author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENNIE CUNNINGHAM et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 82—2914, 83—0915, 83—0944 cons.
    Opinion filed December 28, 1984.

      Steven Clark and Bruce Mosbacher, both of State Appellate Defender’s Office, of Chicago, for appellants Milam Martin and Kevin Wallace.
    Randolph Stone, of Chicago (Joshua Sachs, of counsel), for appellant Bennie Cunningham.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and David C. Kluever, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Following a joint jury trial, defendants, Bennie Cunningham, Mi-lam Martin, and Kevin Wallace, were convicted of murder, attempted murder and attempted armed robbery. After a finding by the trial court that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, Wallace and Cunningham were sentenced to extended terms of 70 years for murder as well as terms of 30 years for attempted murder and 15 years for attempted robbery, to be served concurrently; Martin was sentenced to concurrent extended terms of 70 years for murder and 35 years for attempted murder, with a 15-year sentence for attempted armed robbery, to be served consecutively to the other two sentences.

On appeal, Cunningham contends that (1) the trial court erred (a) in refusing to suppress the lineup identification which resulted from his illegal arrest, and (b) in refusing to admit the third-party confession of Vincent Yokum; (2) he was denied a fair trial because of improper prosecutorial conduct in attempting to discredit a defense witness; and (3) the imposition of an extended sentence for the murder was improper. Defendants Wallace and Martin make the same contentions, with the exception of the identification issue, and they also maintain that (1) the trial court erred in refusing to order Vincent Yokum to appear in court in order to be identified as the actual perpetrator of the crime; and (2) they were denied a fair trial as a result of improper comments made by the prosecutor during rebuttal closing argument.

It appears that a shooting occurred on March 12, 1981, when three men attempted to hold up Tina’s food and liquor store operated by the Matariyeh family. The three surviving members of the family testified that Mr. and Mrs. Matariyeh (Kahlil and Suhalia) and two employees—Hudson and Farris (the latter also called Faddis and Ferris)—had just left the store, and their sons (Nabil and Suleiman) were locking the store when three men with drawn guns announced a holdup. The three men and Kahlil then engaged in a gun battle, during which Suhalia was killed and Kahlil received serious shotgun wounds which left him with a 50% disability of the left forearm and hand; it was later determined that a bullet from Kahlil’s gun had killed Suhalia. None of the Matariyehs had seen any of the gunmen before the occurrence, but the three who survived identified defendants as the gunmen from photographs and, while Kahlil was still in the hospital, Nabil and Suleiman also identified Cunningham in a lineup, and later all three Matariyehs identified Martin in another lineup.

Suleiman also testified that when the three men drew their guns, he saw Michael Hudson—one of their employees—duck behind a car and that the men then began shooting at Kahlil and Suleiman. When Kahlil pulled out a gun and began to return the fire, the three men fled. Suleiman told the police that the man with the shotgun was six feet tall and that the other two men, who carried handguns, were approximately five feet seven inches and five feet five inches tall. He also testified that Michael Hudson had asked for and received all of his pay on the day of the robbery, even though it was not a normal payday; that Hudson never returned to work after that day; and that, while the police brought Faddis—their other employee—to one of the lineups, Faddis would not accompany him to make other photographic and lineup identifications. On cross-examination, Suleiman stated that he looked directly at the man—later identified as Cunningham—who shot at him from a distance of about eight feet.

Nabil (Suleiman’s brother) also testified that Michael Hudson hid behind the car as soon as the defendants announced the holdup. He also identified defendant Cunningham as the individual who had turned to shoot at Suleiman, and stated that Kahlil pulled his gun only after the defendants began firing. He denied telling the police on the night of the shooting that his father drew his gun as soon as the defendants announced the holdup. Although Nabil also originally estimated that the difference in height between the two shorter defendants (Cunningham and Wallace) was about three inches, he admitted that when they stood next to each other they appeared to be about the same height.

Kahlil gave additional testimony that he and Suhalia were waiting in front of his car while his sons closed the store when the three men pulled their guns, shouted “Holdup” and began shooting. Kahlil pulled out his gun to shoot at them, and in the ensuing battle he was shot in the left forearm, the left foot, and on the left side of his abdomen. He subsequently identified Cunningham as the man with a handgun who had turned to fire at Suleiman, and said that he believed Martin—the man with the shotgun—was the one who announced the holdup.

Detective Frank Laverty testified that after interviewing people in the area of the store, he began looking for three individuals known as Fruitloops, Shalom and Daddy Stone. He learned later that Shalom was Milam Martin, and Fruitloops was Kevin Wallace. After obtaining these names, he interviewed Michael Hudson, but he said that Hudson never viewed any photo spreads or lineups and that he (Laverty) did not recall Wallace having crutches when arrested on March 21.

