author: PRESIDING JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL PITTMAN, Defendant-Appellant.
    First District (4th Division)
    No. 82—1129
    Opinion filed June 28, 1984.
    Rehearing denied August 28, 1984.

      James J. Doherty, Public Defender, of Chicago (Fred S. Flores, Karen A. Popek, and Elliot R. Zinger, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Denise O’Malley, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Following a jury trial, defendant, Michael Pittman, was found guilty of two counts of armed robbery and sentenced to serve two concurrent 50-year terms.

He now appeals, contending that (1) other-crimes evidence was improperly admitted at trial; (2) the trial court improperly denied his motions to quash arrest and suppress evidence; (3) as to one count, an essential element of the crime of armed robbery was not proved; (4) the State was guilty of prosecutorial misconduct in closing argument; and (5) the trial court erred in imposing disproportionate sentences.

We affirm the convictions and sentences.

On October 20, 1981, Brenda Jackson and Roy Michel were working as salespeople at the J & S Food Store. Jackson testified that a man, whom she subsequently identified as defendant, Michael Pittman, entered the store at approximately 7:30 p.m. and purchased some candy. After Jackson, who was working the cash register, gave the man change, he pulled a gun and, holding it on Jackson and Michel, who were standing side by side behind the register, demanded the rest of the money. Jackson gave him the money from the register. After taking the remaining coins and food stamps, the robber forced Jackson and Michel at gunpoint into the back of the store and handcuffed them to a barred window. He then returned to the cash register and continued to look for more money. Finding Jackson’s purse, he took $25 from it and exited the store.

Five days after the incident, Jackson and Michel were separately shown six photos from which each identified defendant as the man who had robbed the J & S Food Store.

State trooper Delores Enright testified for the State that on November 21, 1981, she was on patrol on Interstate 94 when she saw defendant walking down the highway. She pulled her patrol car up alongside defendant and asked him for identification. Defendant gave her two traffic citations and told her he had run out of gas.

Officer Enright called in the citations on the patrol car radio, and a computer check revealed that there were no outstanding warrants out on defendant. Upon completion of the check, Officer Enright told defendant she would give him a ride to a gas station but that she would have to pat him down before allowing him to enter the patrol car. As she patted down defendant, Officer Enright felt a hard object beneath his coat. She reached under his coat and removed a fully loaded .357 magnum revolver. She placed defendant under arrest and drove him to the police station. When she subsequently ran defendant’s name through the National Crime Information Center, she learned that he was wanted on five charges, including armed robbery.

A lineup was held, and Jackson and Michel separately identified Pittman as the man who had robbed the store. Jackson and Michel also observed a handgun lineup and identified the gun that was used by defendant during the robbery.

Carolyn Grandberry, defendant’s girlfriend, and Annette Barnes testified for the defense that they were present with defendant at a baby shower from approximately 5 p.m. to 9 p.m. the evening on which the robbery took place. Both testified that defendant did not leave the party at any time prior to 9 p.m., when he departed with Grandberry and the couple’s little girl.

At the close of the trial, defendant moved for a directed verdict. The court denied the motion and, upon deliberation, the jury found defendant guilty of two counts of armed robbery. Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2.

Defendant now appeals those convictions.

Defendant’s first contention is that other-crimes evidence was improperly introduced at trial. He specifically objects to (1) Officer Enright’s testimony that he was wanted already on five charges, (2) the photo array submitted to the jury with the name of the Harvey Police Department printed on the front, and (3) the jury instruction that defendant was also being tried for unlawful use of weapons. We shall consider each of these claims of error in turn.

At trial, Officer Enright testified that when she ran defendant’s vital statistics through the National Crime Information Center she learned that he was wanted on five charges, including armed robbery. Defendant correctly asserts the general rule in Illinois that evidence of other crimes is inadmissible if relevant merely to show an accused’s propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) The State maintains that defendant waived this issue for purposes of review by failing to object at trial or raise it in a post-trial motion, and, alternatively, that other-crimes evidence is admissible for the purpose of offering a continuous narrative of the arrest. People v. Alexander (1966), 69 Ill. App. 2d 27, 216 N.E.2d 180.

While failure to object at trial or raise an alleged error in a post-trial motion generally operates as a waiver on appeal, where, as here, the error threatens to deny defendant a fair trial, a reviewing court may consider the heretofore unobjected-to matter. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) We therefore consider the State’s alternative argument, namely, that the other-crimes evidence was admissible as part of a continuous narrative of the arrest.

The State posits that the officer’s testimony was admissible as an explanation of how defendant, who was arrested for carrying an unlawful weapon, happened to be on trial for armed robbery, and that the evidence therefore tended to connect defendant with the crime for which he was being tried. (People v. King (1973), 10 Ill. App. 3d 847, 294 N.E.2d 300.) While this exception to the prohibition of the admission of other-crimes evidence might justify Officer Enright’s disclosure that defendant was wanted for armed robbery, it fails to justify the gratuitous and overbroad disclosure that defendant was wanted for five other charges. Because such evidence had little probative value on the issue of defendant’s guilt and was highly prejudicial, we find that the admission thereof was error. People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.

The erroneous introduction of evidence of other bad acts or crimes by the accused does not, however, constitute per se grounds for reversal where the evidence as a whole shows that the accused is guilty beyond a reasonable doubt. (People v. Nicholson (1978), 61 Ill. App. 3d 621, 377 N.E.2d 1063.) Here, the evidence adduced at trial, which included two eyewitnesses’ identification of defendant from both a photo array and from a lineup out of court as well as the in-court identification of defendant at trial, proved defendant guilty beyond a reasonable doubt. We therefore find that the error committed by the admission of Officer Enright’s testimony was harmless.

Defendant next claims that the admission into evidence of a photo array bearing the caption “Harvey Police Department” and certain of his vital statistics was similarly improper under the prohibition against other-crimes evidence. The State maintains that the photos were admissible as probative of identity and of the means by which defendant was first identified by the victims. The applicable law supports the State’s argument.

The admission of “mug shots” has been held proper where, as here, they are admitted as the photos from which defendant was originally identified by eyewitnesses rather than to show arrest for another offense. (People v. Maffioli (1950), 406 Ill. 315, 94 N.E.2d 191.) Moreover, the admission of a “mug shot” is not reversible error where evidence of guilt is abundant, and it cannot be said that exclusion of the legends would have produced a different result. (People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254.) We find that the photo array in the instant case was properly before the jury.

As his final claim of error under the doctrine of other-crimes evidence, defendant asserts he was denied a fair trial when the trial judge mistakenly informed the jury that defendant was charged with the offense of unlawful use of weapons in addition to that of armed robbery. The charge of unlawful use of weapons was not a charge on which the jury was to determine defendant’s innocence or guilt. The State maintains that, under the general rule of waiver, defendant waived the issue on review by his failure to either object at trial or raise the alleged error in a post-trial motion. (People v. Carlson (1980) , 79 Ill. 2d 564, 404 N.E.2d 233.) Defendant concedes his failure to object but claims that the erroneous instruction rises to the level of plain error affecting his substantial rights. (73 Ill. 2d R 615(a).) Our preliminary determination, then, is whether the unpreserved error may be considered under the plain error doctrine.

Review under the plain error doctrine is permissive and not mandatory. (People v. Cross (1981), 96 Ill. App. 3d 268, 421 N.E.2d 262.) The plain error doctrine is a limited exception to be used to correct grave errors or to be applied where the case is factually close and fundamental fairness requires that the jury be properly instructed. (People v. Brophy (1981), 96 Ill. App. 3d 936, 422 N.E. 2d 158.) In examining whether to apply the plain error exception to the waiver rule, the court must ask if defendant was prejudiced to the extent that he was prevented from receiving a fair trial. (People v. Baynes (1981) , 88 Ill. 2d 225, 430 N.E.2d 1070.) It must be plainly apparent from the record that an alleged error affecting substantial rights was committed before the unpreserved error may be considered on review. People v. Black (1982), 107 Ill. App. 3d 591, 437 N.E.2d 1282.

