail.” (82 Ill. 2d 471, 480, 413 N.E.2d 370, 374.) Though the effect of this language is not clear, the decision does indicate that the presumption arising by virtue of section 7 will not relieve the Department of proving that the taxpayer in queston is a retailer of personal property. We do not, however, interpret this decision so as to make it incumbent upon the Department to prove the character of each sale of taxpayer, despite the broad language of the Dearborn court. This interpretation is given some support by the fact that the court, although expressly mentioning, did not overrule Copilevitz wherein it was held that a retail grocer’s failure to admit evidence identified with his books and records to establish a nontaxable resale would not overcome the Department’s prima facie assessment of liability for these claimed resale sales. We therefore conclude that once some evidence has been introduced to establish that taxpayer makes retail sales in general, the taxpayer will then have the burden of overcoming the prima facie case with evidence which indicates that the alleged retail sales were, in fact, for resale, or for some other reason, a nontaxable transaction or which shows that no retail sales were made and, in fact, no retail business exists. Accord, Howard Worthington, Inc.

Looking at the evidence offered by the Department and plaintiff at the administrative hearing, it becomes clear that plaintiff was engaged in making retail sales. Plaintiff admitted to numerous individual sales and that his sales were used by the purchasers for landscaping, i.e., for use; further, it is clear that taxpayer was selling tangible personal property. (See Swain Nelson & Sons Co. v. Department of Finance (1937), 365 Ill. 401, 6 N.E.2d 632.) If plaintiff believed that more sales should have been allocated to the resale characterization or to other nontaxable categories used by the field auditor who examined his books and records, then it was incumbent upon him to present evidence identified with his books and records to show that fact. (Quincy Trading Post, Inc.) Plaintiff’s oral claim that he is not a retailer, absent some specific evidence to show this claimed assertion, is insufficient to overcome the substantially documented prima facie case presented by the Department. We cannot conclude that the Department’s findings that plaintiff was a retailer selling tangible personal property were against the manifest weight of the evidence. Marion Power Shovel Co. v. Department of Revenue (1969), 42 Ill. 2d 13, 244 N.E.2d 598.

Having concluded that taxpayer was engaged in the business of selling sod at retail, we next consider whether Pedigo is exempt from taxation by virtue of section 1 of “An Act for the protection of farmers, fruit-growers, vine growers and gardeners”, previously quoted.

From the date of this statute’s enactment in 1874, no reported case has considered the scope of the exemption granted in relation to taxation under the Retailers’ Occupation Tax Act or similar taxing enactments. Language in other cases, and the holding in Winter v. Barrett (1933), 352 Ill. 441, 186 N.E. 113, leads us to conclude, however, that the Act in question does not apply to the sales in the case at bar.

In Hewitt v. People (1899), 87 Ill. App. 367, aff'd (1900), 186 Ill. 336, 57 N.E. 1077, the defendant was convicted of 38 counts of selling intoxicating liquor without a license in violation of the then applicable dram-shop act. The defendant, a coal mine operator, had grown apples on his farm, made intoxicating cider from the apples, and sold some to the coal miners working for him. Defendant there argued that the act exempted him from obtaining a license to sell such cider since he grew the apples from which the cider was made on his own farm. In affirming the conviction, the appellate court rejected the contention that the act exempted a retail seller, which plaintiff admitted that he was, and alternatively concluded that intoxicating liquor was within the spirit of the last sentence of the act, which denied the exemption to sales of spirituous, vinous, or malt liquor. The court stated:

“It is apparent to our minds that the protection intended by the act is limited to farmers, fruit growers, vine growers, and gardeners ° ° °. It was not intended to protect a retail merchant, grocer, or keeper of a drinking establishment in the sale of products which the ordinary vender must have a license to sell, simply because he produced them from his own farm, orchard, or vineyard.” (Emphasis added.) (87 Ill. App. 367, 369-70.)

Interpretation of the Act to limit its application to nonretailers is further reinforced by the decision in Winter. At issue in that case was the constitutionality of the first Retailers’ Occupation Tax Act, which contained the following definition of tangible personal property:

“ ‘Tangible personal property’ does not mean or include farm products or farm produce sold by the producer thereof 0 ° (1933 Ill. Laws 938.)

This exemption from the class of retailers subject to the tax was contended by the plaintiffs in Winter to be violative of section 1 of article IX of the 1870 Illinois Constitution which, like section 2 of article IX of the 1970 Illinois Constitution, requires taxation to be uniform as to the objects and the class sought to be taxed. In Winter, the court drew a distinction between farmers who normally sold their produce in gross, such sales not being sales to consumers, and farmers who, though they grow their own products, sell principally to consumers at retail. The supreme court held that while the former would not be included in the class subject to the tax, the exclusion of the latter class from the object of taxation was violative of the requirement of uniformity of taxation. The court stated:

“It is different, however, with the producer of farm products and produce, such as vegetables and the like, who not only conducts the business of producing such produce, of which sales generally may be an incident, but who also conducts the business of selling his produce only to consumers at retail. It is a matter of common knowledge that there are many so engaged. He thus conducts the separate business of selling at retail in competition with other retail dealers in such commodities. * * * He is of the class to which the act applies, just as the druggist who compounds and produces the proprietary remedies which he sells at retail is in that class, and so far as the act attempts to exclude him from its provisions it is not uniform in its application to the class on which it operates and cannot be sustained.” 352 Ill. 441, 463, 186 N.E. 113,122.

The nature of the tax was further explicated in Reif v. Barrett (1933), 355 Ill. 104, 188 N.E. 889, where plaintiff contended that the tax was unconstitutional as a tax upon property and a form of income tax. The court concluded that the opinion in Winter had determined that the tax was an occupational tax and said, in summary:

“In the case at bar, however, the subject of the tax is the privilege to engage in the business of selling tangible personal property to purchasers for use or consumption.” (355 Ill. 104, 117, 188 N.E. 889, 895.)

Such interpretation is currently reiterated in Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 477, 413 N.E.2d 370, 373, where the court, in discussing Reif, said:

“[A]nd over the years the court has repeatedly expressed the view that it is not the sale of property but the business of selling it for use or consumption which is the subject of the tax. [Citations.]”