The principal witness for the defense was Michael Hudson, who testified that he had been working at the store for five years at the time of the shooting, which he said started after Kahlil drew his gun. When the shooting began, he ducked out of the way and ran across the street, as did Nabil and Suleiman, and no one shot at Suleiman. Hudson also testified that he did not know him but had previously seen the tallest of the three gunmen hanging around on the street corner drinking wine; that Kevin Wallace, whom he had known for three or four months, was not one of the three gunman; that the police told him not to testify for Wallace; that he had never refused to talk to the State’s Attorney; and that he had not been asked to attend a lineup. Hudson also testified that he told the police on the night of the shooting that he recognized the tallest man with the shotgun; that he had seen that man inside the courtroom at one point during the trial; that he was a good friend of Wallace’s brother; and that he had seen Wallace on the street with his crutches a few days before the robbery. He further stated that Detective Laverty wanted him to cooperate with the police in solving the crime, but denied telling the police that he would not talk to them anymore and would not cooperate after the police indicated that Cunningham was involved. He stated that the actual reason for his failure to cooperate was that the police were following him, harassing him, and threatening to throw him in jail if they found out that Hudson had had anything to do with the crime. He further stated that he did not remember saying to the police that he was afraid of gang retaliation if he identified someone in this case; that after the discussion with Detective Laverty, in which the Cunningham name was mentioned, he was contacted by the attorney who represented Cunningham and Martin; that he eventually signed a statement prepared by the attorney; and that he testified that the tall person involved in the shooting was the same person he had seen earlier in the courtroom. Hudson denied telling the State’s Attorney that he could not identify anyone.

Bernard Merritt testified that he had lived in the area of the shooting for 12 years and that, although he knew Bennie Cunningham was from the neighborhood, he did not know Kevin Wallace, Milam Martin, or Vincent Love (Yokum). He testified that he was about 80 feet from the store during the shooting and that none of the defendants were involved. He did, however, state that the shortest person of the three gunmen was Floyd Murray, a “gang banger” who was also known as “Main.” He admitted knojving Bennie Cunningham by sight for approximately a year, but he did not know Bennie had been arrested for the shooting until he was contacted by Bennie’s attorney in July, 1982. He did not wait for the police to arrive at the shooting scene, nor did he go to the police with the information about Floyd Murray. He was not subpoenaed to testify, but he lived across the street from the Cunningham family, and after speaking to Cunningham’s attorney he decided to testify voluntarily in order to “see justice done.”

Detective Basile testified for the defense that he was told by Nabil and Suleiman that the shooting began after Kahlil reached for his gun, and that Michael Hudson not only answered his questions on the night of the shooting but also gave him his address and telephone number and stayed around to look at photographs.

Herman Cunningham (Bennie Cunningham’s uncle) testified that Bennie arrived at his automobile repair shop around 3:30 p.m. on the day of the robbery and that he and Bennie worked on the latter’s car until about 9:30 that evening. Neither of them left the shop during that time but sent one of his employees for food. After he closed the shop, he dropped Bennie at his mother’s house on the south side around 11 or 11:30 p.m. He admitted that although he learned of Bennie’s arrest shortly after it occurred, he did not go to the police or tell anyone else that Bennie had been working at his shop on the night of the murder. He was eventually contacted by Bennie’s attorney and asked to testify.

Willie Tipton (Kevin Wallace’s grandmother) testified that Kevin lived with her and that she had picked him up at South Shore Hospital on March 6, 1981, where he had been treated for a gunshot wound in the leg received on March 2, 1981. He left the hospital with a cast on his leg from below his knee to his toes and was given crutches to use. On March 12, he was still limping and using his crutches. The cast was taken off on March 20, the day before he was arrested, and when he left with the police he took one of the crutches with him. She never saw Kevin Wallace with either Bennie Cunningham or Milam Martin and, although all three defendants lived in the same area, she said that they never associated with each other.

Dr. Richard Egwele stated that he treated Kevin Wallace on March 2, 1981, for a comminuted gunshot fracture of the right fibula. He told him to use crutches to keep the weight off his leg and gave him a plaster posterior splint which is held in position by an Ace bandage. He also said that the fracture would definitely not have been fully healed on March 12, but that the fibula does little in the way of support, so that he could definitely have put weight on the leg at that time and could also have removed the bandage and the splint.

In rebuttal, Paula DaLeo, an assistant State’s Attorney, testified that when Kevin Wallace was arrested on March 21, 1981, he was not wearing a leg splint or using crutches and he did not indicate that he was having pain.

Thomas Gainer, an assistant State’s Attorney, testified in rebuttal that in February 1982, Michael Hudson told him that he would not identify anyone in this case and did not want to play any part therein; that he left his job at Tina’s and moved to the west side because he was afraid of the gang activity in the neighborhood; and that he knew all three defendants from the neighborhood.

Detective Laverty testified in rebuttal that on the day after the shooting, when he asked Hudson whether he knew some El Rukns named Fruitloops and Jerry Cunningham, Hudson immediately asked how he had obtained Jerry Cunningham’s name and then said that he would not cooperate in any way whatsoever. Laverty also said that this conversation with Hudson took place before any of the three defendants were in custody; that he never told Hudson not to testify in court, nor did any other Chicago police officers to the best of his knowledge; and that, when arrested, Wallace had no crutches, was not wearing a splint, and did not walk with a limp.

Opinion

We first consider Cunningham’s contention that the trial court improperly denied his motion to suppress the lineup identification which followed his arrest.

