author: JUSTICE O’CONNOR

text:
    RANDELL LASTER, a Minor, by Ora Warnsby, his Mother and Next Friend, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, Defendant-Appellee.
    First District (1st Division)
    No. 80-2858
    Opinion filed February 22, 1982.

      William J. Harte, Ltd., of Chicago, for appellant.
    Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll and Thomas H. Neuckranz, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Randell Laster, a seven-year-old minor, lived with his family in an apartment leased from defendant, Chicago Housing Authority. He was injured on June 26,1969, when he fell from a window when a window screen gave way. His suit against defendant for damages was dismissed and judgment entered for defendant. Plaintiff appeals.

His amended complaint alleged: the lease was renewed each year prior to June 26,1969; on many occasions prior to the renewal in March of 1969, plaintiff’s mother, Ora Warnsby, had complained of the dangerous condition of the screens in the apartment, particularly to the danger to her children. Specifically, she was promised by representatives of defendant that the screens would be repaired or otherwise made safe against the possibility of her children falling out of the windows. This promise was made in consideration of the renewal of said dwelling lease. On and prior to June 26,1969, defendant was guilty of negligence in one or more of the following respects: (a) in failing to repair or otherwise correct the danger from the defective screen in the window through which plaintiff fell; (b) in permitting the screen to remain loose, insecure and defective, so that the screen was likely to fall out when slight pressure was exerted upon it; and (c) in furnishing and maintaining the said screen with flanges, grooves and hinges which were inadequate, insecure and defective, so that the screen was likely to fall out when slight pressure was exerted upon it. As a proximate result of one or more of these negligent acts or omissions, plaintiff sustained severe and permanent injuries. It further alleged that at the time of the occurrence defendant was insured.

Defendant’s motion to dismiss alleged, among other matters, that in paragraph 6 of the written lease the tenants covenanted to keep their apartment in a good state of repair and the landlord did not covenant in the lease to repair the screens or otherwise keep the apartment in a good state of repair; therefore, defendant had no duty to repair said window screens or otherwise make them “safe against the possibility of children falling out of the windows” and cited in support Crawford v. Orner & Shayne, Inc. (1947), 331 Ill. App. 568, 73 N.E.2d 615; Rogers v. Sins (1953), 349 Ill. App. 353, 110 N.E.2d 643; Gasquoine v. Bornstein (1956), 10 Ill. App. 2d 423, 135 N.E.2d 121, appeal denied (1956), 9 Ill. 2d 627, and Scheffler v. Ringhofer (1966), 67 Ill. App. 2d 222, 214 N.E.2d 575.

The trial court dismissed on the ground that plaintiff’s amended complaint failed to allege any common law duty owed by defendant to plaintiff.

We agree with the trial court. The law is well settled. In addition to the above-cited cases, see also McNairy v. Kup Realty Co. (1965), 59 Ill. App. 2d 463, 208 N.E.2d 88; Madison v. Reuben (1970), 128 Ill. App. 2d 11, 262 N.E.2d 794, appeal denied (1970), 44 Ill. 2d 587; and Jones v. Chicago Housing Authority (1978), 59 Ill. App. 3d 138, 376 N.E.2d 26.

In opposition, plaintiff cites cases from other jurisdictions: Shaw v. Butterworth (1931), 327 Mo. 622, 38 S. W.2d 57; Baker v. Dallas Hotel Co. (5th Cir. 1934), 73 F.2d 825; Crosswhite v. Shelby Operating Corp. (1944), 182 Va. 713, 30 S.E.2d 673. These cases predate Crawford, Rogers and Gasquoine. In fact, Gasquoine rejected their reasoning, distinguished their holdings and cited cases from New Jersey, Massachusetts, Louisiana, California and Nebraska holding as does Illinois. (10 Ill. App. 2d 423, 424-25.) We see no reason to depart from the settled Illinois law.

Plaintiff further argues that despite the settled law his complaint should not have been dismissed for the further reason that it alleged facts sufficient to establish a binding covenant on defendant’s part to repair the screens in the apartment. We disagree.

As plaintiff concedes, a landlord generally has no liability regarding the leased portion of the premises except where a covenant to repair exists. Lulay v. South Side Trust & Savings Bank (1972), 4 Ill. App. 3d 483, 280 N.E.2d 802.

As stated above, the amended complaint alleged that the lease was renewed each year and that prior to the renewal in March 1969 plaintiff’s mother had on many occasions complained of the dangerous condition of the screens, particularly to the danger to her children, and that she was promised by representatives of defendant that the screens would be repaired or otherwise made safe against the possibility of her children falling out of the window, and that this promise was made in consideration of the renewal of the lease.

The lease was attached to the amended complaint. Its provisions, where they conflict with the allegations, negate such allegations. Ford v. University of Illinois Board of Trustees (1977), 55 Ill. App. 3d 744, 371 N.E.2d 173.

The lease provides for an initial term to the end of the month during which the lease began (March 1966) and thereafter for a continuous automatically renewing term measured by successive calendar months. The tenancy continues unless and until either party gives the other proper written notice of termination. This is clearly inconsistent with the allegations of the complaint that the “lease was renewed each year prior to June 26,1969” and that there had been a “renewal in March of 1969.” Because there was no annual renewal, the lease continued in effect unless and until terminated. Obviously there could not have been any “consideration” for the renewal of the lease. Wagner v. Kepler (1951), 411 Ill. 368, 104 N.E.2d 231.

A promise on the part of the landlord with respect to the premises which is made once the tenancy begins is a nudum pactum and is unenforceable unless there is a separate consideration therefor. (Margolen v. deHaan (1922), 226 Ill. App. 110; Strong v. Soodvoisky (1908), 141 Ill. App. 183; Crawford v. Orner & Shayne, Inc. (1947), 331 Ill. App. 568, 73 N.E.2d 615.) In those cases, the promise was merely a promise to repair. The present case is an a fortiori situation where plaintiff seeks to impose an undertaking more onerous than that imposed by the common law, i.e., making the screens safe against the possibility of children falling out of the window.

There is no separate consideration alleged other than the pleader’s conclusion — inconsistent with the lease agreement and therefore not to be accorded any value (Ford) — that the “promise was made in consideration of the renewal of said dwelling lease.” Because such is clearly not consideration, the complaint fails to set forth any enforceable duty on the part of the landlord other than the duties imposed by common law, which do not encompass providing (or maintaining or repairing) window screens which save children from falling through open window spaces.

Because of the conclusion we have reached, we find it unnecessary to consider defendant’s argument in support of the trial court’s dismissal that it is protected under section 2 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 2 — 106), from liability based on the claimed promise by its representative to repair or otherwise make the screens safe.

Plaintiff’s contention that the fact that defendant had insurance constitutes a waiver of immunity is without merit. First, under the provisions of the lease plaintiff’s parents undertook the obligation of keeping the premises “in good state of repair and maintenance.” Second, although the lease reserves to defendant (as landlord) the right to enter the apartment and to make such repairs as it may deem necessary, that, without more, does not impose on the landlord a duty to repair. (Bielarczyk v. Happy Press Lounge, Inc. (1980), 91 Ill. App. 3d 577, 414 N.E.2d 1161.) This is not a case where a landlord undertook to make repairs but did it negligently.

The trial court correctly dismissed the amended complaint.

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

Judgment affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVE ROBINSON, Defendant-Appellant.
    First District (2nd Division)
    No. 79-2487
    Opinion filed February 23, 1982.

      James J. Doherty, Public Defender, of Chicago (Marc Fogelberg, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Ann L. Benedek, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

At the commencement of defendant’s trial for armed robbery and murder, for which offenses he was convicted, prospective jurors were questioned with regard to their views on capital punishment. Sixteen of such jurors were excused for cause because of their opposition to the death sentence. When the State elected not to seek the death penalty, defendant was sentenced to 60 years in the penitentiary for armed robbery and life imprisonment for murder. He appeals.

The issues presented by the appeal include whether: the death qualification of a jury is permissible at the guilt stage under the Illinois death penalty statute (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1); defendant was properly charged with armed robbery by information, whereas he had been charged only with murder in the preliminary complaint filed; and the trial court properly refused to instruct the jury concerning the testimony of a narcotics addict. For the reasons which follow, we affirm.

The preliminary complaint charged defendant with the murder of Kadir Hosein (“victim”). The State produced one witness at the preliminary hearing, Fulton Nelson, who, on April 21, 1978, at about 9:30 p.m., saw a Checker cab parked in front of his house at 2844 W. Walnut Street, in Chicago. He was on his way to buy some beer. A woman, Renee Record, was standing outside the cab. After walking 50 feet, Nelson heard a shot and turned in the direction of the cab. Thereafter, he heard a second shot and saw defendant leave the cab. Record and defendant ran past him toward Lake Street, and he thereafter continued on his errand. The court found probable cause with respect to the murder charge.

The State subsequently filed a four-count information containing two counts of murder, a third count of murder based upon the felony murder doctrine and a fourth count of armed robbery. Defendant moved to dismiss the armed robbery charge because there had been no probable cause finding thereon nor any evidence relating to that charge presented at the preliminary hearing. The motion was denied.

During argument preliminary to trial, the State advised the court that it would seek the death penalty unless something happened during the trial which would change that intent. The defense moved to prohibit prospective jurors from being interrogated on their views of the death penalty at the guilt phase of the trial and sought to require a bifurcated hearing, provided for by statute (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d)), so as to avoid “Witherspooning” the jury. That defense motion was denied.