While Pedigo may be considered to be a farmer, upon this record it is clear that he engages in selling tangible personal property for use and consumption, and that section 1 of “An Act for the protection of farmers, fruit-growers, vine growers, and gardeners” does not exclude or exempt him from the tax upon such sales. Pedigo’s confusion as to the applicability of the latter Act arises from an apparent assumption that farmers may not be retailers. A comparable assumption was presented in Franklin County Coal Co. v. Ames (1934), 359 Ill. 178, 194 N.E. 268. There a number of coal mining operators sought to enjoin the collection of the tax. Although such operators sold coal at the mine for use or consumption, they argued that their business was producing coal rather than selling coal, and that they sold at wholesale. Finding that the record disclosed a large percentage of sales were to consumers, the court referred to the opinion in Winter v. Barrett, and stated:

“We recognized that the business of farming includes the business of producing, but held that farmers who engage in the business of selling their produce to consumers are engaged in the business of selling tangible personal property at retail, just as a druggist is who compounds his own remedies for sale at retail to his customers. Both would be conducting the sort of business covered by this act, and the fact that both were producers does not change that part of their business which is made up of such sales. Nor does the fact that the appellants are producers — that is, engaged in the business of mining and preparing coal for sale — have any bearing upon that part of their business which has to do with the sale of their product for use or consumption.” (359 Ill. 178, 182-83, 194 N.E. 268, 270.)

Accordingly, we must conclude that Pedigo is not exempt from the tax where the evidence shows that sales at retail are not occasional or incidental, but constitute a substantial part of his business.

Plaintiff next argues that the circuit court denied him the right to object to, and heard, new and additional evidence presented by the Department in review of the assessment in the circuit court contrary to section 11 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 274), which provides as follows:

“Scope of review. Every action to review any final administrative decision shall be heard and determined by the court with all convenient speed. The hearing and determination shall extend to all questions of law and of fact presented by the entire record before the court. No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Emphasis added.)

Specifically, plaintiff contends that the provisions were violated by certain factual arguments made by the Department in their brief presented to the circuit court. The only arguably “new” evidence heard by the circuit court on administrative review consisted of a definition from Webster’s Dictionary of a farmer, farm, and a producer. As for the definitional matters contained in the Department’s brief, this was not “new evidence” of the character intended to be excluded by the statute, but was properly considered by the court as merely legal argument by the Department on the validity of the findings of the administrative agency below. We believe that the evidence intended by the rule to be excluded from consideration is documentary or testimonial evidence, and not mere legal argument by the Department in their brief.

Plaintiff’s final argument is that the Department’s findings of fact were not based upon matters noted at the hearing as required by section 11(c) of the Illinois Administrative Procedure Act which provides:

“(c) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.” (Ill. Rev. Stat. 1979, ch. 127, par. 1011(c).)

In the hearing officer’s recommendation of liability, he noted that Rule 4 of the Retailers’ Occupation Tax Rules was applicable to the imposition of tax on plaintiff’s business, although, as plaintiff notes, Rule 4 was not brought forth at the administrative hearing.

The reference to Rule 4 by the hearing officer, contrary to plaintiff’s assertion, arose in the discussion of the legal authority upon which the tax was based and was not mentioned nor relevant to the finding of facts of the hearing officer. Rule 4, as such, had nothing to do with the Department’s findings and would have been a proper subject for judicial notice in any event. (Sturm v. Block (1979), 72 Ill. App. 3d 306, 390 N.E.2d 912.) Accordingly, there was no error in the manner in which Rule 4 was considered by the hearing officer below in his findings of fact and conclusions of law.

Plaintiff has filed a supplemental brief seeking to present and argue asserted matters of fact and objections to items included in the audit as retail sales. The purported evidence and objections were never introduced into the record at the departmental hearing, and were not presented to the circuit court. These issues cannot now be argued upon intermediate review.

For the foregoing reasons, the decision of the circuit court striking and dismissing plaintiff’s complaint for administrative review and affirming the assessment by the Department of Revenue of Retailers’ and Service Occupation Taxes and County Retailers’ and Service Occupation Taxes is affirmed.

Affirmed.

GREEN, P. J., and MILLS, J., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL SPIEZIO et al., Defendants-Appellants.
    Second District
    Nos. 80-603, 80-604 cons.
    Opinion filed April 13, 1982.

      Mary Robinson, of State Appellate Defender’s Office, of Elgin, and Robert E. Davison, of State Appellate Defender’s Office, of Springfield, for appellants.
    Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendants, Michael and Vito Spiezio, were jointly tried by jury and convicted of burglary, and they were thereafter sentenced to 7 and 14 year terms of imprisonment respectively. The primary issue which we consider on their consolidated appeal is whether the admission in evidence of unrelated criminal conduct by defendants requires a new trial.

Defendants were charged together with David Fritz with the burglary of a residence owned by Donald Lazar who testified his home had been broken into between January 10 and 17, 1979, and some of his personal property had been stolen. Officer Nick Nickeas testified he and seven other officers were conducting a surveillance of defendants on January 11 and saw Michael Spiezio exit a vehicle, walk toward the Lazar residence and then return from the area of the residence to the vehicle. Among the other occupants of the vehicle were David Fritz and Vito Spiezio. Officer Nickeas further testified that on January 15 surveillance of defendants had resumed and he subsequently placed Michael Spiezio under arrest for auto theft and later arrested Vito Spiezio in a motel room, in which both defendants had been residing, where he was found in bed with a woman who did not share his surname. The officer testified that he searched defendant’s pants pocket and found a set of keys to the stolen vehicle and also that jewelry was found in the motel room which Donald Lazar identified as property taken from his residence in the burglary.

David Fritz, who had pleaded guilty to the burglary and was sentenced to probation, testified he and the Spiezios had burglarized the Lazar residence on January 11. He stated Michael initially checked out the target home, while he and Vito waited in their car, and they thereafter left the area. A few hours later they returned, broke a window with the barrel of a pistol, again left and then later returned to enter the home and remove certain property. The witness was impeached by his guilty plea in this case, two drug-related convictions in 1975 and an agreement with the Lake County state’s attorney’s office whereby another burglary charge against him would be dropped. There was also a pending charge against Fritz in Cook County, but the trial court declined to allow defendants to cross-examine him with respect to that charge.

Defendants sought to call their sister to testify in trial as an alibi witness, but she was not present in court. Defense counsel learned she had apparently gone to a hospital and moved for a continuance, stating the witness would testify she was with defendants during the day and evening of January 11. The continuance was denied. Michael Spiezio then testified that he and Vito had been with their sister at the time David Fritz had stated the burglary was committed and that Fritz had given them some property taken from Lazar’s residence in payment of a debt.