From the testimony pertinent to this issue, it appears that the arresting officers came to Cunningham’s mother’s house to execute an arrest warrant for his brother Jerry. During the search for him, while trying to open a bedroom door in the front part of the house, one of the officers heard sounds coming from the bedroom. After several attempts to open the door latch hook with a butter knife were repeatedly foiled by someone inside replacing the hook, the officer kicked down the door and found defendant inside. He gave the officers a name other than Cunningham, indicated that he was 16 years old, and said that he had no identification. He was placed under arrest and taken to a police station to obtain a positive identification. At the station, Eugene Caldwell, who had been present at the Cunningham home, told the police that the individual they had arrested was Bennie Cunningham, not Jerry Cunningham. When Bennie admitted his identity, he was arrested for murder. It is his identification in a lineup later that evening which he maintains should have been suppressed as the fruit of an illegal arrest.

Although the trial court found that the arrest of Bennie Cunningham was illegal, it also found that the evidence was purged of the illegal taint because the lineup identification followed only after the police learned the actual identity of defendant from Eugene Caldwell at the police station. Defendant argues that Caldwell’s identification cannot sufficiently purge the lineup evidence since neither the defendant nor Caldwell, who accompanied defendant to the station, would have been at the police station but for the illegal arrest.

It is well established, however, that both the Illinois and United States Supreme Courts have rejected a simple “but for” test by holding that evidence need not be suppressed as “fruit of the poisonous tree” simply because such evidence would not have come to light but for the illegal actions of the police. (Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254; Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407; People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574.) Instead, as developed in Wong Sun:

“[Ejvidence is not the fruit of the poisonous tree if it (1) is discovered by an independent source; (2) is sufficiently distant in causal connection from the illegal search and seizure so that the connection has been so attenuated so as to dissipate the taint, or (3) the evidence inevitably would have been gained without the unlawful search or arrest.” People v. Brumfield (1981), 100 Ill. App. 3d 382, 388, 426 N.E.2d 1012, 1017, citing United States ex rel. Owens v. Twomey (7th Cir. 1974), 508 F.2d 858, 865.

The State argues that admission of the lineup identification here can be supported by use of either the independent source or inevitable discovery exceptions. We agree. The independent source exception is similar to the earlier “but for” test, and applies where the illegal arrest did not produce the link between defendant and the offense (see 3 W. LaFave, Search & Seizure sec. 11.4, at 617 (1978)), and we believe this exception is applicable here since the investigation had linked defendant to the crime prior to the arrest at the Cunningham home. All three surviving family members made positive identifications from a photographic lineup, and the arrest was therefore not made in order to link Cunningham with the offense. It is also our view that the inevitable discovery exception is even more appropriate under the circumstances of this case since the presence of defendant at the police station and his identification there by Caldwell did not bring about the lineup identification made by the Matariyeh brothers that evening, but simply caused it to take place slightly earlier than it otherwise would have. This is the essence of the inevitable discovery exception (see Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501), and, at least in its application here, it is simply an extension of the independent source test. In People v. Pearson (1978), 67 Ill. App. 3d 300, 384 N.E.2d 1331, cert. denied (1980), 445 U.S. 960, 64 L. Ed. 2d 235, 100 S. Ct. 1645, the court applied the inevitable discovery exception and, in holding that testimony regarding lineup identification was properly admitted, the court distinguished cases where the unlawful arrest was purely for investigative purposes and, more precisely, for the purpose of obtaining identifications that otherwise would never have been made. In Pearson, the court pointed out that the police investigation had centered on defendant prior to the initial unlawful arrest and the identification would inevitably have been obtained. Here, we are presented with a similar factual situation, since all three members of the Matariyeh family had made a positive identification of Bennie Cunningham from a photographic lineup. He was arrested in his own home, and there are no circumstances to negate a finding that his eventual arrest and identification were inevitable.

Although we note that the use of the inevitable discovery exception has been criticized for not adequately serving the deterrent purpose of the exclusionary rule (see People v. Sampson (1980), 86 Ill. App. 3d 687, 408 N.E.2d 3), this criticism may be valid where the police use a ruse, such as a missing parking sticker in Sampson, for the basis of the initial arrest. Here, the police had a valid arrest warrant for defendant’s brother, Jerry Cunningham, who was wanted for commission of a felony.

We note, however, that the trial court applied the third exception in denying defendant’s motion to suppress the lineup identification. Relying primarily on the identification of defendant by Eugene Caldwell, a person not connected with the police, it found that the causal connection between any illegality in the arrest and the subsequent lineup was so attenuated that it dissipated the initial taint. Not only do we agree with this finding, but we are also of the belief that the arrest was legal. We think it is clear that, under the circumstances taking place prior to Caldwell’s identification of defendant at the police station, the police made a valid arrest of the person they could reasonably have believed was Jerry Cunningham. It is established that where police are authorized to make an arrest of one person and reasonably mistake another for him, the validity of the arrest is not affected by the mistake (see Hill v. California (1971), 401 U.S. 797, 28 L. Ed. 2d 484, 91 S. Ct. 1106; United States v. McEachern (4th Cir. 1982), 675 F.2d 618; Sanders v. United States (D.C. App. 1975), 339 A.2d 373; State v. Lee (Wis. App. 1980), 97 Wis. 2d 679, 294 N.W.2d 547), and the Illinois Supreme Court has also followed Hill (People v. Gwin (1971), 49 Ill. 2d 255, 274 N.E.2d 43).