The only witnesses to testify at trial were produced by the State. Their testimony included police descriptions of their investigations upon responding to the call of a man shot in a taxi at 2844 W. Walnut Street, Chicago, at 9:40 p.m. on April 21, 1978. The victim was found slumped over in the front seat of the cab, bleeding profusely from the forehead. The cab was partially on the curb with its engine running and the driver’s window shattered. Two .45-caliber casings were recovered from the street nearby, and a spent bullet was recovered from the floor of the driver’s compartment of the cab. About two weeks later, a .45-caliber automatic was recovered from a person who loaned defendant’s brother $60 and took the gun as collateral. The spent bullet and two casings were found to have been fired from the recovered automatic.

State witnesses as to the occurrence described the events involved in the shooting. The thrust of their testimony was that defendant and Renee Record were seen getting out of the cab at the time in question. Defendant was seen snatching something from the victim who was heard to say “I ain’t got no more money.” The victim returned to the cab, put it in gear and was then shot by defendant. The cab rolled across the street over the curb and into a tree. Defendant and Record fled.

Mary Record, Renee’s mother, testified that Renee had been a heroin addict for two years and on the night of the shooting had left her house at about 9 p.m. She next spoke to her daughter on April 30, 1978. She arranged a meeting with Renee and defendant at 87th Street and the Dan Ryan Expressway, where arrests were effected.

Renee Record testified that when arrested she was currently charged with two armed robberies in which she admitted participation. She was testifying for the prosecution in order to lessen her sentence. She had known and lived with defendant for three years and, in April 1978, had been addicted to heroin for the previous three years. After leaving her mother’s house on April 21 she and defendant were dropped off downtown and thereafter caught a Checker cab. They directed the driver to Walnut and Mozart Streets where Renee’s grandmother lived. There, Renee got out of the cab and heard a shot from inside the vehicle. She saw defendant and the driver fighting, reentered the cab and grabbed the driver around the waist. The latter stopped fighting and they all emerged from the cab. Defendant asked if she “got the money,” to which she responded “no” and defendant said “damn.” The victim then told defendant that the latter had all the money he had. Defendant told the victim to get back into the cab and told Renee to go on ahead. Renee heard the cab door slam and then heard a shot, turned around and saw defendant with a gun in his hand and the cab rolling slowly. The second day after the shooting she saw defendant give his gun to his brother, Terry. He told Terry to sell the gun for him. Later that day his brother gave defendant some money.

Another witness testified that on April 24, 1978, defendant’s brother came to his office with a .45-caliber automatic. He gave the brother $60 and the gun was taken as collateral. The police subsequently came and took the gun from him.

Defendant’s motion for a directed verdict at the close of the State’s case was denied. No evidence was offered by the defense, aside from a stipulation. The jury found defendant guilty of armed robbery and murder, and he was sentenced as first noted in the opinion.

I

The defense maintains that “death qualification” of potential jurors at the guilt stage of trial is impermissible in Illinois under the Illinois death penalty statute and the sixth amendment to the United States Constitution. Defendant acknowledges that the prosecution is entitled to exclude such jurors as are opposed to capital punishment in all cases and those whose views on capital punishment would impair their impartiality in deciding guilt or innocence, from a jury considering a case in which a death sentence may be sought, citing Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. Nevertheless, because the death penalty statute provides for a bifurcation of trial and sentencing, and authorizes selection of a new jury at the sentencing stage for “good cause shown” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(d)(2)(C)), the defense maintains that the State’s rights may be protected and a biased jury avoided if the jury is qualified as to this issue after, instead of before, conviction.

The supreme court of Illinois has recently twice considered the bifurcated trial procedure suggested by defendant, in People v. Lewis (1981), 88 Ill. 2d 129, 420 N.E.2d 1346, and in People v. Gaines (1981), 88 Ill. 2d 342. In Lewis, as here, the defendant argued that a second voir dire examination be routinely conducted before the sentencing phase of a murder case in which the prosecutor seeks the death penalty. The court held there that in the absence of a second jury, the previous jury impaneled at the guilt stage would be in a position to consider the entire record and thereby allow a more perceptive and complete analysis of aggravating and mitigating factors, even in cases where no evidence was presented in that phase by the defendant.

The defense also argued in Lewis that qualifying the jury in compliance with Witherspoon rules results in a conviction-prone jury. The court first noted that although a jury may be qualified in violation of Witherspoon, the validity of the conviction would not necessarily be affected, citing Adams v. Texas (1980), 448 U.S. 38, 65 L. Ed. 2d 581, 100 S. Ct. 2521; People v. Wright (1974), 56 Ill. 2d 523, 535, 309 N.E.2d 537; People v. Clark (1972), 52 Ill. 2d 374, 392-93, 288 N.E.2d 363; People v. Brooks (1972), 51 Ill. 2d 156, 167, 281 N.E.2d 326. The court then observed that cited studies reveal very limited and small variations in results which were not persuasive of the allegation that qualifying a jury in accord with the principles of Witherspoon results in a jury biased in favor of conviction.

In People v. Gaines, the supreme court questioned whether there was power to adopt a procedure requiring that a new jury be impaneled for a sentencing hearing in every case under section 9 — 1(d) and observed that its adoption could present potential constitutional problems, citing People v. Lewis. The supreme court also rejected the related argument that a jury composed entirely of persons who are not opposed to the death penalty is “conviction-prone.” 88 Ill. 2d 342, 358. Accord, People v. Person (1981), 102 Ill. App. 3d 474; and People v. Hamilton (1981), 100 Ill. App. 3d 942, 427 N.E.2d 388.

Defendant would distinguish People v. Lewis and People v. Gaines on the ground that in each of those cases the death penalty was actually sought, whereas here the prosecution, although stating the intent to seek the death penalty and thereby excluding jurors under Witherspoon, elected, after the guilt stage, not to do so. In light of the supreme court’s finding in both Lewis and Gaines that no measurable potential prejudice arises at the guilt stage of the trial, defendant’s argument here must fall. Further, at this point in the trial the jury would have no way of knowing whether the prosecution will exercise its discretion to pursue the death penalty or not, if, indeed, the prosecution itself knows. The jury in the case before us, therefore, was in no different position than were the juries in Lewis and Gaines at this stage of the trial.

Defendant argues further that he was denied his right to a representative jury in the instant proceedings. In excluding for cause those jurors who were unalterably opposed to the death sentence, as well as peremptorily excluding jurors with scruples against it but who were not unalterably opposed thereto, defendant urges that the State deprived him of a jury composed of a representative cross-section of the community which hold those predilections. Defendant cites Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, which held that a Louisiana statute precluding women from serving as jurors deprived the defendant there of a jury selected from a representative cross-section of the jury-eligible community of which 53% was comprised of women. We see no legitimate analogy between sex based exclusion of jurors and the exclusion of jurors upon grounds that they would be objectively unable to consider a statutory alternative in making a decision as to whether or not a death penalty should be imposed upon a defendant at whose trial they were obligated to follow all constitutional laws of the State and of the United States. The death penalty has been upheld as constitutional in this State in People v. Brownell (1980), 79 Ill. 2d 508, 404 N.E.2d 181, cert, dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59.

The defense suggests that should the death qualification at the guilt stage be found permissible, defendant’s rights nevertheless were violated when nine jurors were excluded in the case at bar who are alleged to have affirmatively stated that their position would not affect their partiality with respect to guilt or innocence. Our examination of the colloquies between court and jurors and counsel and jurors persuades us that the standards of Witherspoon were met in that the nine made unmistakably clear either that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or that their attitude toward the death penalty would prevent them from making an impartial decision as to defendant’s guilt. (391 U.S. 510, 522-23 n.21, 20 L. Ed. 2d 776, 785 n.21, 88 S. Ct. 1770, 1777 n.21.) Each of the nine prospective jurors stated during voir dire that regardless of the facts which may be presented at trial the juror would vote against the death penalty. When asked whether they could be objective on the question of guilt or innocence, five of them were equivocal at best. We find no basis in the record to support defendant’s argument here. See People v. Gaines.

II

With respect to the argument that he was improperly charged with armed robbery by information although the preliminary complaint charged him only with murder, defendant argues that section 111 — 2(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. Ill — 2(e)), which authorizes the State to add new charges beyond those brought in a complaint filed at the preliminary hearing, requires that evidence of the offense to be charged by information must have been adduced at the preliminary hearing before such new charges are brought. In People v. Redmond (1977), 67 Ill. 2d 242, 367 N.E.2d 703, the supreme court held that an information setting forth offenses not charged at the preliminary hearing but arising from the same transaction as that involved at the preliminary hearing does not violate due process. The court in Redmond emphasized that the purpose of a preliminary hearing in Illinois is to insure against unduly detaining a person in custody. An accused would be entitled to a second preliminary hearing only if the new charge was “completely unrelated” and “fundamentally different” from the offenses originally charged. (67 Ill. 2d 242, 248.) In People v. Nash (1980), 90 Ill. App. 3d 612, 413 N.E.2d 16, the appellate court rejected the defendant’s argument there that a charge of aggravated kidnapping was improper where it was added to a charge of robbery after a preliminary hearing court found no probable cause for a charge of unlawful restraint, a lesser included offense of aggravated kidnapping. The appellate court reasoned that once probable cause had been found and the accused lawfully detained, the purpose of the preliminary hearing was satisfied.

We find here both that the charge of armed robbery was related to the murder charge set forth in the preliminary complaint, and that the purpose of the preliminary hearing was satisfied by justifiably detaining defendant in custody.

Ill

As his last argument, defendant complains of the trial court’s refusal to instruct the jury concerning the testimony of Renee Record, allegedly a drug addict. The instruction sought was as follows:

“The Court instructs the jury that when determining the evidentiary worth of the testimony of a narcotics addict, the jury must not judge the testimony as it would that of another type of witness. The jury must look upon the testimony of a narcotics addict with great suspicion and act upon it with great caution.”