We consider first whether defendants were denied a fair trial by the introduction of evidence linking them to the unrelated theft of a motor vehicle.

Evidence of collateral crimes for which an accused is not on trial is inadmissible if relevant merely to establish propensity to commit criminal acts. (People v. Romero (1977), 66 Ill. 2d 325, 330, 362 N.E.2d 288, 290; People v. Harris (1980), 91 Ill. App. 3d 112, 114, 414 N.E.2d 755, 757.) The rationale for this rule is that such evidence overpersuades the trier of fact, which is likely to convict the defendant merely because of feelings he is a bad person deserving punishment rather than on the basis of facts related to the offense for which he is on trial. (People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 242; People v. Martinez (1980), 86 Ill. App. 3d 486, 490, 408 N.E.2d 358, 361.) Well-recognized exceptions to the rule exist, and other-crimes evidence will be admitted if relevant to demonstrate knowledge, intent, motive, design, plan, identification or modus operandi. (E.g., People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489, 492-93.) Such evidence will not be admitted, however, if the grounds for establishing its relevance are speculative. People v. Lindgren (1980), 79 Ill. 2d 129, 140, 402 N.E.2d 238, 244.

While the trial court instructed the jury in the present case it should consider the other-crimes evidence for purposes relating to identification and the presence of defendants, the State does not suggest what relevance the evidence had to these issues in this case. There was no showing the stolen automobile was used in the commission of the burglary nor were the proceeds from it found in the vehicle. Instead, the record reflects the offenses were totally separate in execution and would not therefore support admission of the collateral offense evidence and the instruction at trial on these grounds. This is especially true because defendants could have been placed at the scene of the burglary, and were by Fritz’ testimony, without reference to the unrelated car theft. See People v. Lindgren (1980), 79 Ill. 2d 129, 139-40, 402 N.E.2d 238, 243; People v. Carlson (1981), 98 Ill. App. 3d 873, 876, 424 N.E.2d 968, 971; see also People v. Copeland (1978), 66 Ill. App. 3d 556, 384 N.E.2d 391.

The State suggests an additional exception to the rule excluding other-crimes evidence applies where evidence of another crime is offered as part of a narrative of a defendant’s arrest to impart meaning to an otherwise unexplained appearance by police. (See People v. Davis (1981), 93 Ill. App. 3d 187, 416 N.E.2d 1179; People v. Schubert (1975), 28 Ill. App. 3d 599, 329 N.E.2d 23; People v. Bolton (1974), 18 Ill. App. 3d 512, 310 N.E.2d 22, appeal denied (1974), 56 Ill. 2d 588; People v. Robinson (1968), 98 Ill. App. 2d 285, 240 N.E.2d 397.) The State argues defendants’ arrests for burglary would otherwise appear fortuitous, thereby confusing the jury, and it was properly allowed to show the motor vehicle theft as justification for the arrests which ultimately uncovered proceeds of the burglary. Defendants reply that possible jury confusion cannot alone justify admitting otherwise improper evidence, especially when the court could merely have instructed it not to speculate as to the reasons for defendants’ arrests.

We consider the vitality of the narrative of arrest exception under the circumstances of this case to be questionable in light of People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238. There the supreme court narrowed the scope of the exception relating to continuing narratives of crime to require that the other crime not be “a distinct crime undertaken for different reasons at a different place at a separate time.” (79 Ill. 2d 129, 140, 402 N.E.2d 238, 243.) Even prior to Lindgren, the courts of this State did not apply a narrative of arrest exception where the other crime was one which was wholly unrelated to the offense for which the accused was on trial. (See People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773; People v. Miller (1975), 31 Ill. App. 3d 115, 333 N.E.2d 264, appeal denied (1975), 61 Ill. 2d 599; People v. Jenkins (1973), 10 Ill. App. 3d 166, 294 N.E.2d 24.) People v. Davis (1981), 93 Ill. App. 3d 187, upon which the State relies, also states the exception applies only when the investigatory procedures involve an integral part of the narrative of an arrest and did not then permit details of the collateral offense to be introduced (93 Ill. App. 3d 187, 191-92, 416 N.E.2d 1179, 1182).

In this case there was no showing made that the matter of the stolen vehicle was anything but a separate crime undertaken at a different place and time not related to the burglary for which defendants were being tried; it was, therefore, irrelevant. We find it was error for the trial court to have admitted this evidence in the joint trial of defendants.

The erroneous admission of evidence of other crimes carries a substantial risk of prejudice and ordinarily calls for reversal. (E.g., People v. Lindgren (1980), 79 Ill. 2d 129, 140, 402 N.E.2d 238, 244.) In this case defendants’ conviction must be overturned unless the record affirmatively shows the error was not prejudicial (see People v. Stadtman (1974), 59 Ill. 2d 229, 319 N.E.2d 813), the test being whether the properly admitted evidence is so overwhelming that no fairminded jury could have voted for acquittal (People v. Lindgren (1980), 79 Ill. 2d 129, 141, 402 N.E.2d 238, 244; People v. Tranowski (1960), 20 Ill. 2d 11, 17, 169 N.E.2d 347, 350, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290). Here, as in Lindgren, the credibility of the witnesses as viewed by the jury was of crucial importance. The only occurrence witness, Fritz, had been originally charged as defendants’ accomplice and received leniency in his plea negotiations with the State. Moreover, the defense sought to place sole blame for the burglary upon Fritz. We conclude that the references to the other crime made in this joint trial were not harmless and defendants must be given a new trial.

We will also address other claimed errors which might arise on retrial.

Officer Nickeas testified that when Vito Spiezio was arrested he was in bed with a woman who was not his wife. We see no relevance in this evidence apart from an attempt to suggest defendant was lacking in moral character and upon timely request the court should exclude it. (See People v. Butler (1974), 58 Ill. 2d 45, 317 N.E.2d 35.) Additionally, repeated references were made to defendants’ having been under surveillance by police; this too might suggest they were suspected of unlawful activity and could be as damaging as the more specific references to the stolen vehicle. These potentially prejudicial characterizations of defendants’ conduct and morality should be excluded. (See People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528, appeal denied (1977), 66 Ill. 2d 641.) However, defendants’ argument that Fritz must not be permitted to testify the burglary was committed by breaking a window with a gun barrel is without merit. This fact is relevant to the issue of the method of entry and is properly admissible.