In this regard, we initially note that the officers were justified in breaking into the bedroom since Illinois law provides that “[a]ll necessary and reasonable force may be used to effect an entry into any building or property or part thereof to make an authorized arrest.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 107—5(d).) The officers had an arrest warrant for Jerry Cunningham which listed the address of the Cunningham family home. They were confronted there with an unexpected situation, in that an individual in the bedroom prevented the unhooking of the door. In such a situation, the police must act upon practical considerations, and we believe it would be unreasonable to prohibit the police from determining the identity of the individual who was preventing entry into the bedroom.

Although Bennie Cunningham’s mother—Lucille Cunningham—testified at the suppression hearing that Bennie, his girlfriend, and Bennie’s two children lived in the front bedroom and also paid $100 a month rent to her, that information was not available to the police at the time of the arrest. Even in the context of a search warrant, the police are not expected to make fine distinctions as to whether a child pays rent to a parent while residing in the family home. (See 2 W. LaFave, Search & Seizure sec. 4.5, at 81 (1978).) In People v. Cain (1966), 35 Ill. 2d 184, 220 N.E.2d 195, cert. denied (1967), 385 U.S. 1042, 17 L. Ed. 2d 686, 87 S. Ct. 781, the Illinois Supreme Court held that a search warrant which specified “third floor front of the building” was not so vague that the evidence obtained had to be suppressed. The large apartment on the third floor had subsequently been divided into several rooms—two of which were in the front of the building—and the court found that the officers’ search of the two front rooms was justified. Here, the room in which the police found the defendant was a bedroom in the front part of the house—not even a separate living area. We believe that it was reasonable for the police to enter the front bedroom in their search for Jerry Cunningham. Although defendant also states that other individuals present at the Cunningham home at the time of the arrest indicated that the individual in the bedroom was not Jerry Cunningham, the police were not required to rely on such statements. People v. Carter (1971), 132 Ill. App. 2d 572, 270 N.E.2d 603, cert. denied (1972), 406 U.S. 962, 32 L. Ed. 2d 350, 92 S. Ct. 2065.

Here, the person found in the bedroom not only had no identification but gave a name other than Cunningham, and also attempted to conceal his true identity by stating that he was 16 years old and lived elsewhere in the neighborhood. Under such circumstances, the police were justified in bringing him to the station to determine his true identity. (See Hill v. California (1971), 401 U.S. 797, 28 L. Ed. 2d 484, 91 S. Ct. 1106.) There, defendant would normally have been released as soon as the police determined at the station that he was not actually Jerry Cunningham. However, when his true identity was disclosed by Caldwell, there was probable cause for his arrest because of the Matariyehs’ previous identification of him from a photographic lineup. See People v. Pendleton (1982), 104 Ill. App. 3d 1104, 433 N.E.2d 1076.

All three defendants next contend the trial court improperly barred the testimony of a defense investigator who would have testified that one Vincent Yokum told him that he (Yokum) and two other persons were the gunmen and that defendants were not involved. They argued that the testimony should have been admitted under the declarations against penal interest exception to the hearsay rule.

In People v. Craven (1973), 54 Ill. 2d 419, 299 N.E.2d 1, the Illinois Supreme Court held that the admissibility of declarations against penal interest depends upon the presence of the following four objective indicia of trustworthiness, as set forth in Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038: (1) the statement was made spontaneously or shortly after the crime to a close acquaintance; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and a declaration against interest; and (4) there was an adequate opportunity for cross-examination of the declarant.

Here, while the purported statements of Yokum were self-incriminating and against his interest, the remaining Chambers indicia of trustworthiness were not satisfied. The statements were not made either spontaneously or within a short period after the crimes or made to a close acquaintance but were made 17 months later to a defense investigator. The record also discloses no corroboration of the statement by any other evidence; to the contrary, the prosecution’s offer of proof was to the effect that, eight days prior to the statement in question, Yokum told a sheriff’s investigator and an assistant State’s Attorney that Wallace approached him in the House of Corrections where both were incarcerated and asked him to provide an alibi for Wallace by saying that he (Yokum) was responsible for the murder— which he refused to do. There was also no opportunity for cross-examination and, in this latter regard, although Yokum was unavailable for cross-examination since he chose to plead the fifth amendment, defendant argues that the State could have made him available by requesting immunity for him. A defendant, however, does not have a constitutional right to compel the State to confer immunity upon a witness who has exercised his privilege against self-incrimination. (People v. English (1964), 31 Ill. 2d 301, 201 N.E.2d 455.) Even under the most flexible analysis of these indicia, we believe the circumstances here could not be said to provide the necessary reliability for the admission of Yokum’s statement. We therefore find no error in the trial court’s ruling that the statement was inadmissible.