Defendant maintains that although the trial court did instruct the jury with general Illinois Pattern Jury Instructions, Criminal, No. 1.02 (1968) credibility instruction, narcotics addiction is appropriate for special instruction, and the instruction submitted by defendant is identical to that approved in People v. Phillips (1970), 126 Ill. App. 2d 179, 261 N.E.2d 469. The instruction in Phillips, however, was criticized in People v. Smith (1979), 70 Ill. App. 3d 250, 257, 387 N.E.2d 901, in which the court noted that the instruction, couched in language of the present, referred to a witness who in the past had been addicted to narcotics rather than at the time of the trial. An instruction such as this, phrased in the present tense, does not focus upon drug addiction at the time the crime is observed, and where, as here, no evidence is adduced supporting the inference of present use, it properly may be refused. (People v. Banks (1981), 98 Ill. App. 3d 556, 565-66, 424 N.E.2d 898; People v. Bryant (1980), 85 Ill. App. 3d 836, 843, 407 N.E.2d 597.) An instruction must be supported by evidence introduced at trial. People v. Mitchell (1975), 34 Ill. App. 3d 311, 320, 340 N.E.2d 226.

For the foregoing reasons, defendant’s conviction and sentences cannot be disturbed.

Affirmed.

STAMOS, P. J. and DOWNING, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL L. GRANT, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2916
    Opinion filed February 23, 1982.

      Ralph Ruebner and Richard F. Faust, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Rartnik, and David A. Shapiro, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Following a bench trial, defendant, Carl Grant, was found guilty of home invasion, attempted rape, armed violence, and burglary. (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 11, 8 — 4, 33A — 2,19—1.) The trial court ruled that burglary and attempted rape were the lesser included offenses of home invasion and armed violence, respectively, and sentenced defendant to two concurrent 12 year terms. This appeal raises two issues, namely, whether the warrantless arrest of defendant in a third party’s home was constitutionally permissible, and, whether it was proved beyond a reasonable doubt that defendant possessed a dangerous weapon when he entered the victim’s dwelling and attempted to rape her. For the reasons set forth below, we affirm.

A description of evidence relevant and material to the appeal will appear in the body of the opinion.

I

Defendant argues that his arrest was improper under the principles announced in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. Payton, however, did not address the question presented here, namely, whether the police are required to obtain an arrest warrant prior to entering a third party’s home to arrest a suspect for purposes of protecting the latter’s privacy interest. We find that the record here supports the trial court’s oral finding that defendant was not arrested in his home. Defendant’s arrest card and affidavit of assets and liabilities list his home address at 14256 Lincoln, Dixmoor, Illinois, not the Regency Lounge, located at 14206 Wood, where he was arrested. The Lincoln address is also listed as defendant’s home in the report prepared by the police and social investigation report prepared by the Cook County Adult Probation Department. When the officers arrived at that address minutes after the incident, defendant’s mother answered, stating that she had not seen him since Friday when he went to serve his work release at the county jail.

Assuming, arguendo, that the police are constitutionally required to obtain an arrest warrant prior to entering a third party’s home to effectuate an arrest, defendant’s assignment of error is still without merit in view of the exigent circumstances surrounding his arrest. (People v. Abney (1980), 81 Ill. 2d 159,407 N.E.2d 543.) The following factors are of particular significance in assessing the presence of exigent circumstances and the reasonableness of arrest, namely, whether: (1) the time period between the commission of the crime and the arrest creates a need for prompt action or falls within the “spirit” of the hot pursuit exception; (2) there was a deliberate or unjustified delay by the police during which time a warrant could have been obtained; (3) the suspect was armed or exhibited some sign of a violent character; (4) the officers were acting on a “clear showing” of probable cause; (5) defendant was clearly identified as the offender; (6) there is strong reason to believe that defendant was in the premises entered; and (7) the entry was peaceful. 81 Ill. 2d 159,169-73.

Applying these considerations to the instant controversy, it becomes readily evident that the challenged conduct was constitutionally permissible. First, only 30 minutes elapsed between the time of the offense and the time of defendant’s arrest. Any postponement of the pursuit to obtain a warrant would have impeded the promising police investigation already underway, and possibly provided the extra time defendant needed to flee capture entirely. (United States v. Robinson (D.C. Cir. 1976), 533 F.2d 578, 583.) Further, the period between the offense and defendant’s arrest was one-third of the lM-hour interval which Abney found to be within the spirit of the “hot pursuit” exception. (Cf. People v. Barbee (1966), 35 Ill. 2d 407, 408-12, 220 N.E.2d 401.) Second, in view of the short time period, it is obvious that there was no deliberate or unjustified delay by the officers during which time a warrant could have been obtained. Third, one of the arresting officers could have reasonably believed that defendant could be armed since the victim had told him that the offender threatened her with a “.38”. Defendant’s action indicated a violent character; defendant was accused of breaking into the victim’s home at 3 a.m. and attempting to forcibly rape her while armed. Fourth, the officers acted upon the victim’s statement which was in and of itself a clear demonstration of probable cause. The victim saw the offender, whom she had previously known, described the offense, and identified the assailant by name. Fifth, defendant thus was clearly identified as the offender. (People v. Lumpkin (1975), 28 Ill. App. 3d 710, 329 N.E.2d 262.) Sixth, one of the investigating officers had knowledge that defendant could be found at the Regency Lounge. Finally, the police officers entered the premises in a peaceful manner while the door was open. No violence of any kind was employed by the officers. People v. Abney (1980), 81 Ill. 2d 159, 173, citing Miller v. United States (1958), 357 U.S. 301, 2 L. Ed. 2d 1332, 78 S. Ct. 1190; State v. McNeal (W. Va. 1978), 251 S.E.2d 484, 488-89.

The purported failure of the arresting officers to announce then-purpose and authority before entering the apartment does not per se violate the constitution; however, it may influence whether subsequent entry to arrest or search is constitutionally reasonable. (People v. Wolgemuth (1977), 69 Ill. 2d 154, 166, 370 N.E.2d 1067.) The evidence adduced at a hearing on defendant’s motion to quash and suppress does not prove that the police failed to announce their authority and purpose before their entry; indeed, the record is silent on the matter. Since the burden of proof was on defendant at this hearing (People v. Potts. (1978), 58 Ill. App. 3d 550, 553, 374 N.E.2d 891), his contention is untenable and unsubstantiated. Even if defendant had met his burden by proving that the police had failed to announce, this failure can be justified by the exigent circumstances surrounding his arrest. (People v. Ouellette (1979), 78 Ill. 2d 511, 518, 401 N.E.2d 507; People v. Conner (1977), 56 Ill. App. 3d 565, 567, 371 N.E.2d 106.) Since the police were legitimately on the premises when they made the arrest, they acted wholly properly when they seized the air pistol in plain view on the dresser next to defendant’s bed and confiscated the steak knife from the jacket defendant requested. We find no error here.

II

Defendant maintains that he was not proven guilty beyond a reasonable doubt of the offense of armed violence and home invasion because the evidence does not show he was armed with a dangerous weapon when he entered the victim’s dwelling and attempted to rape her. Relying on People v. Fiala (1980), 85 Ill. App. 3d 397, 406 N.E.2d 931, defendant emphasizes the fact that neither the victim nor her brother, who chased after defendant when the victim screamed, saw or felt him carrying a dangerous weapon or an object which appeared to be a weapon.

We decline to attach the same importance to this lack of direct evidence and find Fiala distinguishable. The defendant in that case never expressly stated that he was armed with a gun; nor was he apprehended with a dangerous weapon within two blocks of the scene of the crime. In contrast, defendant here expressly told the victim he had a .38 and within 30 minutes of the attempted rape, an air pistol was found on a dresser next to him, approximately one or two blocks from the scene of the crime. Moreover, one of the arresting officers testified that upon searching defendant’s jacket he found a steak knife with a 5-inch blade inside the left pocket. The victim’s brother had testified that the man he chased west from the victim’s house was wearing a jacket. Circumstantial evidence is sufficient to prove that a defendant was armed while committing an offense, even if no weapon was seen at the time of the offense (People v. Elam (1972), 50 Ill. 2d 214, 220, 278 N.E.2d 76; People v. DuPree (1979), 69 Ill. App. 3d 260, 264, 387 N.E.2d 391), and in the present case was sufficient for the fact-finder to conclude that defendant was armed with either a steak knife or an air gun at the time of the offense. The evidence is not so improbable, contradictory, unsatisfactory or inconclusive as to warrant setting aside defendant’s convictions. People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331; People v. Platter (1980), 89 Ill. App. 3d 803, 817, 412 N.E.2d 181.

Defendant lastly urges that the armed violence charge cannot be supported because an air gun cannot be deemed a “dangerous weapon” under the statute. (Ill. Rev. Stat. 1979, ch. 38, pars. 33A — 1, 33A — 2.) We disagree. See People v. Johnson (1981), 100 Ill. App. 3d 251, 426 N.E.2d 1041; People v. Greer (1977), 53 Ill. App. 3d 675, 368 N.E.2d 996; People v. Hill (1977), 47 Ill. App. 3d 976, 362 N.E.2d 470.

For the above cited reasons, defendant’s conviction and sentence must be affirmed.

Affirmed.

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


author: JUSTICE DOWNING

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., PlaintiffAppellee, v. VICTOR H. SUAREZ, Defendant-Appellant.—(HUMBERTO INGLES et al., Defendants.)
    First District (2nd Division)
    No. 81-643
    Opinion filed February 23, 1982.
    John Bernard Cashion, of Chicago, for appellant.
    Taylor, Miller, Magner, Sprowl & Hutchings, of Chicago (James J. Hoffnagle, of counsel), for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff State Farm Mutual Automobile Insurance Company (State Farm) sought a declaratory judgment that it was not legally obligated to provide liability coverage to its insured, defendant Victor Suarez (Victor), for claims for contribution asserted by defendants Humberto and Celeste Ingles (the Ingles). The circuit court granted State Farm’s motion for summary judgment. Victor appeals, contending (1) the insurance policy clause relied upon by State Farm is ambiguous and therefore unenforceable; and (2) the same clause is void because it violates public policy.