We need not now consider the other claims of error asserted by defendants as the judgments must be reversed as to each defendant and the causes remanded for a new trial.

Reversed and remanded.

HOPF and UNVERZAGT, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT GANGESTAD, Defendant-Appellant.
    Second District
    No. 80-584
    Opinion filed April 14, 1982.

      A. J. Marco, of Marco and Mannina, of Downers Grove, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Robert Anderson, Charles Emery, and Barbara A. Preiner, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

In a jury trial, the defendant, Robert Gangestad, was convicted of murder and thereafter sentenced to a term of 40 years in prison. He appeals, contending that he was not proved guilty of accountability for the murder beyond a reasonable doubt, that his motion to suppress his statement was improperly denied, that numerous trial errors deprived him of a fair trial, that the statute (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(2)) under which he was convicted of killing a fellow county jail inmate, providing the possibility of a death penalty, was unconstitutionally vague; and, alternatively, that his sentence was disparate.

Scott Rrunoehler, an inmate of the Du Page County jail, was found hanged in his cell on May 21,1979. The defendant, and two other inmates, William Hopson and James Devin, were indicted for his murder. (Hopson pled guilty pursuant to a plea bargain and was sentenced to 20 years; Devin was tried and sentenced to death.)

Several residents of the jail tier, #1 East, testified. They related that, on the 20th of May, 1979, a fight broke out between defendant and another inmate, over a bed; a sheet was bloodied; defendant and another tore the sheet, flushed part down a toilet; the remainder was later seen being braided by defendant and Devin. Later, defendant and Hopson were seen holding the victim down and Devin was seen with the braided sheet in his hand.

Defendant was holding the blanket, holding the victim to the bed. Hopson was holding the victim’s feet. Devin, Hopson and defendant picked up the victim, who was “folded” at the waist, in the blanket, dragging him to a picnic table in the common area. Devin ran the “rope” through the light fixture and defendant and Hopson boosted the victim and he was left hanging. Defendant, Hopson and Devin returned to their bunks. Later the guards came through, found the victim hanging and cut him down.

One of the witnesses testified that when he saw Devin and the others at the victim’s bunk, Devin had the.rope attached to the victim’s neck, and he heard defendant then say “Stop, stop,” and Devin answer, “If we don’t kill him now, we’ll get it for attempted murder.”

Hopson testified that he told the officers that the victim had talked of becoming an informant to secure his release from jail since his family was not helping. An inmate testified that the victim had earlier said “I’m going to hang myself.” Another inmate said Devin responded, “That can be arranged.” Both Hopson and another inmate testified that Devin also said, in defendant’s presence, just before Devin placed the rope around the victim’s neck, “nares don’t make it.”

An inmate also testified that earlier in the day defendant and Devin were braiding the sheet into a rope, then pulled the rope between them, with Devin commenting, “It was strong enough.” Another, that defendant was striking the victim while the victim was on the bed.

The State established by the testimony of Dr. Loren Henley, a pathologist, that various marks on the victim’s neck were made while he was alive; that the cause of death was hypoxia, lack of oxygen to the brain caused by tying a rope around the neck which shut off the victim’s blood supply.

John Rotunno, an investigator for the State’s Attorney’s office, testified that he and another investigator, Cresto, interviewed defendant at an interview room at the jail on June 7, 1979; that he was given Miranda warnings immediately and read and signed a waiver; that he and Cresto asked why they had been asked to come to see defendant, and defendant answered that he had spoken to his attorney and had been told to cooperate to the fullest extent; that defendant said he wanted the State to know that a “blanket party” was supposed to be thrown for the victim. In answer to the investigator’s inquiry, defendant agreed to “go over the events which transpired on May 20th and 21st” and “would go over the statement with us.” (A statement taken on June 5, 1979, had been suppressed by the court, because there was no waiver of counsel who had been appointed and was not notified.) The officer testified that defendant related the fight over the bed, the partial flushing of the sheet; that later he heard Devin say “How much can I get for this snitch” and said “There’s going to be a lynching tonight 6 ” ” and the snitch is going to be lynched”; that later Devin told defendant to get a piece of sheet to braid, he helped braid it and both he and Devin tested it; at about 1 a.m. on the 21st Devin came to defendant and said, “Let’s do it now”; that defendant said, “No he’s still up” and heard someone say a blanket party would be better. Hopson took the victim’s feet, and, at Devin’s request, defendant held on to his arms; that Devin put the noose over the victim’s neck and began strangling him, whereupon defendant said “Stop,” but Devin said “We can’t stop or else they’ll get us for attempt murder.” Defendant noticed the victim had urinated over himself while on the bed, said “Stop he’s dead,” but Devin said “Let’s go hang him in the dayroom before the guards come.” He then related the hanging. Asked by the interrogator why he didn’t stop it, defendant said, “I could have stopped it. I could have either yelled for the guards or I could have hit Devin in the face.” The officer, however, took no notes and did not mention the “stopping” statement in his report. John Cresto testified essentially to the same facts.

Defendant testified at trial that he was 18, had pled guilty to aggravated battery with a 75-day sentence and was due to be released on May 23,1979. He related the fight over the bed, the ripping of the sheet in half, that an inmate was supposed to flush the other half also; that it could have been used for a headband, or jump rope, or to fasten a door shut; then it was placed under Devin’s bed. The next time defendant saw it, it was around the victim’s neck. Later Devin came to his bunk, and he answered he was ready, thinking it was a “blanket party”; he hit the victim three or four times; then he saw Devin take the rope and put it around the victim’s neck, and defendant told him to stop; that Devin said “it’s too late now.” That Devin continued for 4 or 5 seconds and it was the end. Defendant was too scared then to stop Devin. No more than 10 seconds elapsed from when defendant first saw the rope in Devin’s hand to when the victim turned blue and went limp on the bed. The victim appeared to be dead. Devin told him to pick the victim up before the guard came. He did, and Devin pulled the victim up. Defendant denied that he told Rotunno that he could have stopped it or yelled for a guard, or that he spoke of a “lynching.”