In connection with this issue, defendants argue that the trial court also erred in refusing to order Vincent Yokum to appear at trial for the sole purpose of enabling a defense witness—Michael Hudson— to identify Yokum as the actual perpetrator of the crime. Defendants contend that the trial court thereby denied them their rights to compulsory process and to present a defense. The right to call witnesses is not absolute, however, and it is not error for the trial court to prohibit calling a prospective witness who has indicated, as Yokum did, that he will invoke his fifth amendment privilege against self-incrimination. People v. Cvetich (1979), 73 Ill. App. 3d 580, 391 N.E.2d 1101.

Defendants next contend that the improper behavior of the prosecutor was so prejudicial as to require a new trial where Michael Hudson—the principal defense witness—was asked whether he had called the prosecutor a “white-eyed devil honky mother-f_” and did not introduce any testimony to show that the witness had actually made the statement.

The question was asked during an attempt by the prosecutor to impeach Michael Hudson and, in particular, to bring out information concerning his alleged failure to cooperate with the police. After Hudson stated on cross-examination that he had attended an interview at the State’s Attorney’s office shortly before the trial, the prosecutor asked Hudson whether he had called the prosecutor the aforementioned name at that interview, and he answered that he did not. Following an immediate objection by defense counsel, the trial court instructed the jury to disregard the question and answer, and then denied defendants’ motions for mistrial.

Generally, where defendant promptly objects to an improper question and where that objection is sustained and the jury instructed to disregard an answer, the error is cured. (People v. Miller (1983), 120 Ill. App. 3d 495, 457 N.E.2d 1373; People v. Outlaw (1979), 75 Ill. App. 3d 626, 394 N.E.2d 541.) Defendants argue, however, that the trial court’s instruction to the jury was insufficient and that a mistrial would have been the only appropriate remedy because there was no showing that Hudson had in fact made the statement, and his testimony was crucial' to the defense. The proper inquiry in this regard is whether defendants were deprived of a fair trial. People v. Pickett (1976), 35 Ill. App. 3d 909, 342 N.E.2d 766.

Here, because the record indicates that Hudson’s credibility was otherwise discredited, that question had little, if any, impact on the result. Hudson had denied, on cross-examination, that he said he was afraid of gang retaliation, but Detective Laverty, in rebuttal, said that he had refused to cooperate with the police after learning that the Cunningham name had come up in the investigation. Thomas Gainer, an assistant State’s Attorney, also testified in rebuttal that Michael Hudson said that he would not identify anyone or play any part in the case because he was afraid of gang activity in the neighborhood. We believe, in the light of this evidence of lack of cooperation, that defendants were not deprived of a fair trial by the improper question which was immediately cured by action of the trial court.

Defendants next contend that they were denied a fair trial as a result of improper comments made by the prosecutor in rebuttal closing argument. Initially, we note the standard on review is that improper comments during closing argument do not warrant reversal unless the argument as a whole was so seriously prejudicial that it deprived the defendants of a fair trial. People v. Reese (1984), 121 Ill. App. 3d 977, 460 N.E.2d 446.

Defendants first argue that the prosecutor improperly referred to the victim’s family when he stated, “I implore you to bring justice to Nabil and Suleiman, bring justice to the memory of their mother.” While a closing argument dwelling upon the victim’s family is generally improper (People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436), it does not warrant reversal here, where the family is necessarily involved in the facts of the case or where the individuals are witness to the incident (see People v. Lee (1980), 86 Ill. App. 3d 922, 408 N.E.2d 335, rev’d on other grounds (1981), 87 Ill. 2d 182, 429 N.E.2d 461), and the trial court sustained an objection to the comment and instructed the jury to disregard it.

Defendants also argue that the prosecutor improperly insinuated in rebuttal closing argument that Hudson’s testimony was not credible because he was intimidated by gangs. It is well established that although a prosecutor is permitted wide latitude in his closing argument (People v. Clay (1984), 124 Ill. App. 3d 140, 463 N.E.2d 929), his comments therein must be based upon evidence or the reasonable inferences drawn therefrom (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746); however, defense counsel cannot invite or provoke a response and then claim that defendant was prejudiced thereby (People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801).

Here, counsel for defendants Cunningham and Martin argued that Hudson was not cooperating with the defense “because of some Stones, some El Rukns, some Disciples.” He also argued that the State was unable to prove any of the allegations about gang activity because it did not exist. Counsel for defendant Wallace argued during closing that the State presented no evidence connecting witness Merritt with a gang. In its rebuttal argument, the State countered the defense arguments by stating:

“[ASSISTANT STATE’S ATTORNEY]: Now, whatever Michael Hudson’s motives are, I can’t tell you because he couldn’t tell you, either, but there is a thing called intimidation.
DEFENSE COUNSEL: Objection, your Honor.
THE COURT: Overruled.
ASSISTANT STATE’S ATTORNEY: And there is no question that Michael Hudson said to Mr. Gainer, the State’s Attorney, and Detective Laverty that he was afraid, afraid of gangs, afraid of coming forward.
In fact, at one point when the Cunningham name, no other name in this case, when the Cunningham name was brought to the attention of Mr. Hudson at the police station, he said I will not get involved.
Some of you people must know what I am talking about because it’s a fact of life, and Mr. Edwards is right, I can’t tell you in this courtroom that these people are gang members, I can’t, but you people weren’t born yesterday, two and two equals four.
Daddy Stone means something, Shalom means something and Cunningham meant something to Michael Hudson, and it’s up for you to put two and two together and come up with four, and if you can’t, pat them on the back and send them home, send them back to the streets.”