In addition to these general considerations, two other factors must enter into our determination in the specific context of the instant case. First, in criminal cases, errors not properly preserved may be considered under the plain error doctrine in those cases where the evidence is closely balanced. (People v. Hannon (1981), 97 Ill. App. 3d 358, 422 N.E.2d 1023.) Second, when determining whether plain error was committed in instructing a jury, the instructions must be examined as a whole to determine whether their cumulative impact cures or lessens the prejudice caused by the alleged error. (People v. Currie (1980), 84 Ill. App. 3d 1056, 405 N.E.2d 1142.) Thus, an erroneous jury instruction may deprive a defendant of a fair trial if it is given in a factually close case and goes to a fundamental matter such as the burden of proof or the elements of the crime charged. However, where, as here, the erroneous instruction was (1) oral only, (2) cured by proper written instructions, and (3) essentially duplicative of one of the elements of the crime charged, the error does not rise to the level of plain error such as to warrant this court’s modification of the waiver rule. We therefore find no merit in defendant’s claims of error based on the alleged admission of other-crimes evidence.

We next consider defendant’s contention that the trial court’s denial of his motion to quash arrest and suppress evidence was error because Officer Enright’s pat down of defendant and the subsequent search and seizure were illegal. The State maintains that, under the circumstances, it was proper for the officer to conduct the pat down, which furnished probable cause for the search, which in turn yielded probable cause for the arrest. The specific circumstance that the State claims provided adequate cause for the pat down was Officer Enright’s observance of a “bulge” under defendant’s jacket. We find merit in the State’s position.

A reviewing court will not disturb a trial court’s finding on a motion to suppress unless that finding is found to be manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) Nor will a court of review substitute its judgment for that of the trier of fact as to the credibility of the witnesses and the weight to be given their testimony. People v. Cages (1980), 82 Ill. App. 3d 900, 403 N.E.2d 565.

Officer Enright testified at trial that she noticed a bulge under defendant’s jacket when he turned slightly in front of the illumination provided by the headlights of the patrol car. Defendant protests that the testimony was incredible because neither the officer’s report nor her grand jury testimony made reference to a bulge. The trial court noted that the matter was essentially one of credibility of the witnesses, and, as the State points out, the trial court found Officer Enright’s testimony that she saw a bulge to be credible. The trial court’s finding as to the credibility of the testimony is not clearly erroneous. Accordingly, we will not disturb it on review.

Having accepted the fact that Officer Enright noticed a bulge in defendant’s jacket, we note that her pat down of defendant was reasonable, based on the specific inferences that, in light of her experience, she was entitled to draw from the facts. (Terry v. Ohio (1967), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) A reasonably prudent person would have been warranted in believing that defendant might be armed and thus might pose a threat to the officer’s safety, especially when the officer was about to let defendant enter her vehicle. (People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252.) Moreover, the scope of the search in the instant case was strictly circumscribed to that which was necessary for the discovery of weapons. (Terry v. Ohio (1967), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) We therefore find that the pat down of defendant was proper protective conduct based on the officer’s reasonable concern for her own safety. We also find that the discovery of the hard object concealed beneath defendant’s jacket constituted probable cause for the search and ultimate seizure of the gun, which in turn justified defendant’s arrest.

Defendant’s next claim is that his conviction for the armed robbery of Roy Michel should be reversed because the State failed to prove that any property was taken from Michel’s “person or presence,” as required by statute. (Ill. Rev. Stat. 1981, ch. 38, pars. 18— 1, 18 — 2.) Defendant bases this claim of error on the fact that Michel was standing beside Jackson, who was closer to the robber and who actually handed him the money from the cash register. The State refutes this contention, asserting that the essential elements of the armed robbery statute aré satisfied by the taking of property from one’s presence, and that Michel was present during the robbery. The well-established law in Illinois supports the State’s position.

The Illinois Supreme Court has interpreted this specific statutory requirement, namely, that there be a taking “from the person or presence” of another, as not being limited to removal of the property from the victim’s person or from the immediate presence of the owner, possessor or custodian. (People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289.) In support of this interpretation, the Smith court cited the case People v. Braverman (1930), 340 Ill. 525, 173 N.E. 55, in which the victims were locked in a back room of a store while the store was robbed. The court in Braverman found that the requirement of a taking from the “person or presence” was met when the property was in the possession or control of the victim, and the robber used violence or fear of violence as the means to take it. 340 Ill. 525, 531.

Here, as in Braverman, the property was taken from the presence of Roy Michel, who was standing next to the register. Michel shared cashier responsibility with Jackson and had access to and control of the register, despite the fact that he did not actually hand the money to the robber. The robber used force or threat of force to cause the victims to part with possession of the store’s property against their will. The elements of armed robbery were therefore present.

Additionally, the “taking” in the instant case was not, as defendant argues, an instance where more than one offense is carved from the same physical act such as to subject defendant to only one armed robbery conviction. (People v. Palmer (1982), 111 Ill. App. 3d 800, 444 N.E.2d 678.) Here, there were two separate takings, once of the money and food stamps from the cash register, and one of the cash from Jackson’s purse after defendant had handcuffed the victims to the barred window. Because there were two separate takings in the presence of two victims, the defendant is subject to two convictions for armed robbery. People v. Moore (1978), 61 Ill. App. 3d 694, 378 N.E.2d 516.

Defendant next claims that he is entitled to a new trial due to the State’s improper comments during closing arguments. The State maintains that any such remarks that were not objected to at trial nor raised in defendant’s post-trial motion were waived on appeal. Alternatively, the State argues that the remarks were proper and that, even if held to be improper, such remarks could not have played a material role in defendant’s convictions in light of the overwhelming evidence of guilt presented by the State at trial.

After reviewing the record, we are unable to say that any of the allegedly improper remarks were so prejudicial or so flagrant as to deny defendant a fair trial. The trial court is in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. (People v. Smothers (1973), 55 Ill. 2d 172, 302 N.E.2d 324.) Considering the record as a whole and the arguments in their entirety, we cannot find that the remarks could have been a material factor in defendant’s conviction or that the verdict would have been different had the State refrained from making these remarks. (People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931.) We therefore find any closing argument fodder not to be fertile ground for a new trial.

Defendant finally contends that the trial court abused its discretion in imposing a disproportionate sentence and in improperly considering the threat of serious physical harm as an aggravating factor in its sentencing determination. We find no merit in either of these assertions.

After the trial court carefully considered appropriate factors in mitigation and aggravation of the offense, defendant was sentenced to two 50-year concurrent sentences. The trial court noted that defendant, with his history of prior convictions, fell squarely into the statutory provision for the imposition of an extended-term sentence. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(l).) The sentence imposed and the basis for its imposition are proper under the extended-term statutes. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 8—2(a)(2), 1005 — 5—3.2(a), (b).) Moreover, it was proper for the sentencing court to consider that the defendant’s conduct threatened serious physical harm to the victims as an aggravating factor in sentencing defendant on convictions of armed robbery. (People v. Tolliver (1981), 98 Ill. App. 3d 116, 424 N.E.2d 44.) It is permissible for a sentencing judge to consider the nature and circumstances of the offense, as well as the degree of each element of the offense. 98 Ill. App. 3d 116, 424 N.E.2d 44.

For the reasons stated above, we affirm the decision of the trial court.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    MEL GUNTHER, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—0640
    Opinion filed August 10, 1984.

      William J. Harte, Ltd., and Edward M. Burke, both of Chicago, for appellant.

      Isham, Lincoln & Beale, of Chicago, for appellee Commonwealth Edison Co.
    Peter B. Freeman and Garland H. Allen, both of Hopkins & Sutter, of Chicago (Richard E. Terry and James Hinchliff, of counsel), for appellee Peoples Gas Light & Coke Co.
    James R. Bryant, Jr., and John T. Lenahan, both of Chicago, for appellee Illinois Bell Telephone Co.
    Mayer, Brown & Platt, of Chicago, for appellee Northern Illinois Gas Co.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Mel Gunther, a taxpayer residing in the city of Chicago (the City), filed this class action suit on his own behalf and on behalf of all taxpayers residing in the City, challenging the right of defendants, Commonwealth Edison Company, Peoples Gas Light and Coke Co., Illinois Bell Telephone Company, and Northern Illinois Gas Company, to retain interest earned on money paid by the taxpayers to defendants as a utilities service charge pursuant to section 36(a) of the Public Utilities Act (the Act) (Ill. Rev. Stat. 1981, ch. 1112/3, par. 36(a)), which serves to offset the economic burden of the municipal utility tax imposed on defendants by the City pursuant to section 8— 11 — 2 of the Illinois Municipal Code (the Code) (Ill. Rev. Stat. 1981, ch. 24, par. 8 — 11—2). Without addressing the issues of plaintiff’s standing or certification of the class, the trial court dismissed plaintiff’s complaint for failure to state a claim upon which relief may be granted. On appeal, plaintiff contends that: (1) the trial court erred in dismissing his complaint on the grounds that: (a) defendants, as agents of the City, breached their duty to account for and return any profits made on the service charge; (b) retention of the interest earned constitutes unjust enrichment; and (2) plaintiff has standing to sue as a taxpayer. For the following reasons, we affirm the judgment of the trial court.