I

Defendant contends that the evidence is insufficient to prove beyond a reasonable doubt that he either intended to kill or do great bodily harm, or that he knew that his acts created a strong probability of death, as required under section 9 — 1(a)(1), (a)(2) of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(1), (a)(2).) He argues that his intention was merely to participate in a “blanket party” which would not ordinarily involve serious injury to the victim. He also argues that he is not accountable for Devin’s acts because he withdrew when he observed that Devin was strangling the victim.

There appears to be credible evidence, however, that would support the jury verdict either on the basis of the defendant’s direct participation or on accountability principles. While accountability may not exist even though a defendant has the proper mental state if before the commission of the offense he terminates his effort to promote or facilitate such commission and wholly deprives his former efforts of effectiveness, gives timely warning to law enforcement authorities, or otherwise makes an effort to prevent the commission of the crime (Ill. Rev.. Stat. 1979, ch. 38, par. 5 — 2(c)(3)), we conclude that the defendant has not made the defense of terminating his participation in the crime.

There was testimony that defendant had helped Devin braid the sheet into a rope earlier in the day, had heard Devin conclude that it was “strong enough.” He stated to investigator Rotunno that he heard Devin say that the victim would be “lynched.” He heard someone say prior to waking up the victim that “a blanket party would be better,” from which the jury could infer that something other than a “blanket party” was involved. He heard Devin say, “Nares don’t make it,” when the rope was being placed around the victim's neck. The defendant continued to hold the victim down after he said he asked Devin to stop, and after he heard DeVin refuse, saying they could be charged with attempt murder. It was not until the victim was unconscious and defendant remarked to the effect that he was dead that defendant released his hold of the victim; that he participated in the “hanging” at a time when, the medical testimony indicated, the victim probably was not dead.

The gist of defendant’s argument is that the facts that witnesses were inconsistent in their testimony and defendant was to be released in two days militate against finding of intent. In such circumstances, however, it is the prerogative of the jury to ascertain the truth, and reviewing courts will uphold the verdict on issues of weight and credibility unless the evidence is so improbable as to raise a reasonable doubt. (People v. Manion (1977), 67 Ill. 2d 564, 578, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. Yarbrough (1977), 67 Ill. 2d 222, 227.) People v. Hister (1975), 60 Ill. 2d 567, cited by defendant is an example of improbable evidence which appears distinguishable on its facts. Here the evidence was not improbable.

The accountability of the defendant was supported by the circumstances. (See People v. Mertens (1979), 77 Ill. App. 3d 791, 796; People v. Grice (1980), 87 Ill. App. 3d 718, 726.) It would appear that defendant did not effectively disassociate himself from the criminal acts after he must have known what was happening. (See Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2(c)(3).) People v. Ramirez (1968), 93 Ill. App. 2d 404, relied upon by defendant, involves “guilt by association,” without affirmative participation, and appears inapposite.

II

The trial court suppressed a statement made by defendant on June 5, 1979, in the absence of counsel who had been appointed. Another statement was made on June 7,1979, in the jail, and which the court refused to suppress. The defendant argues that the latter statement resulted from the “tainted” statement and should also have been suppressed.

The defendant initiated the second inquiry by voluntarily seeking out the investigators to assure that the fact that he thought there was only going to be a “blanket party” was included in his statement. (Also, he sought a transfer to the Kane County jail.) A hearing was held both as to the second statement and defendant’s subsequent testimony on June 14, before the grand jury. The defendant argues that the investigators’ saying, “Tell us again what you told us on June 5,” and not writing the statement or keeping notes, are circumstances showing that it was a mere reaffirmation of the tainted statement.

The State first contends that the totality of the circumstances shows that the first statement was voluntary (People v. Lopez (1981), 93 Ill. App. 3d 152, 156), and that the attorney’s absence is not fatal. (People v. Krueger (1980), 82 Ill. 2d 305, 312.) However, the trial judge concluded otherwise based on the totality of the circumstances. He found that the investigators knew that defendant was represented by an attorney and that the attorney had just left the building, but immediately started to interrogate defendant. And moreover, the investigators undertook to give legal advice to defendant as to what could happen to him and what he should do, thus interfering with his right to counsel. His conclusion that defendant had not knowingly and intelligently waived his rights is supported by the record. There is, however, no per se rule that a defendant may not thereafter waive his right to have counsel present and thus validate his statement. People v. Church (1981), 102 Ill. App. 3d 155, 161.

As to the June 7 statement, there is no question raised that rights against self-incrimination, Miranda rights, were not honored. Defendant first sought to exclude the investigators’ testimony at trial as in violation of discovery rules, but this was denied. He then argued that the June 7 statement cannot be distinguished from the statement of June 5, found to be illegal.

Miranda warnings by themselves do not attenuate an illegal act of the police. (Brown v. Illinois (1975), 422 U.S. 590, 602, 45 L. Ed. 2d 416, 426, 95 S. Ct. 2254, 2261.) The question whether a confession is a product of free will under Wong Sun v. United States (1963), 371 U.S. 471, 486, 9 L. Ed. 2d 441, 454, 83 S. Ct. 407, 416, must be answered under the facts of each case, considering such factors as Miranda warnings, the “temporal proximity” of the illegal act and the confession, “the presence of intervening circumstances,” and “particularly, the purpose and flagrancy of the official misconduct.” Brown v. Illinois (1975), 422 U.S. 590, 603-04,45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62.

Here, Miranda was carefully followed, the defendant initiated the subsequent questioning, no promises or threats were made, there was an interval of time during which the defendant consulted with counsel, and there is no evidence that the officers had a wrongful purpose. These factors would appear to support the trial court’s ruling. People v. Pierce (1980), 88 Ill. App. 3d 1095, 1101-03; People v. Finch (1980), 86 Ill. App. 3d 493, 497.

Defendant’s testimony before the grand jury on June 14 was to the same effect as his June 7 statement. Defendant argues that although counsel was present and advised him, he was forced to so testify because of the prior illegality.

The exclusionary rule has been held not to apply to grand jury proceedings. (United States v. Calandra (1974), 414 U.S. 338, 347, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613, 619.) However, defendant’s argument attacks the use of the evidence at trial based on his fruits of an illegal act theory. It would appear that the same reasoning applied to his June 7 statement would obtain herewith, there being an even greater time interval. The findings of a trial judge as to voluntariness will be upheld where they are not against the manifest weight of the evidence. (People v. Brownell (1980), 79 Ill. 2d 508, 521.) Here, we conclude that the findings were not against the manifest weight of the evidence and we thus uphold them.