It is our view that not only were these comments in response to the closing arguments of both defense counsel, but they were also proper inferences from the evidence presented. Detective Gainer testified that Hudson told him his refusal to cooperate was because of his fear of gang activity in the neighborhood and that Hudson further stated that, as a result of his fear of the gangs, he had moved to the west side shortly after the shooting. Detective Laverty testified that Hudson refused to cooperate with the police as soon, as the detective mentioned the names Fruitloops and Jerry Cunningham, and that Hudson told him he would hide from the police so that they would not be able to contact him concerning the case.

Finally, all three defendants contend that the trial court abused its discretion in sentencing them to extended terms of 70 years for the murder of Suhalia Matariyeh. The extended term sentencing statute provides:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5—8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5—5—3.2 were found to be present.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—2(a).)

The aggravating factor found by the trial court here was that “the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1981, ch. 38, par. 1005—5— 3.2(b)(2).

Here, defendants were convicted of murder as a result of a death which occurred during the commission of a felony. (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(3).) The victim was killed during a gun battle between armed defendants, who had announced a robbery with drawn guns—one of which was a sawed-off shotgun—and the victim’s husband, who was resisting the robbery. Although she was shot by a bullet from Kahlil’s gun during the shooting, Kahlil received shotgun wounds to his left arm and hand, resulting in a 50% disability of the arm, and since no other person received any wounds, we believe the trial court justifiably could have found—as it apparently did—from the evidence that the shotgun was fired before Kahlil drew his gun, and that his misdirected shot was the result of his being wounded. We cannot say, considering the totality of the circumstances here, that the actions of defendants did not constitute exceptionally brutal or heinous behavior indicative of wanton cruelty. We therefore affirm the extended term sentences for murder.

For the reasons stated, the convictions of and the sentences given all defendants are affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
    INTERLAKE STEEL, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (John Anderson, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—0500WC
    Opinion filed January 16, 1985.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Robert E. Maciorowski, of counsel), for appellant.
    Kleiman and Whitney, of Chicago (Kenneth B. Wolfe, Jr., of counsel), for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

John Anderson filed an application for adjustment of his claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for injuries suffered while he was employed by Interlake Steel, Inc. (Interlake). An arbitrator awarded Mr. Anderson benefits for permanent partial disability and medical expenses. The Industrial Commission affirmed the award of the arbitrator, and the circuit court of Cook County confirmed the decision of the Industrial Commission.

On appeal Interlake raises two issues: (1) whether the decision of the Industrial Commission that Mr. Anderson sustained an injury arising out of and in the course of his employment by Interlake was against the manifest weight of the evidence; and (2) whether the Industrial Commission committed a breach of its statutory duty under section 19(e) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(e)) to review the decision of the arbitrator.

Mr. Anderson’s original application for adjustment of claim alleged that Mr. Anderson sustained injuries on or about October 15, 1979. A subsequent amended application for adjustment of claim alleges that Mr. Anderson’s injury occurred on October 22, 1979.

Mr. Anderson testified before the arbitrator. He stated that he worked as a pipefitter for Interlake and that, during October 1979, his work involved installing butterfly valves which weighed between 150 and 200 pounds. Mr. Anderson related that on October 1, 8, 15 and 22, 1979, he installed butterfly valves with a co-worker. Mr. Anderson described in detail the method used to install the butterfly valves and indicated that the installation which occurred on October 1, 1979, was different from the other installations because it was necessary for him to work in a cramped position, which caused him to get a cramp in his left leg. He stated that he did not report this incident to his foreman. Mr. Anderson testified that he continued to work but felt the pain in his leg becoming progressively worse and, after installing a butterfly valve on October 22, 1979, felt the pain extend up into the lower part of his back.

Mr. Anderson testified that he first went to Inter lake’s nurse on October 23, 1979, and complained about the pain in his leg and his back. He told the nurse, “I think I strained myself when I was installing these butterfly valves.” The nurse gave Mr. Anderson some pain pills and suggested that he visit the company doctor. Mr. Anderson went to see Interlake’s doctor, Dr. Charles F. Kramer, on October 25, 1979. Dr. Kramer recommended that Mr. Anderson see his family physician. A few days later, Mr. Anderson went to see a chiropractor at Achilly Chiropractic Clinic, Ltd., and was treated for a period of six weeks.

Mr. Anderson was next treated by Dr. Howard Schneider, an orthopedic surgeon, on December 7, 1979. Dr. Schneider’s initial diagnosis, as indicated by a letter he sent to Interlake’s insurance department, was that Mr. Anderson suffered from a “ruptured pulposus, lower lumbar area.” Dr. Schneider placed Mr. Anderson in the hospital for 10 days. Sometime later, on January 13, 1980, Mr. Anderson was again hospitalized for a myelogram. After reviewing Mr. Anderson’s myelogram, Dr. Schneider informed Interlake that “I do feel that [Mr. Anderson] has a ruptured lumbar disc at the L-4 level left and have recommended surgery, laminectomy with decompression of the nerve root.” Mr. Anderson testified that he subsequently went to see two other doctors concerning his back condition.