Section 8 — 11—2 of the Code authorizes municipal governments to tax public utilities that supply service within the municipality at a rate not to exceed 5% of the utilities’ gross receipts. Paragraph 36(a) of the Act permits the utilities to transfer the economic burden of this tax to utility customers in the form of a monthly service charge added to their utility bills. See Waukegan Community Unit School District No. 60 v. City of Waukegan (1983), 95 Ill. 2d 244, 256, 447 N.E.2d 345.

In the present case, plaintiff concedes that defendants have remitted their tax liabilities in the manner and at the times required by the Code and have complied with the correlative provisions of the Act. Plaintiff alleges, however, that defendants have been unjustly enriched by operation of the statutory scheme which allows an interval of time during which defendants can invest the service charges and earn interest before they are required to remit their tax liabilities to the City. Further, plaintiff contends that defendants have a duty to account for any profits.

Specifically, plaintiff argues that defendants’ failure to account for profits earned on the service charges breached a duty owed to the City as a result of their agency relationship. In support of this argument, plaintiff cites numerous cases as well as excerpts from the Restatement of Agency expounding on an agent’s duty to its principal. However, plaintiff fails to establish first the existence of an agency relationship between the City and defendants which would give rise to this duty. It is well established that agency is a consensual, fiduciary relationship between two legal entities, created by law, by which the principal has the right to control the conduct of the agent, and the agent has the power to effect legal relations of the principal. (Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, 413 N.E. 2d 457.) In his brief, plaintiff argues, “[TJhere is no question that the authority of the agents [defendants] derives solely from that of the principal [the City].” Yet, in contradiction to this statement, plaintiff discusses in detail the authority granted to defendants by the legislature to “collect these [utility] taxes.” Thus, plaintiff negates his own agency theory by acknowledging that the legislature is the controlling authority, not the City.

Plaintiff further errs by referring to defendants as tax collectors for the City, which they most decidedly are not. The Illinois Supreme Court has declared that utilities are taxpayers who have statutory authority to recover the economic burden of the utility tax from their customers in the form of a monthly service charge. (Waukegan Community Unit School District No. 60 v. City of Waukegan (1983), 95 Ill. 2d 244, 256, 447 N.E.2d 345.) The fact that utilities may pass the tax on to their customers alters neither the character of the tax (Commonwealth Edison Co. v. Community Unit School District No. 200, Du Page County (1976), 44 Ill. App. 3d 665, 671, 358 N.E.2d 688), nor the character of the utilities as taxpayers. The situation is analogous to that where a landlord passes on an increase in property taxes to the tenant in the form of an increase in rent. The tenant does not become the taxpayer simply because he has assumed the economic burden of the tax imposed upon the landlord.

Plaintiff further argues that defendants are being unjustly enriched by receiving fees for collecting taxes and then retaining profits made by the taxes as well. We disagree and find Waukegan Community Unit School District No. 60 v. City of Waukegan (1983), 95 Ill. 2d 244, 447 N.E. 2d 345, dispositive of the issue. In Waukegan, appellant urged the supreme court to require the utilities to account for all interest earned on the consumer utility tax revenue bills collected prior to their remittance to the special protest fund. The court held that “[when] collection and remittance of taxes [has been effectuated] in precise accordance with [the] duties under the respective consumer utility ordinances, the utilities cannot be deemed to be unjustly enriched.” (95 Ill. 2d 244, 261.) In the present case, plaintiff has conceded that defendants have collected the service charges and remitted the taxes in accordance with the Act and the Code, respectively. Therefore, we conclude that retention of any interest earned during the time between collection and remittance does not constitute unjust enrichment.

Finally, our determination that the trial court did not err in dismissing plaintiff’s claim for failure to state a cause of action obviates the necessity to address plaintiff’s argument that his status as a taxpayer grants him standing to bring this action.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

LORENZ and LINN, JJ., concur.


author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME RASEAITIS, a/k/a Jerome Rasgaitis, Defendant-Appellant.
    First District (4th Division)
    No. 82—262
    Opinion filed August 9, 1984.

      James J. Doherty, Public Defender, of Chicago (Fred S. Flores and Karen A. Popek, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

Defendant, Jerome Raseaitis, under indictment for murder and having been repeatedly found unfit to stand trial, was given a discharge hearing (pursuant to Ill. Rev. Stat. 1981, ch. 38, par. 104 — 25), at which the court found that the State had sustained its statutory burden of proving his “guilt” of murder beyond a reasonable doubt. Defendant was then ordered to undergo a maximum extended treatment period of five years with the Department of Mental Health and Developmental Disabilities (the Department). On appeal defendant contends: (1) the State failed to meet its statutory burden of proof; (2) the treatment period imposed was longer than the maximum permitted under the statute; (3) the statutory scheme under which defendant’s treatment period was imposed is violative of his right to due process and the equal protection of the laws.

We affirm.

On December 1, 1975, the defendant was charged with the murder of Matti Griffin after having voluntarily appeared at a police station to confess to the commission of that crime, which had occurred on April 29, 1973. The defendant was subsequently found unfit for trial on March 9, 1976, and on several subsequent occasions, although the record also establishes that on several occasions mental health personnel had reached preliminary determinations that he had become fit. During this time the defendant was in the custody of the Department for treatment in accordance with section 5 — 2—2 of the Unified Code of Corrections. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—2.) While defendant was undergoing treatment, the fitness provisions of the Code were amended to afford criminal defendants found unfit for trial the right to demand a discharge hearing at which they could seek to establish their innocence. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 25.) Defendant requested such a hearing and on December 10, 1981, after a fitness hearing at which the court determined that defendant remained unfit for trial and would not be fit within one year, the discharge hearing was held.

At the discharge hearing the defendant pled not guilty and the State then proceeded with its presentation of evidence. It was stipulated that if called, Officer R. Olson would testify that on April 29, 1973, at 8:30 in the morning at the Planters Hotel at 19 North Clark in Chicago, he observed the partially clad body of a woman, known as Jerry Rice and Matti Griffin, lying on a fifth floor landing. A set of handcuffs was attached to her right wrist. The officer also observed a bedspread tied to a partially open window in apartment 807 of the hotel. The bedspread was hanging outside the window. It was also stipulated that, if called to testify, Dr. Radhakisnan, a pathologist with the Forensic Institute, would testify that he performed the autopsy on Griffin’s body and determined that the cause of death was cerebral cranial injury, consistent with a fall from a high location.

The parties further stipulated that Officer Nowicki would testify that on November 30, 1975, the defendant appeared at the 17th District police station and indicated that he wished to confess to a crime. After being advised of his rights and waiving those rights, the defendant said, “I can’t sleep nights since I killed her, I want to confess now.” The defendant’s written statement was then obtained. In that statement defendant said he was at the Planters Hotel at about 9 or 10 p.m. on April 29, 1973, with a black woman. He could not recall her height or weight. He had met her at 7 that night at Broadway and Wilson and went with her to the hotel to take LSD. He registered them under the names of Mr. and Mrs. Jerry Rice and they proceeded to an eighth floor room. At about 8 p.m. they both took LSD. Defendant then tied two or three bedsheets in knots and tied them to the window. He told the woman to jump out the window, threatening to stab her with a six-inch blade knife he had if she did not do so. He also attempted to stab her with the knife. She jumped out the window and hung on to the sheets for only a few minutes. The defendant admitted to having a set of toy handcuffs at the hotel that night but denied having handcuffed the victim. In the statement defendant said he was 21 years old and had an eighth-grade education. He denied being on drugs and stated that he had last used drugs a long time earlier. The parties stipulated that the investigator who took the statement would testify that the defendant signed each page of the statement and initialled it where errors were made.