Ill

The following are urged by the defendant as prejudicial trial errors.

A. Defendant argues that the exclusion for cause of prospective jurors because they could never vote to impose the death penalty denied him a fair trial.

No studies were cited. (See Witherspoon v. Illinois (1968), 391 U.S. 510, 517-18, 20 L. Ed. 2d 776, 782, 88 S. Ct. 1770, 1774-75.) Further, there is no showing that peremptory challenges were exhausted and those who were predisposed to give the death penalty were also excluded. This court has held, in similar circumstances, that the selection process did not produce a jury biased in favor of the prosecution and prevent a fair trial by an impartial jury. People v. Smith (1980), 91 Ill. App. 3d 438, 448. See also People v. Lewis (1981), 88 Ill. 2d 129, 147.

Defendant further argues that a new jury should have been impanelled for the sentencing phase. This appears to have been waived by defendant when he elected to be sentenced by the court when his motion for the impanelling of a new jury was denied. Additionally, no “good cause” for requesting a different jury appears to have been demonstrated. People v. Lewis (1981), 88 Ill. 2d 129, 146-47.

B. Defendant argues that repeated references by State’s witnesses were made to the suppressed statement of June 5 and that this denied defendant a fair trial.

The issue arises largely from defense counsel’s cross-examination of investigators Rotunno and Crest as to their inability to clearly recollect defendant’s June 7 oral statement, and their failure to tape the statement or keep notes of the conversation, patently seeking to create the inference that the June 7 statement was fabricated and that the State was essentially trying to get in a prior statement which had been suppressed. In answer to a question on cross-examination Rotunno stated that the reason why the June statement was not recorded was “that information is contained in another five-page document.” On defense counsel’s motion the reference was stricken and the jury instructed to disregard it. On redirect the State questioned Rotunno as to his having refreshed his recollection from the earlier document. On objection the judge indicated the question to be improper and instructed the jury to disregard it, also denying defendant’s request for a mistrial.

Questioning can be directed on redirect examination towards refuting attempted impeachment of a witness. (People v. Lewis (1977), 52 Ill. App. 3d 477, 486; People v. Marino (1980), 80 Ill. App. 3d 657, 666.) It should be noted that no substantive evidence obthe earlier confession was admitted. (See People v. Morris (1978), 65 Ill. App. 3d 155, 160.) Thus as it appears from the record that the defendant’s statement made on June 5,1979, was, with the addition of factors which the defendant sought to incorporate, virtually identical to the statement made by the defendant to the investigators on June 5, both statements being the defendant’s account of the incidents of May 20 and 21, 1979. The State had the right to counter the misleading impression from defense counsel’s questioning, that because they did not record the substance of the June 7 statement, the defendant did not make the June 7 statement. Except for the suggestion created by the cross-examination the jury would not have been made aware of the fact that there had been an earlier statement. Moreover, the rule that an instruction to the jury to disregard errors usually corrects errors, applies particularly to this record. People v. Carlson (1980), 79 Ill. 2d 564, 577.

C. Defendant argues that the trial court erred in ruling that the testimony of a Sergeant Quinn that Hopson made certain statements to him which the defense considered favorable was inadmissible hearsay. We conclude that the testimony appears clearly to either be hearsay or, if not addressed to defendant’s culpability, irrelevant. The defendant couples this ruling with the court’s ruling that if Hopson, whom the State did not call as a witness, were called as a defense witness the State could attempt to impeach him by a prior conviction. Thus, defendant argues, defendant was required to choose between either foregoing the accomplice’s testimony or subjecting him to the State’s inquiries into his guilty plea. Since it appears that the accomplice was available to testify as a witness we see neither error nor prejudice to the defendant but mere pursuit of a tactical decision. Moreover, the accomplice was called as a court’s witness, and defendant was not prevented from cross-examination. Chambers v. Mississippi (1973), 410 U.S. 284, 295, 35 L. Ed. 2d 297, 308-09, 93 S. Ct. 1038, 1045-46, relied upon by defendant, is distinguishable. In Chambers, the defendant was prevented by a State “voucher” rule from cross-examining a witness who had previously confessed to the same crime and later recanted; or from calling other witnesses to the witness’ confession, thus resulting in the total exclusion of critical evidence.

The defendant also couples this argument with his claim that the court erred in denying a defense motion in limine to prohibit the State from impeaching the accomplice as to his plea and agreed sentence at a time when no final judgment had been entered. It was not error to allow the State to inquire as to the accomplice’s guilty plea despite the fact judgment had not been entered. The plea of guilty, or conviction of an accomplice of the same offense is admissible to impeach a co-defendant, although not generally admissible as evidence of another’s guilt. People v. Sullivan (1978), 72 Ill. 2d 36, 42.

D. Defendant has also claimed error in the fact that the accomplice was called as a court’s witness which prevented the defendant from restricting the scope of his testimony. However, defendant agreed to this procedure when his in limine motion to prevent the State’s cross-examination as to the prior conviction was denied.

E. Defendant argues that it was improper for the State’s medical witness, Dr. Henley, to be permitted to testify that the victim did not die in bed but was alive at the time he was hung up. The argument seems to be based on the contention that the State had sought to show in a separate trial of a codefendant that death occurred on the bed. There is no evidence in the record to support this argument or suggest any inconsistency in the testimony of Dr. Henley.

F. The same kind of argument has been made as to the cross-examination of the accomplice. Again, there is nothing in the record to show that the cross-examination would be inconsistent with the accomplice’s testimony at the codefendant’s trial.

G. Defendant also argues that he was erroneously denied the right to call Dr. Jack Arbit, a psychologist who had examined the codefendant Devin as to sanity and who would testify that the latter had a violent and compulsive personality. The direction of defendant’s argument is that this would have corroborated defendant’s theory that he intended no great harm and that Devin’s act was impulsive and not contemplated by the defendant.

The State objected to the calling of Dr. Arbit as a witness for the reason that the defendant did not inform the People of his intention to call the witness pursuant to Supreme Court Rule 413 (Ill. Rev. Stat. 1979, ch. 110A, par. 413); and, in addition, that the offer would have introduced an irrelevant collateral inquiry into the case. We agree. The defendant’s defense was that he had no intention to kill the victim and ceased participation in the attack when it became clear to him that the codefendant was strangling the victim. This defense he placed before the jury by other testimony. The introduction of a psychologist’s opinion that the codefendant possessed a violent personality would have added nothing to the defense and would have involved the court and the jury in a collateral inquiry which was not relevant to the question of the defendant’s intention.