A two-car accident occurred on November 30, 1979. Estrella Suarez (Estrella), Victor’s wife, was a passenger in one car, which was driven by Victor with the owner’s permission. Humberto Ingles was the driver of the other car, allegedly as the agent of Celeste Ingles. State Farm had issued an automobile insurance policy on the Suarez car. Victor and Estrella were insureds under the policy.

Estrella and Victor sued the Ingles, claiming that they had suffered injuries as a result of the Ingles’ negligence in causing the accident. The Ingles responded with a counterclaim for contribution against Victor, alleging that he was in part responsible for Estrella’s injuries, and seeking recovery from that portion of any damage award Estrella might receive from them which was attributable to Victor’s negligence.

State Farm retained counsel to represent Victor in the contribution action but also filed this action for a declaratory judgment that it was not obligated to provide liability coverage to Victor. State Farm relied upon the so-called “family exclusion clause” contained in the policy. That clause provides:

“ ° ° ° There is no coverage e e for any bodily injury to * * * any member of the family of the insured residing in the same household as the insured. The term ‘insured’ as used here means the person against whom claim is made or suit is brought. * * * ”

There is no dispute that Victor is an “insured” within the meaning of this clause or that Estrella is a member of his family residing in the same household.

Both parties moved for summary judgment on the issue. In his motion, Victor argued that the language of the family exclusion clause did not refer to third-party contribution actions and was consequently vague, requiring its construction against State Farm. The circuit court granted summary judgment to State Farm, ruling that the family exclusion clause was clear and unambiguous and thus State Farm’s policy did not provide coverage to Victor in the contribution action. The court also found State Farm had no duty to indemnify Victor for any judgment against him in the contribution action.

Victor filed a motion for reconsideration together with a separate “alternative motion for summary judgment.” The latter motion asserted that the family exclusion clause violated public policy. The circuit court denied the motion for reconsideration and refused to consider the alternate summary judgment motion.

I

Victor reasserts his contention presented to the circuit court that the family exclusion clause is ambiguous and must be construed against State Farm.

A.

As Victor recognizes in his brief, this issue has been presented to Illinois courts in the past. Our courts have uniformly held family exclusion clauses similar or identical to the one involved here to be clear, concise, and unambiguous. (Country Mutual Insurance Co. v. Mooney (1978), 59 Ill. App. 3d 946, 949, 376 N.E.2d 439, appeal denied (1978), 71 Ill. 2d 607; State Farm Mutual Automobile Insurance Co. v. Hanson (1972), 7 Ill. App. 3d 678, 681, 288 N.E.2d 523, appeal denied (1973), 53 Ill. 2d 604; Miller v. Madison County Mutual Automobile Insurance Co. (1964), 46 Ill. App. 2d 413, 419, 197 N.E.2d 153.) Nevertheless, Victor argues that his position has merit because since those decisions were handed down, he believes the supreme court has imposed a “new and additional requirement” for testing the clarity of a provision, which was not met here.

As authority for this assertion, Victor refers to United States Fidelity & Guaranty Co. v. Globe Indemnity Co. (1975), 60 Ill. 2d 295, 327 N.E.2d 321. In that decision, the court ruled an insurance policy’s employee exclusion clause did not exclude insurance coverage for injuries sustained by an employee due to the negligence of an insured other than his employer. In reaching this result, the court stated, “[i]f liability for this latter type occurrence was to be excluded from the policy, it could have been clearly stated.” (60 Ill. 2d 295, 299.) Victor believes this language constitutes a new test.

We reject Victor’s analysis. First, no case since the Globe decision has referred to the quoted language in the manner claimed by Victor. Second, a careful reading of the Globe opinion demonstrates that such language is, in fact, merely dicta utilized to bolster the real basis for the result there. Clearly, deletion of this language from the opinion would not alter the result. No new requirement was enunciated in the Globe decision. Thus, the modes of analysis used in the cases previously cited which approved the type of clause involved here remain valid. On its face, the exclusion is clear and unambiguous.

B.

Victor argues that this case presents a novel circumstance because the cause of action involved is for contribution, rather than a direct action between family members. Thus, he implies, the previously cited precedents are inapplicable.

We are aware of the factual differences between this case and those prior decisions. However, in our opinion the holdings of those cases remain applicable here. An action for contribution in these circumstances is based upon bodily injury to an insured’s family member which gives rise to joint tort liability between the contribution-plaintiff and the insured. Were it otherwise, this case would be moot. This is because the insurance policy at issue provides coverage only for the insured’s liability for “bodily injury to others, and damage to or destruction of property.” (Emphasis added.) Were the contribution action viewed as proceeding from an injury (excess liability) to the Ingles, the policy obviously would provide no coverage for Victor. Under such facts, other jurisdictions have had no trouble ruling the family exclusion clause unambiguous. (See Parker v. State Farm Mutual Automobile Insurance Co. (1971), 263 Md. 206, 282 A.2d 503; Minners v. State Farm Mutual Automobile Insurance Co. (1969), 284 Minn. 343, 170 N.W.2d 223, and the cases cited therein.) We find that the family exclusion clause in this case is clear and unambiguous despite the fact that the insured is defending an action for contribution.

II

Victor contends that the family exclusion clause is void because it violates public policy.

A.

We first address State Farm’s claim that this court should not reach the merits of this contention because Victor failed to present it to the circuit court in a timely fashion. As noted, Victor did not raise this issue until the circuit court had already granted State Farm’s motion for summary judgment. The circuit court did not address his “alternate motion.”

The general rule in such circumstances is that the theory upon which a case is presented may not be changed upon review, and that an issue not presented to the trial court cannot be raised for the first time on appeal. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.) However, this general rule is not rigid and inflexible. Where injustice might result, this court may consider questions of law not presented below. (See, e.g., Wadlington v. Mindes (1970), 45 Ill. 2d 447, 453, 259 N.E.2d 257, appeal dismissed (1970), 400 U.S. 935, 27 L. Ed. 2d 242, 91 S. Ct. 252.) Reviewing courts have decided issues not presented to or decided by the court whose decision is being reviewed. (See Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 520, 337 N.E.2d 23, cert, denied (1976), 425 U.S. 936, 48 L. Ed. 2d 178, 96 S. Ct. 1669.) We will address Victor’s claim.

B.

Victor’s public policy argument centers upon his belief that the family exclusion clause runs contrary to the public policy he assigns to the Illinois Financial Responsibility Act (the Act). (Ill. Rev. Stat. 1979, ch. 95%, par. 7 — 100 et seq.) That public policy is allegedly the goal of ensuring that funds be available in regulated minimum amounts for payment of damages in automobile accidents.

We believe that Victor has misapprehended the nature of the Act. Initially, we note it is well settled that Illinois has deliberately chosen not to institute a mandatory requirement that all drivers carry automobile liability insurance. (Mid-Century Insurance Exchange v. State Farm Mutual Automobile Insurance Co. (1981), 98 Ill. App. 3d 493, 495, 424 N.E.2d 686.) Nothing in the Act supports a contrary position; indeed, comments to the Act state that the type of financial responsibility law involved therein “may be contrasted to the compulsory insurance type of law adopted in the state of Massachusetts, New York, and North Carolina.” (Ill. Ann. Stat., ch. 95%, par. 7 — 201, Source Comment, at 411-12 (Smith-Hurd 1971).) Thus, it is not the public policy of Illinois to ensure the availability of resources to provide for payment of auto accident damages solely through mandatory, all-inclusive liability insurance. It is eminently obvious that the family exclusion clause cannot be held violative of this nonexistent public policy. For this reason, Victor’s reliance upon Allstate Insurance Co. v. United States Fidelity & Guaranty Co. (Utah 1980), 619 P.2d 329, and Estate of Neal v. Farmers Insurance Exchange (1977), 93 Nev. 348, 566 P.2d 81, cases involving mandatory insurance laws, is misplaced.

Additionally, we note that the provisions of the Act come into play only after an accident has occurred. Article II of the Act requires the deposit of “security” by a driver following an accident. Such “security” may consist of an insurance policy, a bond, or “such form as the Secretary of State may require.” (Ill. Rev. Stat. 1979, ch. 95M, par. 7 — 204.) Evidently, the legislature is concerned with the encouragement and promotion of the availability of several types of financial resources to compensate the injured, liability insurance being a principal but by no means exclusive means to achieve that goal. (See Ullman v. Wolverine Insurance Co. (1969), 105 Ill. App. 2d 408, 410-11, 244 N.E.2d 827, affd (1970), 48 Ill. 2d 1, 269 N.E.2d 295.) Nothing in State Farm’s decision to limit its coverage through the exclusion clause to certain circumstances violates the goal of article II, since nothing in article II indicates that insurance is the sole authorized manner in which its requirements can be met. Article III of the Act applies only where an insurance policy has been issued specifically in compliance with the directives of that article. (McCann v. Continental Casualty Co. (1956), 8 Ill. 2d 476, 483, 134 N.E.2d 302; Mollihan v. Stephany (1977), 52 Ill. App. 3d 1034, 1038-39, 368 N.E.2d 465; Mid-Century Insurance Co. v. Safeco Insurance Co. (1972), 7 Ill. App. 3d 408, 411, 287 N.E.2d 529.) There is no evidence that Victor’s policy had been certified under article III prior to the accident with the Ingles, or that Victor had otherwise come within the terms of that statutory provision. In such circumstances, it has been held that public policy is not violated. See Lewis v. Mid-Century Insurance Co. (1969), 152 Mont. 328, 449 P.2d 679.