After the presentation of this evidence, the defendant’s counsel having rested without presenting any evidence, the court found that the defendant was “not not guilty” and imposed on him a maximum treatment period of five years with the Department of Mental Health and Developmental Disabilities.

I

The discharge hearing statute provides that the defendant must be acquitted if the evidence presented at the hearing fails to establish defendant’s guilt beyond a reasonable doubt. (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 25; People v. Rink (1983), 97 Ill. 2d 533, 455 N.E.2d 64.) Although a court’s determination that the State has met this burden does not constitute a technical determination of guilt, that issue being deferred until the defendant is fit for trial (People v. Rink (1983), 97 Ill. 2d 533, 455 N.E.2d 64), the standard of proof is the same as that required for a criminal conviction. Defendant contends that the trial court erred when it found that the State had met this burden.

In this cause the State sought to meet its burden of proof with the use of defendant’s confession. Because the same burden of proof is applicable in this case as in a criminal trial, we will apply the same standards with respect to the requirements for meeting that burden. For a conviction based on a confession to be sustained, the confession must be corroborated. (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.) In Illinois proof of the corpus delicti satisfies that corroboration requirement. (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.) And in a murder case the corpus delicti consists of two items, the fact of death and the fact that death was caused by the criminal agency of some person. (People v. Jones (1961), 22 Ill. 2d 592, 177 N.E.2d 112; People v. Holmes (1977), 67 Ill. 2d 236, 367 N.E.2d 663.) In evaluating such evidence the test is then whether the whole evidence proves that a crime was committed and that the accused committed it. People v. Perfecto (1962), 26 Ill. 2d 228, 186 N.E.2d 258.

Based upon our review of the evidence presented at the discharge hearing we find that the State did meet its burden of proof. The defendant walked into a police station and admitted that he had killed the deceased by forcing her at knife-point to hang out of an eighth-floor window at the end of a bedsheet rope from which she fell to her death. Defendant stated that they checked into the Planters Hotel using the names of Mr. and Mrs. Jerry Rice. He admitted that he had with him some toy handcuffs, although he denied using them on the deceased. This confession was corroborated by the State’s proof of the corpus delicti. The State proved that the body of the victim, who was known as Jerry Rice, had been found on the landing of the Planters Hotel on the day in question, although a later time than the confession of the defendant would have indicated. The pathologist who examined the body found her death to have been caused by a cerebral injury consistent with a fall from a high place. A bedspread was found tied to the eighth-floor window of one of the hotel rooms, and a handcuff was attached to one of the victim’s wrists. Thus, in addition to the defendant’s confession, the State presented independent evidence establishing that a death had occurred by the same criminal agency described by defendant. Viewing all this evidence as a whole, we find that the court did not err in its finding.

II

We next consider defendant’s contention that the statute concerning extended treatment periods should be construed to permit a total maximum treatment period of five years for defendants accused of murder, so that the period of treatment he received since the effective date of the statute and prior to the discharge hearing should have been credited against the five-year treatment term imposed by the court.

The pertinent portions of section 104 — 25 provide:

“(d) If the discharge hearing does not result in an acquittal of the charge the defendant may be remanded for further treatment and the one year time limit set forth in Section 104 — 23 shall be extended as follows:
(1) If the most serious charge upon which the State sustained its burden of proof was a Class 1 or Class X felony, the treatment period may be extended up to a maximum treatment period of 2 years; if a Class 2, 3, or 4 felony, the treatment period may be extended up to a maximum of 15 months;
(2) If the State sustained its burden of proof on a charge of murder, the treatment period may be extended up to a maximum treatment period of 5 years.” (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 25.)

In construing a statute it is the task of the court to choose a construction giving the statute a clear and logical meaning rather than one rendering its provisions illogical, useless, or unreasonable. (Havlik v. Marcin (1971), 132 Ill. App. 2d 532, 270 N.E.2d 189; 2A A. Sutherland, Statutory Construction sec. 45.12 (1973).) Adoption of defendant’s construction would mean that in the case of one charged with a Class 2, 3 or 4 felony who had already been treated for a period of one year the court could only impose an additional treatment period of three months following a discharge hearing, even though such a hearing may be triggered by a finding that there is not a substantial probability that the defendant will attain fitness within one year. (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 23.) Instead of such a construction we find it reasonable to assume that the legislature intended that the court have the discretion to impose an additional treatment period as specified in the statute, 15 months in the case of persons charged with Class 2, 3 and 4 felonies, and five years for those charged with murder. Accordingly we construe the statute to permit the additional treatment period ordered for the defendant, without any credit required for previous periods of treatment.

III

Defendant also contends that section 104 — 25(d) is unconstitutional as applied to him and others found unfit prior to December 28, 1979 (the effective date of the statutory scheme at issue), because such defendants are potentially subject to being held in the custody of the Department under criminal indictment for a longer period of time than those found unfit after that date. As we have construed the statute, those who have been found unfit for trial since the effective date of the statute and then not found innocent in a discharge hearing relating to a murder charge could have a previous one-year treatment period extended up to five additional years. But defendant notes that, in contrast to this outside limit of six years of treatment, those found unfit prior to the effective date of the statute could be required to undergo that five-year treatment period in addition to much greater treatment periods occurring prior to that date. Thus, in defendant’s case he has been in the custody of the Department since March 1976, and his extended treatment period will not end until December 1986 as presently scheduled. He will then have been held for over four more years than he could have been held if he had first been found unfit after the statute’s effective date. Defendant contends there is no rational basis for this potential disparity in treatment and thus the law as applied violates his right to equal protection of the laws.

The test of whether a statute is violative of the equal protection clause is whether the classification is rationally related to a legitimate governmental objective, with the burden on those challenging the law to prove that it is arbitrary and invalid. (Garcia v. Tully (1978), 72 Ill. 2d 1, 377 N.E.2d 10.) Here the overall governmental objective clearly was to establish a comprehensive scheme for dealing with criminal defendants who may be unfit for trial. One of the primary objectives of the new act was to insure that defendants who were found unfit, and for whom there was no substantial probability of attaining fitness, would not be indeterminately institutionalized. (Report, Governor’s Commission for Revision of the Mental Health Code of Illinois 6 (1976).) The principal vehicle for achieving this objective is the discharge hearing, which, for defendants found unfit after the effective date of the statute, would be held one year after the original finding if their unfitness persisted or upon a finding that the defendant was not likely to become fit within one year. (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 23.) The drafters of the statute were clearly concerned with the inclusion in this scheme of those found unfit prior to the effective date of the statute. Those who have been held by the Department for a period equal to the length of time they would have been required to serve for the crime at issue are entitled to an immediate fitness hearing. Those found unfit who have already been held by the Department for more than one year may immediately demand a discharge hearing. (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 28.) Assuming the State meets its statutory burden of proof at that hearing the court may in its discretion order custodial treatment for an extended period of time, up to five years for murder. However, this extended period is not mandatory, just as it is not for those first found unfit after the effective date of the statute. Nothing in the statute prevents the trial court from determining that a lesser extended period, or none at all, is merited. Certainly one appropriate factor to be considered by the court would be the amount of time the defendant had previously been treated without success.

Defendant apparently would require that such prior treatment period be automatically credited. But this would strip the trial court of its discretion to impose any such extended period in many cases. In this cause the trial court would have been barred from ordering any extended treatment for the defendant despite evidence that on several prior occasions some experts had found that treatment had rendered him fit for trial. In our view this statutory scheme presents a reasoned approach to working with defendants found unfit under prior statutes. We need not find that the legislature’s solution is the wisest or best one available for it to be constitutional. (Garcia v. Tully (1978), 72 Ill. 2d 1, 377 N.E.2d 10; Schreiber v. County of Cook (1944), 388 Ill. 297, 58 N.E.2d 40.) Because defendant has failed to demonstrate that the statutory scheme is arbitrary or unreasonable, we do not find any violation of equal protection.

IV

Finally we consider defendant’s contention that section 104— 25 (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 25) violates due process because it provides that the length of extended treatment periods may be based on the severity of the crimes at issue. Defendant contends that under the holding of Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, this is impermissible. We find that defendant misconstrues the holding of that case. In Jackson the court held that Indiana violated the due process rights of the defendant, a mentally defective deaf mute charged with two robberies and found unfit for trial, when it sought to involuntarily commit him for an indefinite period of time despite a total lack of any evidence suggesting that he could ever be rendered fit for trial. The court stated:

“At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.
We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.” (Jackson v. Indiana (1972), 406 U.S. 715, 738, 32 L. Ed. 2d 435, 451, 92 S. Ct. 1845, 1858.)