H. Defendant also argues that various statements by the prosecutor in closing argument prevented a fair trial. Principally the defendant complains of the prosecutor’s closing argument in which he referred to the fact that defense counsel had pointed out that the State had a responsibility not only to prosecute the case but also to the People of the State of Illinois. The prosecutor argued that he was fulfilling that responsibility by asking the jury to return a verdict of guilty of murder and continued:

“<* « o ^je fulfilled that responsibility in the case of People v. Devin and we think we fulfilled it correctly in that case; he was found guilty, given the death penalty. We say that we are fulfilling that same responsibility * *

It was error for the prosecution to refer to the fact that the co-defendant was given the death penalty. However, the record appears to support the State’s argument that the comment, with the exception we have noted, was invited by numerous references in defense counsel’s closing argument to the effect that the State was not acting responsibly to furnish reliable evidence particularly with regard to the investigators, Crest and Rotunno; and that the prosecution was introducing inconsistent testimony in the trial of the codefendant as against this trial. The portion of the State’s argument that it was in fact acting responsibly was an invited response and was not error. (People v. Jedlicka (1980), 84 Ill. App. 3d 483, 490.) The reference to the death penalty in the codefendant’s case, although error, does not constitute reversible error. The prosecutor did not rely on the codefendant’s conviction in his argument to the jury and on the whole record the comment could not have changed the result which the jury reached. (See People v. Palmer (1970), 47 Ill. 2d 289, 300.) Moreover, the trial court promptly sustained defendant’s objection and instructed the jury to disregard the comment. Under the whole record we conclude that the act of promptly sustaining the objection and instructing the jury to disregard the argument was sufficient to cure any prejudice. See People v. Baptist (1979), 76 Ill. 2d 19, 30; see also People v. Carlson (1980), 79 Ill. 2d 564, 577.

IV

We next consider defendant’s argument that the statute setting forth aggravating factors upon which a death penalty may be sought is unconstitutionally vague. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(2).) Defendant argues that the reference to a killing of an inmate of a “facility of the Department of Corrections, or any similar correctional agency” does not apply to the Du Page County jail.

The defendant did not receive the death penalty and appears to have no standing to raise the issue. (See, e.g., People v. Siefke (1981), 97 Ill. App. 3d 14, 15.) There also appears to be a stipulation that the statute was applicable, so that defendant may be considered to have waived the argument in any event.

V

Finally, defendant contends that the factors between himself and the separately tried defendant, who pled guilty to accountability for the murder and was given a 20-year sentence, indicate an abuse of discretion in disparately sentencing this defendant to 40 years’ imprisonment. The defendant, however, has not produced a record to support his burden of showing disparity. The court’s statement of the matters it considered in sentencing the defendant shows that defendant’s background and potential for rehabilitation was carefully considered, and the length of the sentence was clearly not an abuse of discretion by the court. (See, e.g., People v. Cox (1980), 82 Ill. 2d 268.) Defendant has failed to demonstrate that he and the other accomplice were similarly situated with respect to background, prior criminal history, potential for rehabilitation, or involvement in the particular offense which would justify a consideration of disparity. We therefore uphold the sentence.

The judgment of the trial court is affirmed.

Affirmed.

UNVERZAGT and VAN DEUSEN, JJ., concur.


author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL BARKENLAU, Defendant-Appellant.
    Second District
    No. 80-846
    Opinion filed April 15, 1982.

      Mary Robinson and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, and Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Larry Wechter, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

Defendant was convicted of attempt (armed robbery) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a)) and unlawful use of a weapon (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(4)) following a jury trial in Lake County. On appeal he contends that his statement to the police that he intended to rob his victims was not corroborated by sufficient independent proof of the corpus delicti of attempt (armed robbery). He also argues that his request for the court to instruct the jury on the lesser offenses of aggravated assault and reckless conduct was improperly denied.

The evidence of the attempt (armed robbery), without defendant’s statement to the police, shows that at about 11:30 p.m. on May 4, 1980, David Carey and Shirley Mann picked up defendant, who was hitchhiking on Sheridan Road in Lake County. Defendant sat in the back seat of the car, saying nothing at first, and then saying, “Turn right here.” Shirley Mann, the passenger in the front seat, turned around and saw defendant had a gun pointed at her face. She and David Carey tried to determine exactly where defendant wished them to turn. The defendant muttered something that Carey could not hear, and then said, “Yes, up here,” when Carey asked if he had said Al’s Tap. Carey turned the car onto a side street near Al’s Tap. Mann then jumped out of the car, and Carey disarmed defendant.

The police officer who arrived at the scene testified at trial that defendant told him that “he was going to rob them.”

Defendant argues that the corpus delicti of an offense must be shown independently of any statement made by defendant. People v. Taylor (1974), 58 Ill. 2d 69, 78, 317 N.E.2d 97, cited by defendant, appears to support this position, as in it the supreme court stated, “So long as the corpus delicti is proved, a confession tending to show that the defendant committed the crime will justify a conviction.” The supreme court recently stated in People v. Willingham (1982), 89 Ill. 2d 352, 359, that the most precise explanation of what is necessary to establish the corpus delicti was given in People v. Perfecto (1962), 26 Ill. 2d 228, 229:

“ ‘The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. (People v. Borelli, 392 Ill. 481.) The same evidence may be used to prove both the existence of the crime and the guilt of the defendant, the test being whether the whole evidence proves the facts that a crime was committed and that the accused committed it. People v. Brown, 379 Ill. 262. People v. Gavurnik, 2 Ill. 2d 190, at 194.”

The Willingham court, after reviewing the case law on the subject, stated in summation, “[I]f the independent evidence tends to prove that an offense occurred, then such evidence, if corroborative of the facts contained in the confession, may be considered along with the confession in establishing the corpus delicti.” 89 Ill. 2d 352, 361.

A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a).) The offense of armed robbery occurs when a person takes property from the person or presence of another by the use of force or by threatening the imminent use of force (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1(a)) while carrying on or about his or her person, or being otherwise armed with, a dangerous weapon. Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a).