Finally, we note the very language of Victor’s argument defeats his contention. Victor’s stated concern if this court was to uphold the validity of the exclusion clause is that he (and other drivers in the same position) would allegedly be unable to acquire a “full span of liability coverage,” could be rendered “naked of insurance coverage and thereby subjected] to suspension of driving privileges,” and could not “protect [himself] from a third party contribution judgment.” Victor looks at the impact of our decision upon himself, as the defendant. Yet, the provisions of the Act and the public policy espoused therein are concerned with the situation in which the injured party finds himself. We find nothing in ruling the family exclusion clause valid which would interfere with these actual public policy concerns of the Act.

In sum, nothing in the Act or in its underlying philosophy precludes an insurer from placing the type of exclusion clause involved here in an insurance policy. Nor is the clause vague or ambiguous. The circuit court correctly entered summary judgment for State Farm. Its decision is affirmed.

Affirmed.

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

       Victor also argued that since Estrella could not sue him directly because of the “common law doctrine of intrafamily immunity,” that doctrine also precluded his liability in contribution because he could not be liable indirectly for that which he could not be liable directly. It is apparent that this contention would be relevant to an attack upon the viability of the Ingles’ counterclaim, but is not relevant here.

       The facts "of Globe are that Globe had issued an insurance policy to a truck leasing firm, which policy contained a clause excluding coverage for bodily injury to employees of “the insured” arising in the course of employment. The trucking firm leased trucks to a lessee, and named the lessee as an additional insured in the Globe policy. An employee of the trucking firm, while servicing the leased trucks at the lessee’s location pursuant to terms of the lease, was injured. Globe refused to defend the lessee in a suit brought by the trucking firm’s employee, contending that the exclusion clause excluded coverage for such liability. The supreme court rejected this claim, holding that a severability clause in the policy required each insured to be treated as if it were insured under a separate policy. As noted, the court stated in dicta that Globe could have explicitly excluded coverage for the injuries involved had it so desired.

       Victor also cites to Mutual of Enumclaw Insurance Co. v. Wiscomb (1980), 25 Wash. App. 841, 611 P.2d 1304, aff'd (1980), 95 Wash. 2d 373, 622 P.2d 1234, and Hughes v. State Farm Mutual Automobile Insurance Co. (N.D. 1975), 236 N.W.2d 870, where it was held that the exclusion clause violates the policy of statutes similar to the Act. We note that in both cases there existed a strong public policy that an injured party recover for all injuries suffered, and that this extended even to suits between husband and wife, which were not barred by law. In contrast, no such policy exists in Illinois, as evidenced by the continued viability of interspousal tort immunity. (Ill. Rev. Stat. 1979, ch. 40, par. 1001.) Those cases are not persuasive here.

       Victor also is concerned that the clause, if valid, “arbitrarily cuts off insurance coverage for a contribution action,” thus affecting the “rights of third parties to recover damages to which they are legally entitled.” Victor has no standing to raise this matter.


author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHILLIP BYAS et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 79-2267, 79-2303 cons.
    Opinion filed February 25, 1982.

      Lawrence Wolf Levin and Steven R. Decker, both of Chicago, for appellant Phillip Byas.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Chicago, for appellant Jesse Deloach.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

Defendants Phillip Byas and Jesse Deloach were jointly tried before a jury for the murders of Randall White and James Smith. They were convicted of both murders and sentenced to concurrent 40-year prison terms.

On appeal both defendants contend (1) they were not proven guilty beyond a reasonable doubt and (2) they were denied a fair trial when the prosecutor informed the jury defendants could not receive the death penalty. Defendants further contend that if only one of their convictions is reversed then the cause should be remanded for resentencing on the remaining conviction.

We affirm.

The pertinent evidence at trial established the following. On October 3,1974, police discovered the bodies of the victims in the basement of an abandoned apartment building at 3743 West 19th Street in Chicago. One body’s hands were tied behind its back with electrical cord. The other was concealed in a large trunk. It was stipulated that if called the pathologist who performed the autopsies on the victims would testify that Randall White had received three gunshot wounds to the head; his death was caused by massive gunshot injuries to the brain. James Smith’s death resulted from a massive gunshot wound to the brain; the entry point of this wound was the middle of the forehead.

Keith Scott testified that in September 1974 he lived with Byas on the first floor of a two-story apartment building at 1140 South Independence Street in Chicago. On September 15, 1974, Scott left the apartment at about 5 p.m. Present at the time were the victims, the defendants, Shelley Edwards, and Jane Townsend. When Scott returned at 11:30 p.m. he saw Edwards, Townsend, and Smith lying on the living room floor; Byas, Deloach, and Nate Sanders were sleeping in Byas’ bedroom. Scott went to sleep in his own bedroom.

The next morning Scott was awakened between 6 and 8 a.m. by Sanders, who had two guns in his hands, pointed down at Scott. Sanders said, “I just shot Bubba White.” Scott said he thought Sanders was joking, but Sanders repeated that he had shot White. When Scott stated he did not want to become involved Sanders told him he was already involved and would have to do what Sanders asked him to do. Sanders then gave the guns to Scott, telling him to hide them. Scott placed them in a hall closet. Defendants entered the room, and Deloach stated he did not think White was dead. Defendants and Sanders then went upstairs and returned with White’s body, wrapped in a quilt. They took the body to the basement and returned to the first-floor apartment, where Sanders told Scott to clean up the blood that had leaked from the quilt. Scott and Deloach spent some time cleaning up the blood.

Afterward the men all sat in the front room. Sanders told them they should “get their alibis together” and that if anyone talked they would “get the same thing.” No one responded to this. Byas then stated that he was going to find out whether Smith or White was planning on “getting” Deloach. Minutes later Smith entered the house and Byas told him his girlfriend wanted him to return her phone call. Scott sat in his bedroom from where he could see Smith using the phone in Byas’ bedroom. Also in Byas’ bedroom were the defendants and Sanders. Deloach grabbed the phone from Smith. Byas asked Smith if he and White were planning to “get” Deloach and himself for stealing their food stamps. Smith denied any knowledge of this, but Byas said he had overheard them talking about “getting” Deloach and himself. Byas then told Smith “We just shot Bubba.” When Smith expressed disbelief Deloach and Sanders took him to the basement to show him the body. They then returned with Smith to Byas’ bedroom. Scott observed at this time that Deloach and Sanders each held a gun.

Smith kept pleading with Byas, telling him he had nothing to do with the alleged threat against Byas and Deloach. He also denied any knowledge of the food stamps being missing. Sanders told Smith that because he had seen the body nothing could be done to stop what was going to happen to him. Smith told them he would not go to the police and did not wish to die. Deloach told him to place his hands behind his back and then tied them with an extension cord. Smith again pleaded for his life and then asked for a cigarette. When they turned to get one Scott heard the sound of breaking glass. The defendants and Sanders emerged from the bedroom and Byas told Scott that Smith had jumped through the bedroom window.

Byas went out the front door and Deloach and Sanders went out through the basement. From the front porch Scott saw Byas standing on the street three houses from the apartment building. He heard someone yell “I got him.” As Scott reentered the home he heard a shot and the moaning of someone in pain. He looked out and saw Deloach and Sanders holding revolvers. Sanders’ weapon was smoking. Smith was leaning against the wall with a bullet hole in the center of his forehead. Sanders dragged Smith’s body into the basement, followed by Deloach and Byas.

At this time Deloach’s mother called. Scott answered the phone and then let Deloach out of the apartment, locking the door behind him. Byas obtained several sheets and blankets from the second floor. On Sanders’ instruction Scott cleaned up the blood and glass outside the apartment and then returned to the basement. Sanders and Byas had wrapped Smith’s body in the blanket.

Byas made a phone call and then he and Sanders told Scott to remain in the apartment while they got a trailer. They left in a 1972 Maverick belonging to Smith’s girlfriend, Shelley Edwards. About 40 minutes later they returned to the apartment. Byas made another phone call and his brother, Eddie Byas, arrived a few minutes later. The Byas brothers went out and returned with a trunk. The trunk was taken to the basement where Scott, Phillip Byas, and Sanders placed White’s body in it. Phillip Byas also placed a plastic bag ovér White’s head. Sanders secured the blankets in which Smith was wrapped by tying a knot in them. The men went upstairs where Sanders, with a gun in his hand, stated that if anyone talked they would “get the same thing.”

The two bodies were placed into a trailer attached to Shelley Edwards’ car. Scott helped carry Smith’s body to the trailer but did not help with the trunk bearing White. Phillip Byas, accompanied by Sanders, drove Edwards’ car to a building at 19th and Ridgeway. On Byas’ instruction Scott followed in his car. Eddie Byas followed behind Scott in his car. At that address Scott remained in his car but was able to see Phillip Byas and Sanders carry the trunk into the building. When Scott next saw them they pulled alongside his car, still hauling the now-empty trailer. They instructed him to wait at another location while they returned the trailer. Scott drove to that location and they rejoined him after about 40 minutes. Phillip Byas then asked Scott to follow them to a housing project at 35th and Federal. There, after Byas had wiped the door handle with a rag, they left Edwards’ car in a driveway and Scott drove them back to the apartment.

Scott admitted at trial that in late October of 1974 when questioned by homicide detectives he denied any knowledge of the murders. He was arrested on November 14, 1974, and was charged with two counts of concealing a homicidal death. At that time he told police Sanders had shot and killed the victims, but he did not mention the involvement of the defendants. The next day he gave several typed signed statements in which he claimed to have first learned of the shooting on September 17 when the defendants and Sanders told him they had killed the men. Scott at that time claimed to have been asleep when the victims were killed. He had also claimed he did not awaken till noon, at which time only the defendants, not Sanders, were present. At that time he saw the containers in which the bodies were hidden but did not know of the existence of the bodies. He had denied any knowledge of the manner in which the bodies were removed from the house. Scott also admitted that in testimony before a grand jury he had failed to mention that defendant Byas was present at the house. He also did not tell the grand jury that he (Scott) had helped to wrap the bodies.