It is significant that under the Illinois statute defendants are subject to the extended treatment period only after a discharge hearing at which the State must meet its burden of, in effect, proving the defendant guilty beyond a reasonable doubt. Thus defendants are not being committed solely because they are not fit for trial. Nor, in the case of Raseaitis, are we confronted with an individual like the defendant in Jackson for whom it was apparent that no treatment would render him fit. The record establishes that this defendant has on several occasions during his period of treatment been determined by mental health experts to be fit, only to be subsequently found unfit at the ensuing fitness hearings. Additionally, the period of defendant’s commitment is not indefinite. In the light of all these circumstances we find it reasonable for the statute to provide that increasing severity of the charges at issue permits increased treatment periods. Nothing in the statute prevents the trial court from imposing less than the maximum treatment period when it appears that a lesser period may suffice. But giving the judge the discretion to so increase the period depending on the severity of the charges provides a balance between the interests of the defendant and society’s interest in protecting itself from those who commit crimes against it. Report, Governor’s Commission for Revision of the Mental Health Code of Illinois 186 (1976).

The due process clause requires only that a statute be reasonably designed to accomplish constitutionally permissible objectives. (People v. Burton (1981), 100 Ill. App. 3d 1021, 427 N.E.2d 625; Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 425 N.E.2d 522.) We conclude that this statute provides a reasonable means of balancing and protecting the interests of the criminal defendant found unfit for trial and those of society.

The judgment of the trial court is affirmed.

Affirmed.

LINN, P.J., and JOHNSON, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE PURNELL, Defendant-Appellant.
    First District (5th Division)
    No. 82—2513
    Opinion filed July 27, 1984.

      Ackerman & Egan, Ltd., of Chicago (Allan A. Ackerman, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Garritt E. Howard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(1)), and sentenced to an extended term of 60 years’ imprisonment. On appeal, defendant contends that: (1) the State produced insufficient evidence to establish his guilt beyond a reasonable doubt; (2) his waiver of the right to a jury trial was ineffective by virtue of a constitutionally inadequate admonition; and (3) his trial counsel failed to perform at the accepted standard of competency. For the reasons stated below, we affirm the judgment of the trial court.

In its case in chief, the State’s witnesses provided the following testimony. At 2 a.m. on August 27, 1981, the victim, Michael Lavin, arrived at 200 North Michigan Avenue, Chicago, to run computer tapes and cards at the offices of Computer Research, Inc., located on the fifth floor of the building. He had been employed by Programmers Investment Corporation, a computer research subcontractor, for approximately two years and had used Computer Research’s facilities at least three times per week. As the victim entered the building, William Banik and Bill Young, employees of Computer Research, were leaving. The defendant, George Purnell, seated at the security desk in the lobby of the building and dressed in full uniform, saw Banik and Young leave the building and the victim enter. Defendant was employed by the CPP Security Service and had been assigned to the 200 North Building as a security guard for the past few weeks.

At approximately 2:30 a.m., defendant arrived at the service window of the fifth floor computer room wishing to speak with Robert Ganan, lead operator for Computer Research. Ganan testified that the defendant, dressed in his full uniform, told him that his briefcase was missing and that he thought either Banik, Young or the victim had stolen it, as they had all been in its general vicinity one-half hour earlier when they had passed through the lobby. Defendant determined that it was during this time that the briefcase disappeared. Ganan stated that he knew nothing about the incident, and defendant left the fifth floor.

Banik and Young returned to the building at 3:30 a.m. and had a conversation with defendant in which defendant accused Banik, Young or the victim (who was not present at this time) of taking his briefcase. Banik and Young told defendant they knew nothing about the stolen briefcase; they also observed defendant as dressed in full uniform at this time.

Defendant returned to the fifth floor at 4 or 4:30 a.m. and told Ganan that he wanted to speak with the victim. The three met in the area adjacent to the fifth floor elevators, outside the offices, and defendant accused the victim of taking his briefcase. The victim denied any connection with defendant’s briefcase, but produced a driver’s license as identification at defendant’s request. Defendant copied some information from the license into his notebook, and the victim then returned to the computer room. Defendant then told Ganan that he knew “one of them took it” (referring to Banik, Young or the victim), and if he didn’t get any satisfaction he would get it out on the street. Ganan testified that defendant still had his uniform shirt on during this conversation.

At approximately 5 a.m., Banik and Young left their office to purchase some donuts. Defendant informed them that he would not permit them to leave the building as he ran to lock the front lobby door. However, defendant’s supervisor, with him in the lobby, ordered defendant to allow the two men to leave, and he unlocked the door. Banik and Young returned to the building at 6 a.m., at which time they observed defendant dressed in full uniform.

Shortly after Banik returned, he observed the victim “hanging” tapes in the computer room. At approximately 6:30 a.m., Robert Ganan viewed the victim on the TV monitor and saw him go through the fifth floor doors and enter the fifth floor elevator. He looked in fine physical condition. At 6:45 a.m., the freight elevator operator at the building for 12 years walked through the lobby on his way to report to his shift; he saw no guard at the security desk and no one in the lobby. At 6:48 a.m., John Zadelak, a student at Control Data Institute, located on the second floor of the building, came into the lobby and signed the log-in sheet. He observed defendant in the lobby dressed in a white T-shirt. He overheard defendant talking in a loud voice to another man, saying, “Someone stole my briefcase and if I lose my job because of it someone will pay.”

Robert Cigler, the building superintendent at the 200 North Michigan Building for 15 years, arrived at work at 6:30 a.m. on August 27, 1981. He did not enter the building through the main lobby; using his key, he entered the building through the Garland Court entrance. (The Michigan Avenue main lobby entrance is the only entrance to the building which remains unlocked at all times. There are only two other entrances to the building, one on Lake Street and the other on Garland Court, both of which require keys and remain locked at all times.) Cigler went directly down some stairs into the building’s boiler room.

At 7 a.m., Frank Victor, the building’s elevator starter, 67 years old, came to see Cigler in the boiler room. Cigler observed no blood on Victor’s person or clothing. The two men walked into the west portion of the building and ascended a set of stairs leading to the lobby. On the way there, they passed the building’s utility room, which is situated one floor above the boiler room and one floor below the lobby. Outside the door to the utility room, Cigler noticed blood which appeared to be smudged on the floor and on the stairs leading up to the lobby. Cigler and Victor opened the door to the utility room, turned on the lights and saw the victim lying on the floor, covered with blood, his head “bashed in,” and barely breathing. Cigler also observed fresh blood splattered all over the floor and walls of the utility room.

Following their discovery of the victim, Cigler and Victor immediately proceeded up the stairs leading from the utility room to the lobby and observed a stick propped up against the wall behind the opened door leading to the lobby. Cigler had seen this stick before, as it was normally kept in a locker room used by the security guards and elevator starter located immediately opposite the utility room where the victim was found. Cigler testified that he had seen defendant in this locker room before. Upon reaching the lobby at approximately 7:05-7:10 a.m., Cigler and Victor saw defendant seated at his security guard’s desk in the lobby; defendant was not wearing his uniform shirt or his badge. They asked defendant if he knew that a young man was lying in the utility room covered with blood. Defendant told them in what Cigler described as a “choppy voice,” that he knew “nothing about this” as he hadn’t been downstairs. Cigler then asked defendant why he was out of uniform and defendant stated that some people upstairs had stolen his briefcase and shirt when he was making security rounds. Cigler told defendant that he had no business leaving the security desk and going upstairs. Cigler then instructed defendant to call the police; defendant refused to do so until he reported the incident to the CPP Security office. Following his call to CPP Security, defendant dialed the police and handed the phone over to Cigler so that he could report the attack. At this time, Cigler observed defendant’s face to be sweaty, despite the fact that the building’s air conditioning system was in operation that day. Cigler then returned alone to the utility room to take another look at the victim. Upon his return to the lobby area at approximately 7:15 a.m., he testified that defendant was still present at the security desk, where to his knowledge he stayed until he was taken out by police.