The independent evidence here, that defendant pulled a gun out and aimed it at the passenger, clearly indicates that a crime was committed. The nature of that offense was stated by defendant. He was going to rob his victims. Although we can only identify the particular offense from the confession we think that the facts aliunde the confession tend to prove that the offense of attempt (armed robbery) occurred. The independent evidence is consistent with the confessed intent to commit an armed robbery, and although it does not by itself establish the corpus delicti of the offense charged, it does tend to prove the corpus delicti, and is corroborative of the facts contained in defendant’s confession to the police officer. We conclude that the evidence aliunde the confession tends to prove the corpus delicti and is corroborative of defendant’s statement. The independent evidence together with the confession prove the commission of attempt (armed robbery).

Defendant next argues that his request for the tendering of instructions on lesser offenses should have been granted. The defendant had requested the court to instruct the jury on aggravated assault and reckless conduct but the trial court refused.

With regard to defendant’s argument on aggravated assault, it has been held that aggravated assault is not a lesser included offense of the offense of armed robbery. People v. Robinson (1979), 68 Ill. App. 3d 687, 386 N.E.2d 165.

Defendant argues that People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189, holds that the description of the crime in the charge, not the abstract elements of the offenses as stated in the statutes, is the controlling consideration in determining what is a lesser included offense. The Cramer analysis, if applied here, he contends, would compel the conclusion that he could have been convicted of aggravated assault and that the jury should have been instructed on that offense. Cramer requires a determination of what is a lesser included offense by a comparison between the lesser offense and the offense that is charged, as the latter offense is described in the indictment or information. The court in Cramer referred to Sansone v. United States (1965), 380 U.S. 343, 349,13 L. Ed. 2d 882, 887-888, 85 S. Ct. 1004, 1009, in which the Supreme Court stated: “Thus, *[i]n a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie[s] it, * * * [is] entitled to an instruction which would permit a finding of guilt of the lesser offense.’ [Citations.]” A comparison of the abstract elements of the statute under which the crime was charged and the statute in which defendant grounded the tendered instruction is not to be made.

The court in Cramer refrained from addressing the question of whether evidence adduced at trial could support a defendant’s tendered instruction where the terms of the indictment could not. In the absence of any ruling upon that matter by the court in Cramer we must proceed under the long recognized rule that the offense for which defendant seeks an instruction must not only be a lesser offense but one which is included in the offense described in the indictment or information. People v. Robinson; People v. Thompson (1977), 55 Ill. App. 3d 795, 371 N.E.2d 326.

The information here charged defendant with attempt (armed robbery) with the allegation that he “committed the offense of ATTEMPT (ARMED ROBBERY) * * * in that the defendant with intent to commit the offense of Armed Robbery * * * performed a substantial step towards the commission of that offense, in that he pointed a dangerous weapon, a .25 caliber gun, at David Corey [sic], with intent to rob David Corey [sic] of his money by threatening the imminent use of force.” The commission of aggravated assault here would consist of the commission of assault using a deadly weapon. (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 2(a)(1).) It is thus necessary to allege and prove the use of a deadly weapon “which places another in reasonable apprehension of receiving a battery.” (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 1,12—2(a)(1).) It may be, as the court in Robinson stated, that a reasonable apprehension of receiving a battery “may be inherently present in many armed robberies [or attempted armed robberies for that matter], but it is not an element required to be specifically proved.” (68 Ill. App. 3d 687, 691.) The indictment here charged defendant with attempt (armed robbery) but did not include as a matter to be proved that defendant placed his victim in reasonable apprehension of receiving a battery. The trial court therefore properly ruled that aggravated assault was not a lesser included offense and correctly refused to tender this instruction to the jury.

Defendant also tendered an instruction on reckless conduct. Reckless conduct consists of endangering the bodily safety of an individual and performing recklessly acts which endanger the other’s safety, whether those acts are lawful or not. (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 5.) This lesser offense requires proof of an element, reckless performance of an act, which is not charged in the information. “The fact that these additional elements may have been seen in the facts in this case is not determinative of the question.” (People v. Thompson (1977), 55 Ill. App. 3d 795, 798.) AH the elements of the offense of reckless conduct were not included in the charge, and so defendant was not entitled to an instruction on reckless conduct as a lesser included offense.

Defendant argues that regardless of whether aggravated assault and reckless conduct were included offenses of the offense charged, the evidence at trial would have permitted a jury rationally to find defendant guilty of the lesser offenses and acquit him of the greater, and, consequently, instruction on the lesser offenses would have accorded him the full benefit of the reasonable-doubt standard.

Defendant argues that the supreme court’s statement in Cramer, “We intimate no view here upon whether the evidence as adduced at trial could support a defendant’s tendered instruction where the terms of the indictment could not” (85 Ill. 2d 92, 98), indicates that this question has been left open for us to rule upon and that we can choose to rule that an offense need not be included in the charged offense in order to be instructed upon. The matter is not open for our consideration. Our supreme court has stated many times prior to its decision in Cramer that when conduct is violative of more than one statute and each statute requires different proof for conviction it is for the State, not the defendant, to choose under which statute defendant will be prosecuted. (People v. Henderson (1978), 71 Ill. 2d 53, 373 N.E.2d 1338; People v. Brooks (1976), 65 Ill. 2d 343, 357 N.E.2d 1169; People v. Gordon (1976), 64 Ill. 2d 166, 355 N.E.2d 3.) “No defendant has an absolute right to pick and choose his prosecution and his punishment.” (People v. Simpson (1978), 57 Ill. App. 3d 442, 449, 373 N.E.2d 809 aff'd (1978), 74 Ill. 2d 497.) To allow the consideration of other issues into the trial process by instructing on offenses which are not included in the offense charged would infringe upon the State’s discretion to prosecute a defendant for a particular offense. Such a practice would give a defendant a role in the picking and choosing of his prosecution. It has long been recognized that one may not be convicted of an unindicted offense which is not a lesser-included of the offense for which he is charged. (People v. Hobson (1979), 77 Ill. App. 3d 22, 28, 396 N.E.2d 53; People v. Thompson; People v. Rainbolt (1977), 52 Ill. App. 3d 374, 367 N.E.2d 293.) The trial court properly refused to instruct the jury on offenses which were not included in the crime charged.

We affirm the judgment of the circuit court of Lake County.

Affirmed.

LINDBERG and NASH, JJ., concur.