Scott testified that he did not correct these inaccuracies until after he was granted immunity. Even then he did not agree to testify (apparently in the earlier trial of Sanders) until he had been brought before a judge three times. Scott explained at trial that he lied on the prior occasions because he feared for his own life and the lives of his family.

The State also introduced into evidence statements made by the defendants on November 15, 1974. Defendant Deloach stated that the night before the shootings he had overheard White speaking to Smith and threatening to do something to Phillip Byas. White said he knew Byas had stolen his food stamps. White and Smith said they would come down and “take care” of Byas. Deloach told Byas of this, and then the two men went to bed. The next morning Nate Sanders came over. Scott was also present. Byas came downstairs and said White was accusing one of them of stealing the food stamps and was talking about killing Byas. At Deloach’s suggestion he, Byas, and Sanders went upstairs to talk to White. Deloach asked White why he had accused him of taking his food stamps. White threatened to tear them to pieces with his shotgun and reached toward the place where he usually kept it. White was then shot, and Deloach turned to see Sanders holding a gun. Deloach did not see a shotgun in the room. The three men wrapped the body and placed it in the basement.

Not long after this, according to Deloach’s statement, Smith came back to the apartment. Byas told Smith he had a phone call. Smith, Byas, and Sanders went into the bedroom. Deloach remained in the kitchen from where he heard a crash. Someone said Smith had gone out the window. Deloach attempted to flee. Outside the house he saw Smith being dragged back into the house. He decided to return because he feared if he fled Sanders would think he was going to tell someone and would kill him. As Deloach entered the basement he heard a shot and saw Smith lying on the floor. Sanders had a gun in his hand. Deloach went upstairs and looked out the window to see if anyone had heard the shot. He then helped Byas and Sanders wrap Smith’s body. The three men drove in Smith’s girlfriend’s car to rent a trailer which they used to take the body to the building at 19th Street, where they placed it in the basement. Scott, who had followed in his car, then drove them back to the apartment after they returned the trailer and left the car at a housing project. Deloach did not contact the police because he was frightened. After the statement was prepared Deloach signed it, writing that it was “right except for the part I said I carried the bodies out.”

In his statement Phillip Byas recalled that both he and Deloach overheard Smith and White conversing the night before the shootings. Byas heard White threaten his life because White thought he had told the police about an unspecified matter. Smith and White then left, and Byas went to sleep.

The next morning Byas telephoned Nate Sanders and asked him to come over. Byas intended to confront White and find out why White intended to kill him. He wanted Sanders to be there with him when he did this. When Sanders arrived Byas told him about the threat. Sanders also suggested they talk to White, so Byas, Deloach and Sanders went upstairs. Byas stated that his intent was to persuade White to forget about his threats. Upstairs Byas asked White why he wanted to kill him. White first denied all, but when Byas told him of overhearing the threats he “got loud” and threatened to harm them with his shotgun. He jumped up and Sanders shot him. Byas did not actually see White with a shotgun at that time. Byas then went downstairs, informed Scott of the shooting, and took a trunk to the basement for use in disposing of the body. All four men wrapped White in a quilt and placed him in the trunk.

Within half an hour Smith came to the house. Byas told him of a telephone call and he went into the bedroom. Byas entered the bedroom, followed by Deloach, Scott, and Sanders. Byas told Smith he knew what Smith was planning. Smith pretended ignorance so Byas told him of White’s death. When Smith refused to believe this Byas and the others showed him the body in the basement and then returned to the bedroom. Byas began talking to Smith, who then jumped out the window. Byas ran a block outside in pursuit but could not find him. He returned to the house and found Smith dead on the floor of the basement. Deloach, Sanders and Byas wrapped the body. Sanders and Byas obtained a trailer and the four men transported both bodies to the abandoned building. Afterward they returned the trailer and abandoned the car, which belonged to Smith’s girlfriend. Keith Scott drove them back to the house. In his statement Byas maintained that he did not know Sanders was armed when he came to the house, although he had known him to carry a gun in the past.

Both defendants testified in their own defense. In summary, they contended that, contrary to what they had admittedly told the police, they did not overhear White make any threats. Sanders was not summoned to the house, he had stayed overnight. Although they accompanied Sanders to White’s room, it was Sanders who was accused by White of stealing his food stamps. They had not told Sanders of any such accusations or threats. When White suddenly moved, Sanders shot him. Then, at gunpoint, Sanders threatened them repeatedly with death if they revealed what had occurred. He ordered them, along with Scott (who was informed in the kitchen of what happened), to wrap the body and place it in the basement. Byas was instructed to get the trunk; this was not his idea as he had told the police.

When Smith came back to the house it was Sanders who grabbed him at gunpoint and told him what had happened. He was shown the body and then taken back upstairs, but his hands were not tied until after his death. When he jumped out the window Byas and Deloach ran outside, apparently considering escape. But they returned to the house when they heard a shot. In the basement they found Sanders, with a gun in his hand, standing over Smith. No one else had a gun that day. Nor was Eddie Byas ever present. On Sanders’ orders Scott, Deloach and Byas wrapped Smith’s body and placed White’s body in the trunk.

Deloach’s mother telephoned for him, and he was allowed to leave after Sanders threatened him with harm if he revealed anything. Thus, contrary to the defendants’ statements to the police, Deloach did not assist in transporting the bodies to the abandoned building. This was accomplished by Scott and Byas, acting on the orders of Sanders who still had his gun, tucked into his waistband. When the Edwards vehicle was abandoned, Byas wiped off fingerprints from it on Sanders’ orders. Sanders was let off at an intersection. Before leaving he warned Scott and Byas to “think about what happened” and told them if they tried to get away he would kill them.

Byas and Deloach both testified that the incriminating details they had given to the police were lies. Byas testified that Sanders had told him to say these things. Deloach testified that he made the statements out of fear of Sanders. Both men testified to Sanders’ reputation for violence; Deloach described him as a “known killer.”

I

We first consider defendants’ contention that their guilt was not established beyond a reasonable doubt. The State’s theory was that defendants were accountable for the actions of Nate Sanders. We have summarized at length the evidence adduced at trial. From that evidence the jury could have determined the following concerning the participation of the defendants. Defendants overheard Smith and White threatening Byas’ life because of White’s belief that Byas had stolen his food stamps. The next morning Byas summoned Sanders in order to obtain his help in confronting White. Sanders, according to the testimony of both defendants, had a reputation for violence. Deloach described him as a known killer. When Sanders arrived Deloach suggested that they all go upstairs to talk to White. There defendants confronted White with what they had heard and in the ensuing argument Sanders shot him. All three men wrapped the body in a quilt and placed it in the basement. Deloach helped Scott to remove blood stains from the floor.

When Smith returned to the house Byas told him of a phone call. Deloach grabbed the phone from him and Byas began to question him. Byas also told him “We just shot Bubba.” When Smith expressed disbelief Deloach and Sanders showed him the body. They then returned him to the bedroom; at this time both Sanders and Deloach were holding guns. As Smith pleaded for his life Deloach tied him up. When he escaped both defendants ran outside with Sanders. Smith was caught and Sanders then shot him. Both defendants helped to dispose of the two bodies.

We find that defendants’ actions before, during, and after the shootings, as established by this evidence, were sufficient to establish their accountability. As was stated in People v. Grice (1980), 87 Ill. App. 3d 718, 725, 410 N.E.2d 209, 215-16, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207,101 S. Ct. 1714:

“While mere presence at the scene of the crime is insufficient to establish legal accountability for commission of the offense, one may aid or abet without actively participating in the overt act. [Citations.] Words of agreement are not necessary to demonstrate a common purpose to perpetrate a crime, since the common design can be inferred from the circumstances surrounding the commission of the unlawful act. [Citations.] Although it is true that legal accountability for a crime is based on the defendant’s assistance before or during the commission of the criminal act, the defendant’s conduct subsequent to the offense may raise an inference of prior or concurrent participation. [Citations.]”

The evidence we have summarized was such as to permit the jury to infer from defendants’ actions that both killings were part of one common scheme which originated with the defendants when they overheard the threats made by the victims.

At trial the defendants asserted the affirmative defense of compulsion, and the jury was duly instructed on this defense. Then as now the compulsion statute provided that the defense was not applicable to “an offense punishable with death.” (Ill. Rev. Stat. 1973, ch. 38, par. 7 — 11(a).) But the trial court permitted this defense to be raised despite the fact defendants were charged with murder because the death penalty statute applicable to defendants (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1A) had been declared unconstitutional (People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353, 336 N.E.2d 1), so that defendants were not charged with offenses for which they could be punished with death. Subsequently our supreme court held that the legislature had intended by its language in the compulsion statute to preclude that defense for murder generally. (People v. Gleckler (1980), 82 Ill. 2d 145, 411 N.E.2d 849.) The State now contends that because of that decision defendants are precluded from utilizing this defense on appeal. We do not reach the due process implications of such a claim, for we find that the State met its burden of rebutting the defense with proof beyond a reasonable doubt.

The jury was not required to accept defendants’ claim that they were compelled by Sanders to perform these actions. Indeed, their own admission in their statements to the police that they had summoned him to aid them in confronting the victims tends to undermine this claim. Also of significance is the absence from these statements of most of the alleged instances of threats by Sanders that defendants related in their trial testimony. Nor do we find that the threats related by Scott were such as to raise a reasonable doubt on the issue. In those statements Sanders threatened anyone who revealed what had occurred; they do not establish the facts necessary for compulsion, that the acts committed by defendants were performed under the threat of death or great bodily harm. People v. Colone (1978), 56 Ill. App. 3d 1018, 372 N.E.2d 871.