On cross-examination, Cigler testified that there is a door located about 20 feet from the utility room which is equipped with an ADT alarm system. He explained that with this kind of alarm system, a security guard must insert a key into a box located at the door, give it a turn, pull out the key and allow the box to ring. The designated times for the “pulls” of the system for the morning of August 27, 1981, were 3:30 a.m. and 7:30 a.m. He testified that at 7:40 a.m. on August 27, 1981, he received a call from the ADT office alerting him that the 7:30 a.m. “pull” had not been made; he then asked Victor to go down to the door and make the “pull.” Although he conceded that he did not see Victor do so, he testified that ADT did not call him again.

Police officers Jaglowski and Pechulis arrived at the scene and observed Cigler and Victor outside of the building; they saw defendant standing by his desk wearing a white T-shirt and dark trousers. On his way down the stairs leading from the lobby to the utility room with Cigler, Officer Jaglowski noticed dark and bloody footprints. He found the victim on the floor of the utility room in a fetal position, gasping for breath. The victim had a 2” x 2” x 1” hole in the top of his head; one side of his head was covered with blood, as were his neck and two-thirds of his torso. A pool of blood surrounded the victim as he lay on the floor. Jaglowski saw a snow shovel propped up against the north end of the utility room’s wall; it was bent at the edges and covered with fresh blood. When the officer asked defendant if he knew anything about the incident, defendant responded, “I heard nothing, I know nothing and I saw nothing concerning an injured victim at the area of the premises.” The officer instructed the building superintendent, elevator starter and defendant not to leave the building until the police could ascertain what had happened. He also testified that from the time he came back up to the lobby until the time the assist units arrived and he and his partner departed the scene, defendant had remained at the security desk.

The prosecution then introduced a stipulation as to what the testimony of homicide investigator John Markham would be if he was called to the stand to testify. He would testify that when he arrived on the scene, the victim had already been transported to the hospital. He interviewed several people, including Frank Victor, Robert Cigler, William Banik, Bill Young and John Zadelak. He also interviewed defendant, who told him that he knew nothing about the attack, but related that his briefcase and shirt had been stolen that night. After a thorough search of the entire area surrounding the scene of the crime did not locate defendant’s shirt or briefcase, defendant was taken to Area One for questioning. Upon his arrival at the police station, blood was observed on his shoes; defendant was promptly advised of his constitutional rights. Detective Markham then took defendant’s statement in which he denied any knowledge of the attack. Markham would also testify that at this time defendant told him that he had taken his shirt off after his first rounds at 12:30 a.m., had put it on top of his briefcase, and that his shirt and briefcase were taken together.

Defendant subsequently agreed to give the detective his shoes, clothing and numerous personal articles which he had wrapped in newspaper and magazine pages. These articles included defendant’s leather belt, security guard shield, nameplate, handcuffs and case, scotch tape and dispenser, various leather goods, radio, black ballpoint pen, memo book and wristwatch. These items were inventoried and taken to the crime lab.

Detective Markham would also testify that at 3 p.m. on August 27, 1981, he had occasion to be in attendance at an interview between an assistant State’s Attorney and defendant whereupon defendant told them that (1) at 5 a.m. he took his shirt off to go to the basement; (2) at 6 a.m. an unidentified woman came into the building and he discovered that his shirt was missing; and (3) his supervisor came at 3:30 a.m.

Through two stipulations introduced by the prosecution, it was adduced that the paramedics received a call at 7:25 a.m., arrived at the building at 7:28 a.m., and administered emergency treatment to the victim at the scene until 8:03 a.m. Dr. Thomas Brown examined the victim upon his arrival at Northwestern Memorial Hospital, and described multiple, compound and depressed fractures to the left side of the victim’s skull where a portion of the victim’s brain protruded out of his head. A vial of blood was taken from the victim prior to his skull reconstruction and left temporal lobectomy surgery at 12 p.m. The victim received many transfusions during this operation. Following this surgery, the victim lay in a deep coma. Two EEC scans showed no brain activity whatsoever. Two days later, on August 29, 1981, the victim was disconnected from a respirator and pronounced dead. Another vial of the victim’s blood was extracted by the medical examiner’s office prior to his autopsy.

The prosecution introduced an additional stipulation that if called to the stand, microanalyst Cathy Mormon would testify that she conducted tests on both victim’s and defendant’s blood samples, as well as their personal belongings. Her tests revealed that both vials of victim’s blood (pre-surgery and pre-autopsy) contained type A(N) blood; that victim’s jeans, socks and shoes all had type A(N) blood present on them; that fluid recovered from the floor of the utility room proved to be type A(N) blood; that the shovel found in the utility room contained type A(N) blood; and that tests on victim’s lighter, as well as on the wooden stick found behind the open door leading to the lobby, showed human blood present.

Mormon would also testify that her tests showed defendant to have type A(MN) blood. Various items taken from defendant and tested showed that his memo book, right shoe and trousers contained type A(N) blood; that his white T-shirt contained type A blood, but that further serological tests to determine the presence of M or N antigens were not possible due to the insufficient amount of sample present; that tests on his metal nametag, left shoe, white handkerchief, brown umbrella, tape dispenser, radio strap, handcuffs, wristwatch and socks all indicated the presence of human blood, but that the amount of blood available for testing was insufficient to determine the type. Finally, Mormon would testify that 10% of the population had type A(N) blood and 20% had type A(MN) blood; that type A(N) blood cannot come from a person having type A(MN) blood; and that type A(N) blood found on victim’s and defendant’s belongings was consistent with that coming from the victim and inconsistent coming from defendant.

For the defense, the stipulated testimony of evidence technician Wade Crosson was introduced. He stated that during his investigation of the scene of the crime, he examined the shovel and wooden stick for fingerprints, and got negative results from both items. He gave three interpretations for these negative results, as he did not recall which of the three situations existed when he completed his report on August 27, 1981. He stated the negative results could mean that (1) there were no identifiable ridge impressions suitable for comparison with others available; (2) there were no fingerprints, whether identifiable or not, at all; or (3) there were smudged fingerprints on these items which were unidentifiable.

In his own defense, defendant testified that on August 26, 1981, he arrived to work at 11:30 p.m. and proceeded to a bathroom located in the west end of the lobby, where he changed into his uniform. He stated that he had only been in the building’s locker room once, and was never assigned a personal locker. At 1:10 a.m., he left his briefcase containing his civilian shirt, sandwich and other items at the security desk, locked the front lobby door and made a security check of the fourth through sixth floors. Upon his return to the lobby at 1:30 a.m., he found Banik and Young inside the lobby door waiting to exit the building. He also found the victim waiting outside the locked door. He unlocked the door, thereby allowing Banik and Young out, and the victim in. Defendant then relocked the lobby door and proceeded to the third floor to finish his security check of floors three through one. When he returned to the lobby at 2 a.m., he testified that he discovered his briefcase missing. He then went to the fifth floor to speak with Robert Ganan (erroneously identified by defendant as Mr. Cavanaugh), who brought the victim outside the fifth floor computer room to speak with defendant. Defendant further testified that he did not accuse the victim of stealing his briefcase, but merely asked him if he knew anything about it. Defendant returned to his desk located in the lobby at 2:20 a.m. He questioned Banik and Young about his briefcase when they returned to the building at 2:30 a.m. After they denied having any knowledge as to its whereabouts, they returned to the fifth floor.

Defendant then testified that he called the Chicago Police Department at 2:45 a.m. to report his alleged stolen briefcase; he told the officer(s) who responded to the call that he suspected one of three persons of stealing it. He stated that the police spoke with Ganan, Banik and Young in the presence of defendant. The victim was not present for this questioning. He testified that at 3:30 a.m., he left his post to make the required ADT pull, and returned to his desk. At 3:45 a.m., his CPP supervisor, Jeannie Collins, visited him in response to his call to CPP that defendant had made regarding his briefcase. Banik and Young were again present in the lobby at 4 a.m., whereupon Ms. Collins questioned them as to the whereabouts of defendant’s briefcase. He further testified that he spoke with Ganan and the victim regarding the briefcase and at this time requested identification from the victim. He also testified that it was at this time that the victim threatened to sue him.