Robert Leonard Keyl, a co-worker of Mr. Anderson who had helped Mr. Anderson install butterfly valves in October 1979, testified that Mr. Anderson had complained of pain in his legs during the installation of the butterfly valves.

David A. Fisher, Mr. Anderson’s foreman, testified for Interlake. Mr. Fisher said that sometime around October 22, 1979, Mr. Anderson informed him that his leg was bothering him. According to Mr. Fisher, Mr. Anderson said he did not know what was wrong with his leg but indicated that his leg was sore. Mr. Fisher said that he referred Mr. Anderson to Interlake’s first-aid department. Mr. Fisher testified that a couple of days later Mr. Anderson again requested to see the company nurse or doctor because his leg was sore. Again, Mr. Fisher sent Mr. Anderson to the first-aid department. Mr. Fisher testified that about October 28, 1979, Mr. Anderson again requested to see the company doctor and indicated for the first time that he thought he had been injured while performing a job. Mr. Fisher further testified that Mr. Anderson returned to work at Interlake in April 1980 and has worked overtime since then.

Dr. Kramer, Inter lake’s doctor, also gave testimony before the arbitrator on behalf of Interlake. Dr. Kramer stated that Mr. Anderson had been treated for a back strain in March 1966 and was treated for lumbar myalgia in late December 1972. Dr. Kramer said that Mr. Anderson came to see him on October 23, 1979, and stated that about a month earlier he had performed a job in a cramped position and noticed pain in his left leg. Dr. Kramer said he again saw Mr. Anderson on October 25, 1979, and recommended to Mr. Anderson that he see his personal physician. Mr. Anderson next visited Interlake’s first-aid department on March 26, 1980, when he returned to work. According to Dr. Kramer, he examined Mr. Anderson at that time and found no abnormalities regarding Mr. Anderson’s back.

The arbitrator found that Mr. Anderson’s back problem for which he was treated “commenced contemporaneously with installation of the butterfly valve on October 1, 1979, and became progressively more severe as he continued to work through the month of October, 1979.” The arbitrator awarded Mr. Anderson compensation from October 22, 1979. The Industrial Commission affirmed the arbitrator’s decision in a decision which read, in part, as follows:

“DECISION AND OPINION ON REVIEW
*** The Commission has considered the entire record and Oral Arguments held before a majority of the Commission on October 20,1982.
FINDINGS OF FACT AND CONCLUSIONS OF LAW The Commission adopts the Arbitrator’s findings, for the following reasons:
The Arbitrator saw the Petitioner and the witness, heard all the evidence, and made specific findings, which the Commission hereby adopts (attached).
No evidence was presented on Review and the Commission did not see the Petitioner.
Based on the above, the Commission has no reason to change the Decision of the Arbitrator.”

Interlake first suggests that Mr. Anderson failed to prove that he suffered an injury related to his employment. Specifically, Interlake maintains that Mr. Anderson’s work activities, which included bending and climbing, posed no risk peculiar to his employment and that Mr. Anderson failed to establish that his injury was attributable to a specific time, place and cause.

Mr. Anderson urges that his testimony sufficiently showed that the installation of butterfly valves constituted a danger of injury peculiar to the work. Mr. Anderson also maintains that he adequately established a specific time, place and cause of his injury.

In order to be compensable, an injury must “arise out of” an employee’s employment; therefore, it must have its origin in some risk connected with or incident to the employment so that there is a causal connection between the employment and the injury. When an injury results from a danger to which the employee would have been equally exposed apart from the employment, that injury cannot be said to arise out of the employment. (Greene v. Industrial Com. (1981), 87 Ill. 2d 1, 4, 428 N.E.2d 476, 477.) However, Interlake’s reliance on this rule is misplaced in the context of the case at bar. Here, Mr. Anderson testified that he felt a pain in his leg while he was installing butterfly valves and described in detail the procedure for such installation. Basically, Mr. Anderson and a co-worker were required to pull out a 150- to 200-pound butterfly valve and replace it with another. It is obvious that the danger of injury inherent in this procedure is not the type to which the general public is exposed. The cases relied upon by Interlake are readily distinguishable in that they involve dangers to which the general public is exposed without regard to any employment, such as a criminal attack upon the petitioner in the employer’s parking lot (Greene v. Industrial Com. (1981), 87 Ill. 2d 1, 428 N.E.2d 476); the petitioner being injured in the employer’s parking lot by a malfunctioning automobile being operated by the petitioner’s wife (Rogers v. Industrial Com. (1980), 88 Ill. 2d 221, 414 N.E.2d 744); the petitioner closing an automobile door on his own hand in the employer’s parking lot (Jones v. Industrial Com. (1980), 78 Ill. 2d 284, 399 N.E.2d 1314); or the petitioner being injured while getting up from a chair (County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 368 N.E.2d 1292). In the instant case, the record establishes that Mr. Anderson’s injury arose out of his employment.