Defendants also contend that the testimony of Keith Scott was not sufficient to establish their guilt because of the manner in which it was impeached and because as an accomplice his testimony was subject to being viewed with skepticism. (People v. Bascomb (1979), 74 Ill. App. 3d 392, 392 N.E.2d 1130.) The State contends that Scott was not an accomplice, citing our determination of that issue as it related to the trial of Keith Sanders. (People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.) But even if Scott’s testimony is viewed with the scrutiny accorded that of an accomplice we find that the great extent to which defendants’ own statements corroborated the details of Scott’s trial testimony provides a sufficient indication of reliability. The jury was aware of the extent of Scott’s involvement in the occurrences at issue, and they were given an instruction on accomplice testimony. They heard his admissions concerning having lied to the police on prior occasions concerning these matters and they were informed that he had been granted immunity in return for his testimony. But they also heard the statements made by defendants in which they corroborated many of the' details of the occurrences as related by Scott. They also heard the police testimony concerning the condition of bodies when they were found, testimony which also tended to corroborate Scott. We find no basis for overturning the determination of credibility made by the jury based on all of this evidence.

II

In final argument to the jury defense counsel, in argument concerning the credibility of Keith Scott, stated that “* * * on this man’s testimony lies the lives of two young men * * A State objection to this was sustained. Subsequently the prosecutor in his rebuttal argument stated:

“I think that there is one thing that we have to get straight and clear so that there is no confusion at the beginning. [Defense counsel] says that upon the testimony of Keith Scott the very lives of Mr. Byas and Mr. Deloach rests. Well, ladies and gentlemen, counsel knows that this is not a death penalty case 0 °

Defense counsel’s objection was sustained and the jury was instructed to disregard the remark, but a motion for mistrial was denied. Defendants now contend that this comment was so prejudicial as to require reversal.

The comment was clearly improper as it related to matters not relevant to the jury’s deliberations. (People v. Martin (1979), 74 Ill. App. 3d 567, 393 N.E.2d 508.) However, defense counsel was not without fault in having first made a statement to the jury which may well have misled them on the issue. Moreover we find that the prompt actions of the trial court in sustaining the objection and instructing the jury to disregard the remark served to cure any error. In the context of the entire final argument we do not find that defendants, who have cited no other alleged error in those remarks, were prejudiced so as to require reversal of their convictions.

The judgment of the trial court is affirmed.

Affirmed.

JIGANTI and LINN, JJ, concur.

       Sanders was separately tried and convicted of the murders at issue. His convictions were affirmed in People v. Sanders (1980), 88 Ill. App. 3d 457, 407 N.E.2d 951.


author: PRESIDING JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANKLIN T. JOHNSON, Defendant-Appellant.
    First District (4th Division)
    No. 80-59
    Opinion filed February 25, 1982.

      Ralph Ruebner and Steven Clark, both of State Appellate Defender’s Office, of Chicago (Thomas Peters, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Adrienne Noble Nacev, and Sandra M. Stavropoulos, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, defendant, Franklin T. Johnson, was found guilty of rape (Ill. Rev. Stat. 1975, ch. 38, par. 11 — 1(a)) and deviate sexual assault (Ill. Rev. Stat. 1975, ch. 38, par. 11 — 3(a)). He was sentenced to 100 to 200 years for rape and 50 to 100 years for deviate sexual assault. From that judgment and the sentences, defendant appeals.

The following issues are raised for review: (1) whether the evidence obtained as a result of defendant’s arrest should have been suppressed; (2) whether defendant was prevented from testifying because of the trial court’s alleged erroneous ruling that the State could impeach him with his prior convictions; (3) whether the trial court erred in allowing Officer Cannon to testify about a hearsay police radio report which implicated defendant in another rape; (4) whether the lineup and identification procedures used by the police were unnecessarily suggestive; (5) whether defendant was proved guilty beyond a reasonable doubt; (6) whether the prosecutor improperly influenced the grand jury by withholding evidence favorable to the accused; and (7) whether defendant’s sentence was excessive and in violation of the Illinois Criminal Code.

We affirm and modify.

The testimony at trial was as follows. The complaining witness testified that on July 6,1977, she was 15 years old and was babysitting for her neighbors. She took the child outdoors for about an hour. En route back to the apartment, they turned the corner and nearly bumped into a man. The witness-described the man as a black person, about 6 feet in height, weighing 200 pounds, and having dark close-cropped hair and a slight mustache. He wore white painter’s pants and a blue and red striped shirt with a white line running through it. He also wore sunglasses that were tinted darker at the top than at the bottom. A blue and white bandana was tied around his head and he carried an orange hand towel.

When the complaining witness and the child returned to the apartment, the child went into her bedroom and complainant went into the living room to put on some earrings. She turned around and saw a man — the same man she had nearly bumped in to on the street — whom she identified as defendant, standing in the doorway with a towel in his hand. Defendant told her not to say anything. He walked toward her and she backed away. He kept coming toward her as she backed away and asked him to “please go away.” Defendant gave her the towel and told her to go into the bedroom. He asked her about the little girl. She told him the child was in another bedroom. He went to look for her and complainant began screaming. Defendant ran through the living room into the bedroom, jumped on complainant and began choking her with his arm, ordering her to “shut up.” She stopped screaming and began to whimper. He released her; she rolled over and the towel fell from the bed. Defendant told her to put the towel around her face. He asked her when would her husband arrive; complainant told him that she was only 15 and was not married. He then asked when the child’s parents would be arriving. Complainant responded that she expected them in 15 or 20 minutes. Defendant ordered her to remove her pants and she did so. He then had oral sex and sexual intercourse with her. Thereafter, he told her to roll over and to give him the towel; she was not to look at him. He then tied her feet with a scarf and left through the back door.

The victim wiggled out of the scarf, checked the apartment, locked the back door, called her mother, and then called the police. She was taken to the hospital and examined. Later, she gave a report to a police officer.

On July 14,1977, the victim went to the Evanston Police Department to view a lineup. In the first lineup she viewed, she stated that her attacker resembled one of the men but sounded like another man. She then asked to see the lineup again. The second time, she “had to mentally put glasses on them all.” She then chose defendant as her attacker. The victim viewed a photograph of the lineup in court and indicated that defendant, the number three man in the photograph, was her attacker.

Defendant’s motion in limine to bar the State from introducing, through Officer Cannon, any data the police had in their July 14, 1977, rape report was denied.

Officer Glen Cannon testified that he is employed by the Evanston Police Department and on July 14,1977, he was on duty. A few days prior to that date, at roll call, he and other officers had received information concerning a person who was a suspect in the rape in the instant case. The composite described a heavy-set, muscular black male, approximately 5 feet 11 inches to 6 feet in height and weighing 200 pounds, who had close-cropped hair, balding on top. There was also a description of a possible red sports car or a red Volkswagen Beetle.

On July 14, 1977, a radio dispatch indicated that a rape had just occurred at an address near the address of the July 6 rape in Evanston. The description Officer Cannon heard was one of a black male, heavyset, who had close-cropped hair. Officer Cannon was driving westbound on Lake Street, in Evanston. When he stopped for a red light at Ridge and Lake, he observed a red Volkswagen coming north on Ridge Avenue. As the car passed his vision, he noticed the driver was heavy-set and had close-cropped hair. He followed the car, stopped it, and took the driver (defendant) to the Evanston Police Station.

On cross-examination, Officer Cannon stated that he had stopped one or possibly two other people driving red Volkswagens and had not filed any police reports pertaining to those stops.

Foster Taylor testified that on July 6,1977, he worked for a car dealer located behind the apartment building where the rape in the instant case occurred. On that day, he stepped outside the door to get some air and noticed a man had put some overalls by the garbage can. The man was wearing painter’s overalls and got into a red Volkswagen; he drove very fast down the alley. Taylor thought the man had put the overalls in the red Volkswagen. Taylor stated that police came over later and he told them what he had observed. On July 14, 1977, he went to the Evanston Police Department to view a lineup where he identified defendant as the man he saw driving down the alley on July 6. He described defendant as a black male in his late thirties or early forties who had a bald spot on his head. After this testimony, the State rested. Then the defense rested its case. Subsequently, the jury returned a verdict of guilty of all charges.

Defendant contends the evidence obtained as a result of his arrest should have been suppressed because the police officer lacked probable cause to make the arrest. Further, defendant asserts that Officer Cannon did not observe anything unusual about defendant or his car prior to the stop; therefore, he did not have probable cause for the arrest.

A police officer may stop and question “any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, * * * or has committed an offense” (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 14). The officer must have knowledge of sufficient facts at the time of the encounter to create a reasonable suspicion that the person in question has committed, or is about to commit, a crime. (People v. Johnson (1981), 97 Ill. App. 3d 1055, 1064, 423 N.E.2d 1206, 1213.) For a stop to be proper, there must have been specific and articulable facts which, together with inferences from those facts, reasonably justify the stop. People v. Rose (1979), 75 Ill. App. 3d 45, 50, 393 N.E.2d 698, 703.

In the instant case, the record reveals that the officer had sufficient information to warrant defendant’s investigative stop. Cannon was aware of the description of the rapist in this case. Prior to stopping defendant, Cannon had received information that a rape had just occurred. A description of the offender was also given. Based on the specific descriptions of the rapist and his car, Officer Cannon stopped defendant because defendant and the car, which he was driving, matched those descriptions. The officer’s action in stopping defendant in order to investigate further was warranted, especially since the officer would be expected to act quickly in order to maintain the status quo. People v. Johnson (1981), 97 Ill. App. 3d 1055, 1065.