At 5 a.m. defendant went to the basement of the building in search of his briefcase; he looked through numerous boxes and the storage room. At 5:30 a.m., he returned to the lobby from the basement, dusty and sweaty. He discovered that the uniform shirt he had taken off and placed on the top of his desk chair before he went to the basement was missing. He further testified that he reported his missing shirt to the CPP office at 5:50 a.m. He also stated that he was behind the security desk from 5:40 a.m. to 7:30 a.m. During this time, he testified that he observed a newspaper boy enter the building at 6 a.m.; an unidentified woman arrived at 6:05 a.m.; another woman he identified as Ms. Lannigan arrived at 6:45 a.m.; and Frank Victor arrived at 6:46 a.m. Defendant stated that Victor came into the building, went to the west end of the main lobby and entered the door leading down to the utility room, closing it behind him.

Defendant denied that he first phoned the CPP office to report the victim’s attack, but instead stated that he immediately called the “911” number when so directed by Mr. Cigler. He testified that at 7:35 a.m., he made his way to the west end of the building to make the 7:30 a.m. ADT “pull.” He testified that he had to pass by the utility room to get to the ADT box; that after making the ADT “pull” he stepped inside the utility room to take a look; and that before he could react to a policeman’s yell to “Watch out for the blood,” he stepped on some blood that was on the floor of the utility room.

On cross-examination, defendant denied that he locked the lobby door at 4 a.m., refusing to allow Banik and Young to leave; admitted that he could have made his entries in his daily log sheet for August 27, 1981, before these incidents actually happened; admitted that his entry on his daily incident report at 7:15 a.m. gave the victim’s name as Michael Lavin, but didn’t remember who told him the victim’s name; admitted that he kept his memo book in his shirt pocket, but that he had placed it in his desk drawer before he went down to the basement to look for his briefcase. He further denied that he had previously made a statement to an assistant State’s Attorney on the day of the attack; that he’d taken his shirt off after he returned from the basement; denied that he had told Detective Markham that he took his shirt off after his first round of security checks at 12:30 a.m., put it on his briefcase and that the shirt had been taken with his briefcase; and denied that he told police that he never went to view the body in the utility room after it was discovered by Cigler and Victor.

The State’s rebuttal witness, Patrick Belanger, operations manager for CPP Security, testified that a document, profferred by the State and entitled, “Supervisor’s Daily Activity Report,” dated August 27, 1981, was a record kept in the ordinary course of CPP’s business. He testified that this document indicated that defendant’s supervisor, Jeannie Collins, arrived at the scene at 4:20 a.m. on August 27,1981.

Following closing arguments, the trial court found defendant guilty of murder. After hearing the parties’ arguments in favor of mitigation and aggravation, the trial court sentenced defendant to a term of 60 years. This appeal follows.

Opinion

Defendant first contends that the State produced insufficient evidence to establish his guilt beyond a reasonable doubt. He posits that the record does not support the conclusion that he was capable of committing this brutal assault-murder.

Initially, we note that the evidence of defendant’s guilt is entirely circumstantial. It is well settled that a conviction may be sustained entirely upon circumstantial evidence. (People v. Weaver (1982), 92 Ill. 2d 545, 555, 442 N.E.2d 255.) However, it is necessary that “the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime.” People v. Williams (1977), 66 Ill. 2d 478, 484-85, 363 N.E.2d 801; People v. Magnafichi (1956), 9 Ill. 2d 169, 137 N.E.2d 256.

While it is defendant’s position that “speculation, conjecture and (possibly) probability” point to defendant as the offender in the instant case, we believe the State has met its burden in its showing that the circumstantial evidence involved here is so strong as to negate all reasonable hypotheses of innocence and lead only to the conclusion that this defendant committed this murder. From our examination of the record, we conclude that the evidence here has satisfied this standard.

Defendant cites a string of cases which stand for the basic proposition that where proof is entirely circumstantial and there is a reasonable hypothesis arising from the evidence which is consistent with the innocence of the defendant, then this hypothesis must be adopted. (See e.g., People v. Giangrande (1981), 101 Ill. App. 3d 397, 400, 428 N.E.2d 503.) Although we agree with defendant’s accurate restatement of the law, we find this rule inapplicable to the case at bar, as we believe there is no reasonable hypothesis in existence which is consistent with defendant’s innocence.

In the instant case, we are presented not only with evidence of defendant’s motive and opportunity, but with many inconsistencies in defendant’s testimony regarding important occurrences preceding the discovery of the victim’s brutally beaten body on August 27, 1981.

Initially we must consider defendant’s possible motive for committing this crime. It has been established by no fewer than three prosecution witnesses — William Banik, Robert Ganan and John Zadelak — that defendant was so angered by the disappearance of his briefcase on August 27, 1981, that he became completely preoccupied with its return. Because he believed Banik, Young or the victim to have taken his briefcase, defendant repeatedly badgered these men as to its whereabouts. His growing anger was illustrated by both his threat to Ganan that he knew “one of them took it” (referring to Banik, Young or the victim) and if he didn’t get any satisfaction “he would get it on the street,” to his locking of the lobby door so as to prevent Banik and Young’s exit from the building. This anger and agitation carried even further in time towards the end of defendant’s shift as Zadelak recalled defendant’s loud voice when he stated, “Someone stole my briefcase and if I lose my job because of it someone will pay.”

Defendant’s suspicion seemed to specifically point towards the victim when he returned to the fifth floor for a second time to question the victim, thereby demanding that he produce identification; he had not demanded this from anyone else that evening. Defendant’s own testimony that the victim threatened to sue him for his continued harassment provides yet another reason why defendant would wish retaliation against the victim.

Both the testimony of the State’s witnesses, as well as that of defendant, provide a 15-minute time gap in which there is no plausible explanation of defendant’s absence other than an opportunity for him to have attacked the victim.

The defense posits that it was impossible for defendant to leave the security area, go through a door, down some stairs, brutally beat and batter the victim in the utility room and then totally bathe and cleanse himself and his clothing of all the remnants of the assault. Further, the defense states that no evidence was located that would implicate defendant in the crime.

We, however, find that the stipulated results of the microanalysis done on defendant’s clothing and numerous personal articles very much lead towards defendant’s implication in the attack. While it is defendant’s contention that he got blood on his shoes when he peered into the utility room on his way back from making the ADT “pull,” we find it difficult to understand just how this version explains the existence of type A(N) blood on his memo book and trousers, as well as the presence of human blood on such items as his umbrella, radio strap, tape dispenser, handcuffs, and his metal nametag, an item he claimed to have taken off his shirt and put in his drawer along with his memo book before his trip to the basement at 5 a.m. Cigler’s testimony that he received a call at 7:40 a.m. from ADT that the 7:30 a.m. “pull” had not been made, as well as the police officer’s testimony that he had not seen defendant near the utility room, make defendant’s story as to how he got the victim’s blood on his clothes even more implausible.

Finally, defendant’s testimony regarding the disappearance of his uniform shirt is riddled with inconsistencies, as is his testimony pertaining to the timing of the evening’s events. In addition, the State argues that defendant’s claim that he was seated at the security desk from 5:30 a.m. to 7:30 a.m., just 35-40 feet from the stairway leading to the utility room, but heard and saw nothing of the attack, is highly incredible; we agree. Cigler testified that upon his discovery of the victim in the utility room, he noticed that the door leading up to the lobby was open, as a stick was propped behind it. It is hard to believe that a security guard, trained to be observant, would hear and see “nothing” through an open door.

While there is no burden on defendant to prove his innocence, if he elects to explain the circumstances, he is bound to tell a reasonable story or be judged by its improbabilities and inconsistencies. (People v. Neal (1968), 98 Ill. App. 2d 454, 458, 240 N.E.2d 784.) Where the evidence is conflicting, it is the prerogative of the trier of fact to ascertain the truth. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) In a bench trial, it is the province of the trial court to determine the credibility and weight of the testimony, to resolve the inconsistencies and conflicts therein, and to render its decision accordingly. (See People v. Stringer (1972), 52 Ill. 2d 564, 568, 289 N.E.2d 631.) A reviewing court will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

We, therefore, conclude that defendant was proved guilty of the offense of murder beyond a reasonable doubt.

Defendant next contends that his waiver of the right to a jury trial was ineffective by virtue of a constitutionally inadequate admonition. He proffers a line of precedent which establishes that a trial court has a duty to ensure that defendant’s waiver of a jury trial is not only expressly made, but also understanding made. See People v. Surgeon (1958), 15 Ill. 2d 236, 238, 154 N.E.2d 253.