The test of probable cause for an arrest without a warrant is whether a reasonable and prudent man in possession of knowledge which has come to the arresting officer would believe the person to be arrested is guilty of the crime. (People v. Henderson (1976), 36 Ill. App. 3d 355, 375, 344 N.E.2d 239, 255.) It is something less than evidence that would result in conviction and is based on factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act (36 Ill. App. 3d 355, 375). In addition, probable cause may be established on the basis of all information possessed by policemen working in concert. People v. Rose (1979), 75 Ill. App. 3d 45, 50, 393 N.E.2d 698, 703.

Officer Cannon stopped defendant, observed his general appearance and the car. These facts, coupled with the information concerning the rapist which he already had, were sufficient to create a reasonable suspicion that defendant was involved in the instant rape. We, therefore, find that the investigative stop and subsequent arrest of defendant were proper.

Defendant next contends the trial court erroneously ruled that his prior convictions for rape and robbery were admissible for impeachment purposes and thereby prevented him from testifying in his own behalf. He argues that this ruling was contrary to the holding in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, since the prejudicial effect of the admission substantially outweighed any probative value of the conviction. Relying on People v. Wright (1977), 51 Ill. App. 3d 461, 366 N.E.2d 1058, he asserts that evidence of defendant’s prior rape convictions bear only slightly, if at all, on defendant’s credibility but will indicate to the jury defendant’s disposition to commit rape.

We do not accept defendant’s argument. In Montgomery, the Illinois Supreme Court held that a defendant’s prior convictions may be admitted for impeachment purposes if the offense is punishable by imprisonment in excess of 1 year or involved dishonesty, and if the conviction or release from confinement was within 10 years, unless the judge determines that the probative value is substantially outweighed by the danger of unfair prejudice. (47 Ill. 2d 510,516.) According to Montgomery, this rule leaves room for the operation of sound judicial discretion to play upon the circumstances as they unfold in a particular case. (47 Ill. 2d 510, 517.) The record reveals a discussion of the Montgomery decision, the nature of the prior conviction, and a concern for the possible prejudicial impact of that prior conviction. In view of the foregoing, we conclude that the trial court did not abuse its discretion by admitting evidence of defendant’s prior convictions.

We also reject defendant’s argument that the trial court’s ruling prevented him from testifying in his own defense. A similar argument was rejected in People v. Ganter (1977), 56 Ill. App. 3d 316, 327, 371 N.E.2d 1072, where the court answered this contention in the following manner:

“The mere fact that the defendant decided not to risk the possibility of prejudicial impeachment does not mean that the ruling was erroneous. If so, any time a defendant unsuccessfully moves prior to trial to suppress use of a prior conviction, the defendant on appeal would be able to defeat the trial judge’s discretion, regardless of whether the ruling was legally correct, by arguing that it prevented him from testifying at trial.”

As the trial court’s ruling was proper, defendant’s decision not to testify was a question of trial strategy which may appear incorrect in hindsight. Since there was no abuse of discretion on the trial court’s part, this issue is without merit. People v. Hovanec (1979), 76 Ill. App. 3d 401, 422, 394 N.E.2d 1340, 1356.

Defendant contends the trial court erred by allowing Officer Cannon to give testimony concerning a police radio message which reported a rape. Cannon had received this information prior to his arrest of defendant.

Where testimony of other crimes has no value beyond the inference that because a man has committed other crimes he is more likely to have committed the current crime, that testimony is excluded. (People v. Lehman (1955), 5 Ill. 2d 337, 342, 125 N.E.2d 506, 509.) Nevertheless, such evidence is admissible when relevant to police investigation of the offense at issue where such investigatory procedures involved an integral part of the narrative of that arrest. People v. Davis (1981), 93 Ill. App. 3d 187, 191, 416 N.E.2d 1179, 1181-82.

In the case at bar, it was within the trial court’s discretion to admit other crimes evidence, (People v. Davis (1981), 93 Ill. App. 3d 187, 191), in order to permit the State to establish the reason for defendant’s arrest. Without the testimony concerning the rape, the “jury would have been faced with the unexplained fact that policemen suddenly appeared

• * *” and stopped defendant that day. (93 Ill. App. 3d 187, 191.) Clearly, the State was entitled to explain why defendant was stopped. Therefore, we find no error.

Defendant next contends that the lineup and identification procedures used by the police were unnecessarily suggestive. According to defendant, the procedures were suggestive because the victim was allowed to view two lineups. At the first lineup, she did not identify defendant; however, at the second lineup, defendant was chosen. Thus, the repetitious viewing, coupled with the fact that defendant was the only bald and bearded person, resulted in an unnecessarily suggestive lineup. We disagree.

The burden is on defendant to establish that within the totality of the circumstances the lineup was unnecessarily suggestive as to give rise to a substantial likelihood of irreparable mistaken identification. (Stovall v. Denno (1967), 388 U.S. 293, 301-02, 18 L. Ed. 2d 1199, 1206, 87 S. Ct. 1967, 1972; People v. Jackson (1974), 24 Ill. App. 3d 700, 704, 321 N.E.2d 420, 423.) Should defendant succeed in meeting this burden, then the in-court identification might, absent other circumstances, be held inadmissible. However, substantial differences in age and appearance between suspects and others exhibited in a lineup do not in themselves establish that a lineup was unnecessarily suggestive. Such differences affect only the credibility of the identification, not its admissibility. (People v. Jackson (1974), 24 Ill. App. 3d 700, 704.) In any event, even if the lineup is found to have been improper, the in-court identification may still be admissible provided the State established by clear and convincing evidence that the identification is based on an observation independent of and prior to the tainted lineup. People v. Jackson (1974), 24 Ill. App. 3d 700, 704.

In the present case, the identification was admissible because the differences between defendant and others in the lineup were not of the sort which affect admissibility of the identification. The fact that the complaining witness failed to state that defendant was balding affected only the credibility of her testimony. Moreover, the balding area was not visible to the victim because defendant was wearing a bandana. We believe defendant failed to meet his burden of establishing that the lineup was suggestive. As was previously stated, differences in age and appearanee between suspects do not establish that the lineup was unnecessarily suggestive. Furthermore, the State met its burden of showing an independent origin for the in-court identification. The record shows that the victim had ample opportunity to view her attacker under adequate lighting conditions. In fact, she had viewed defendant outside during daylight hours and inside during the course of the attack. Consequently, the trial court did not err by admitting this identification testimony.

Defendant contends he was not proved guilty beyond a reasonable doubt because the victim’s identification of defendant wTas not sufficiently reliable to support a finding of guilty. Additionally, Taylor’s identification was not sufficiently reliable since it was based on a momentary observation of a male Negro in a car which was moving fast.

“[W]here the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made.” (People v. Manion (1977) , 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320, cert, denied (1978) , 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.)

As we have already discussed, the victim of the instant rape viewed defendant under circumstances which would permit a positive identification to be made, and her testimony was clear and consistent regarding her identification and the circumstances of the attack.

A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses (complainant and Taylor) and we will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilty (People v. Manion (1977), 67 Ill. 2d 564, 578.) We find that the evidence fully supported the jury’s verdict.

Defendant contends the prosecutor improperly influenced the grand jury to secure an indictment against him. The prosecutor failed to disclose to the grand jury that the victim never described her assailant as bald or bearded and that she initially identified someone else as her assailant.

The facts pertinent to this contention are as follows. On July 15,1977, the Cook County grand jury met to consider the charges against defendant. The State’s witness was Officer Frank Kaminski, a youth officer for the city of Evanston. Kaminski’s testimony recounted the conversation he had with the victim on the afternoon of the rape. This testimony is the evidence upon which the grand jury based the true bill for rape and deviate sexual assault.

Defendant’s argument is foreclosed by the supreme court’s decision in People v. Creque (1978), 72 Ill. 2d 515, 382 N.E.2d 793. In Creque, the supreme court held that an indictment may be based solely on hearsay evidence (72 Ill. 2d 515, 522) and that a prosecutor is under no duty to present all the incriminating evidence he has, nor to inform the grand jurors of the existence of additional or more direct evidence. 72 Ill. 2d 515, 525.

Defendant finally contends that his sentence of 100 to 200 years for rape to be served consecutively with a prior sentence violates the sentencing provisions of the Illinois Code of Corrections, and the sentence is excessive.

Defendant’s argument is based on the sentencing provision which became effective on February 1,1978. However, defendant elected to be sentenced under the old Act (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(b)(2)). The supreme court has repeatedly held that the trial judge is normally in a better position to determine the punishment to be imposed than are the courts of review. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) We find that the length of defendant’s sentences were determined by the trial judge and we will not alter those sentences.

The more difficult question is whether defendant should serve his sentences consecutively with a prior sentence of 50-100 years. A sentence of imprisonment should be imposed when (1) such a sentence is necessary for public protection, or (2) the seriousness of the offender’s conduct would otherwise be deprecated or the ends of justice would not otherwise be served. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1(a).) We are further mindful of the Illinois constitutional directive that all penalties be determined both according to the seriousness of the offense and with the purpose of restoring the offender to useful citizenship. People v. Mick (1980), 86 Ill. App. 3d 1002, 1029, 408 N.E.2d 1079, 1086.

Pursuant to Supreme Court Rule 615(b)(4) (Ill. Rev. Stat. 1979, ch. 110A, par. 615(b)(4)), a reviewing court may reduce the punishment imposed by the trial court. We conclude that the above purposes would be better served if defendant’s prior sentence is served concurrently with the sentences imposed in this case. A sentence which has the greatest potential of restoring the offender to a useful and productive place in society, while at the same time adequately punishing the offender for his misconduct and safeguarding the public from further offenses, is the one which should be imposed. (86 Ill. App. 3d 1022, 1030.) Accordingly, we order that all sentences are to be served concurrently.

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

Affirmed as modified.

ROMITI and LINN, JJ., concur.