The State, however, maintains that the law is also clear that the failure of a defendant to raise an issue in a written motion for a new trial constitutes a waiver and the issue cannot be urged as a ground for reversal on review. (See People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227.) Further, the State contends that since this waiver rule applies to constitutional as well as other issues (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856), defendant has waived his right to raise this issue on appeal.

In the case at bar, all of these rules have some relevance to the position of instant defendant. However, defendant here additionally contends that he was denied the effective assistance of counsel. His claim is based in part upon his counsel’s failure to file a post-trial motion. Because his claim of ineffective assistance of counsel is based upon counsel’s failure to file a post-trial motion, we are compelled on appeal to determine whether any such contention is of substantial merit. (People v. Knowles (1979), 76 Ill. App. 3d 1004, 1009, 395 N.E.2d 706; People v. Lamparter (1977), 56 Ill. App. 3d 823, 827, 371 N.E.2d 997.) Consequently, we address the merits of defendant’s contention.

Section 103 — 6 of the Code of Criminal Procedure (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 6) provides every person a right of trial by jury unless understandably waived by defendant in open court.

While there is no specific formula for determining whether a defendant’s waiver of his right to a jury trial is understandably made (People v. Lewis (1980), 89 Ill. App. 3d 840, 843, 412 N.E.2d 565), it is well established that whether a waiver is knowingly made depends on the facts and circumstances in each particular case. People v. Lewis (1981), 88 Ill. 2d 429, 437-38, 430 N.E.2d 994, cert. denied (1983), 456 U.S. 1011, 75 L. Ed. 2d 932, 103 S. Ct. 1501; People v. Richardson (1965), 32 Ill. 2d 497, 499, 207 N.E.2d 453.

The common law record before us reflects a waiver, which is presumed to be correct unless other facts in the record are contradictory. (People v. Gentry (1977), 48 Ill. App. 3d 900, 363 N.E.2d 146.) Further, our examination of the record presents us with the following jury waiver colloquy:

“THE CLERK: People of the State of Illinois versus George Purnell.
MR. "VANCE: For the record, Lawrence Vance, V-A-N-C-E, your Honor. At this time I would tender the written jury waiver to the court and ask it be made a part of the record.
THE COURT: This is information No. 81 — 7011, which is a four-count information, Count 1 of murder, Count 2 of murder, Count 3 of armed violence. The Court will correct itself. It is only a three-count indictment. Is this your signature?
THE DEFENDANT: Yes, your Honor, it is.
THE COURT: You understand by signing this document you are giving up your right to have twelve men and women picked by the State and your attorney to decide your guilt or innocence of this particular charge?
THE DEFENDANT: Yes, your Honor, I understand.
THE COURT: Understanding that, do you still wish to waive your right to a jury trial?
THE DEFENDANT: Yes, sir.
THE COURT: All right, jury waiver is herewith made a part of the record of today’s proceeding. We will pass the case for five minutes.”

Given this colloquy, defendant contends that because the trial court did not query defendant as to any threats or promises made to him in connection with his waiver, this admonition was “hardly constitutionally inadequate.” He asks this court to “read between the lines” and make the inference that something based on matters not within the record happened before defendant’s waiver which led to his waiver of “necessity.”

We, however, find no merit in defendant’s contentions. Here we are presented with a defendant who is an individual of some ability and education; he graduated from elementary and high school and has had three years of college training in the law enforcement field. Further, he has no history of mental illness or retardation.

In the present case, we believe that the trial court has performed its duty in a satisfactory manner. Based upon defendant’s educational background, his statements that he understood the consequences of the jury waiver and that he did sign the waiver form, and absent any contrary evidence in the record that defendant was unable to comprehend the waiver proceeding, we believe there has been an adequate showing that defendant’s waiver was both knowingly and understandably made.

We now turn to defendant’s final contention that he was denied effective assistance of counsel. He maintains that his counsel’s lack of preparedness was demonstrated by his failure to file pretrial motions for discovery, suppression of evidence, bill(s) of particulars, expert(s) (e.g., fingerprints and blood analysis), or evidence of thefts or break-ins into the 200 North Michigan Building where the doors on either Lake Street or Garland Court were used to enter the building. In addition, he contends that his counsel’s failure to make motions for a directed verdict as well as his failure to file a post-trial motion further indicate that he received ineffective assistance of counsel and is therefore entitled to a new trial.

Defendant cites People v. Brinson (1980), 80 Ill. App. 3d 388, 399 N.E.2d 1010, as being instructive to our resolution of the present case. In Brinson, the defendant contended that he was denied the effective assistance of his counsel based on three grounds: (1) his counsel failed to file a motion to suppress his inculpatory statement to the police; (2) his counsel did not move to suppress a pretrial or in-court identification by the victim; and (3) his counsel failed to develop and pursue the only trial strategy which was logical under the circumstances of the case. The Brinson court reversed defendant’s conviction for armed robbery and held that defendant’s representation by private counsel in this case was ineffective to such a degree that it was brought to the “sham or farce level, through [the] failure to adopt or present any logical or available theories of defense.” 80 Ill. App. 3d 388, 394.

We believe the facts in our instant case to be distinguishable from those in Brinson. In the present case, defendant’s privately retained counsel made vigorous arguments regarding the possibility that someone other than defendant had the opportunity to commit the attack on the victim; aggressively cross-examined building superintendent Cigler with regards to the geography of the blood which was splattered around the victim’s body; provided a very competent business-records argument against the admission of two of CPP’s office reports, successfully excluding one report which the prosecution attempted to get into evidence; his trial objections were on numerous occasions sustained; and he attempted to rehabilitate his witness when faced with defendant’s inconsistent statements to police.

In Illinois, a single standard is now employed to determine the ineffective assistance of counsel. (People v. Royse (1983), 99 Ill. 2d 163, 170, 457 N.E.2d 1217.) The competency of counsel is presumed so that only strong and convincing proof of incompetency can overcome the presumption. (People v. McCraven (1981), 97 Ill. App. 3d 1075, 1077, 424 N.E.2d 23.) It is the burden of defendant to establish his trial counsel’s actual incompetence through a showing of the substantial prejudice resulting therefrom. (People v. Witherspoon (1973), 55 Ill. 2d 18, 21, 302 N.E.2d 3.) A court of review will not reverse a conviction based on the incompetency of retained counsel, unless this representation produced substantial prejudice to the defendant without which the result would probably have been different. (People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203.) “A defendant is entitled to competent, but not perfect representation.” People v. Ortiz (1981), 96 Ill. App. 3d 497, 503, 421 N.E.2d 556.

Defendant complains that his counsel’s failure to call four potential defense witnesses (two of whom were defendant’s parents) named in his single pretrial motion to testify, prejudiced him. Defendant, however, fails to suggest what testimony, if any, these witnesses could have given. With regard to defendant’s contention that his counsel failed to file any pretrial discovery motions, it must be noted here that defendant’s trial counsel was the second attorney on defendant’s case. He filed his appearance on January 12, 1982; at this time, the State’s extensive answer to discovery had already been filed with the court. An amended answer to discovery was later sent to defendant’s trial counsel on September 3, 1982. Therefore, the record is clear that defendant’s trial counsel had access to all discoverable materials prior to the commencement of trial.

Defendant also complains that his attorney made no pretrial motions to suppress or motions to produce certain evidence. Whether or not a motion to suppress should be filed is a matter of trial tactics which seldom have any bearing on issues of incompetency of counsel. (People v. Hines (1975), 34 Ill. App. 3d 97, 100, 339 N.E.2d 489.) In addition, defendant has not shown that such a motion would have been granted, nor that the outcome would have been different had such a motion been granted.

Finally, defendant alleges that incompetency is evident from his counsel’s failure to file a post-trial motion for a new trial. Where there are no substantial grounds for a new trial, a failure to move for one cannot demonstrate incompetency. (People v. Cohen (1980), 83 Ill. App. 3d 706, 404 N.E.2d 976.) As our disposition of this appeal shows, defendant has not demonstrated that he is entitled to a new trial.

Our examination of the entire record before us indicates that defendant was afforded effective assistance of counsel. In our judgment, defendant has shown neither incompetency nor the resultant prejudice necessary to be entitled to a new trial.

Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, this court awards the State costs in the amount of $50.

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

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.

      Deceased by the time this case went to trial.