Interlake also urges that Mr. Anderson failed to establish a specific time, place, and cause of his injury. Basically, Interlake’s argument in this regard is directed toward discrediting Mr. Anderson’s testimony. Interlake makes much of the fact that Mr. Anderson told Interlake personnel that he “thought” he injured himself while installing butterfly valves. Mr. Anderson explained his choice of words on cross-examination. He said, “I couldn’t be definite. I didn’t come out and say T injured my back.’ I didn’t even know it was my back at the time.” We reject Interlake’s characterization of the language Mr. Anderson utilized to initially report his injury as not being specific in detail. The meaning to be afforded to Mr. Anderson’s choice of words when he reported his injury to Interlake is a matter of credibility and of the weight of the evidence. It is the peculiar province of the Industrial Commission to determine the credibility of witnesses and determine the weight to be given to the evidence. Berry v. Industrial Com. (1984), 99 Ill. 2d 401, 405, 459 N.E.2d 963, 965.

Furthermore, as Mr. Anderson points out, when a worker’s physical structure gives way under repetitive job-related stresses on the body, the injury is considered to arise out of and in the course of employment. (General Electric Co. v. Industrial Com. (1982), 89 Ill. 2d 432, 434, 433 N.E.2d 671, 672.) Mr. Anderson testified that he first noticed a pain in his leg when he installed a butterfly valve on October 1, 1979, and that the pain became progressively worse upon further installations of butterfly valves in October, the last one occurring on October 22, 1979. The arbitrator and Industrial Commission properly could have concluded that Mr. Anderson’s injury resulted from repetitive trauma caused during the installation of butterfly valves, and such a finding would not be contrary to the manifest weight of the evidence.

We reject Interlake’s final assertion that the Industrial Commission failed to comply with section 19(e) of the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(e)) in that it committed a breach of its statutory duty to review the decision of the arbitrator. Interlake argues that “[i]t appears from the language of the Decision on Review that they [the Industrial Commission] breached their duty in that they affirmed the Arbitrator’s decision on the basis that no evidence was presented on Review and that the Commission did not see the petitioner.” Thus, Interlake apparently questions the propriety of the Industrial Commission’s actions in entering its decision without hearing additional evidence or viewing petitioner. However, whether additional evidence should be heard by the Industrial Commission in a proceeding to review an award made by an arbitrator is a question within the sound discretion of the Industrial Commission. (Wirth v. Industrial Com. (1974), 57 Ill. 2d 475, 479, 312 N.E.2d 593, 595.) We conclude, further, that there is no obligation, either by statute or the decided cases, that the Industrial Commission require a petitioner to appear before it before it may arrive at its decision. We find no abuse of discretion in the instant case. Interlake’s argument that the Industrial Commission improperly reviewed the arbitrator’s decision appears to rest upon an unfounded presumption that the Industrial Commission, contrary to its specific statement that it “considered the entire record,” did not base its decision on the evidence before it. We find nothing in the record which supports Interlake’s contention in this regard. Furthermore, should Interlake be assumed to base its objection on an assertion that the Commission adopted the conclusions and decision of the arbitrator without arriving at independent conclusions or a decision of its own, the record does not warrant such an assertion. We find no error in this regard.

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

Affirmed.

WEBBER, P.J., and BARRY, LINDBERG, and McNAMARA, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    CRAIG A. NORVELL, a Minor, by William H. Norvell, his Father and Next Friend, et al., Plaintiffs-Appellants, v. FANCY CREEK TOWNSHIP, SANGAMON COUNTY, et al., Defendants and Counterplaintiffs and Counterdefendants-Appellees (Ronald M. Kreis et al., Defendants and Counterplaintiffs and Counterdefendants-Appellants).
    Fourth District
    No. 4—84—0320
    Opinion filed January 30, 1985.
    Rehearing denied March 1, 1985.
    Robert E. Gillespie, of Gillespie, Cadigan & Gillespie, of Springfield, for appellants Ronald M. Kreis, Carroll G. Kreis, and Margaret Kreis.
    Almon A. Manson, Jr., of Ensel, Jones, Blanchard & LaBarre, of Springfield, for other appellants.
    John A. Ess, of Heyl, Royster, Voelker & Allen, of Springfield, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This litigation is the aftermath of a collision between a motorcycle driven by defendant, Ronald M. Kreis (Ronald), and upon which plaintiff, Craig A. Norvell (Craig), a minor, was a passenger, and an automobile driven by Shirley Fieten, who is not a party to the litigation. The collision occurred on July 25, 1979, at the intersection of Township Road 9N and State Highway Route 29 within the boundaries of defendant, Fancy Creek Township (township), Sangamon County.

On July 24, 1981, plaintiffs Craig, by his father, William Norvell and both his parents, William and Laura Norvell, individually, brought suit in the circuit court of Sangamon County to recover for Craig’s injuries and the parents’ expenses arising from the injuries. The township, John Daniels, its road commissioner, and Ronald and his parents, Carroll G. and Margaret Kreis, were named defendants. The Kreis family counterclaimed against the township and Daniels for damages for injuries to Kreis and contribution for any liability they had to plaintiffs. The township and Daniels counterclaimed against the Kreis family seeking contribution for any liability they had to plaintiffs.

The counterclaim of the Kreis family against the township and Daniels was severed before trial by jury of the other issues. After that trial, the circuit court entered judgments on the verdicts as follows: (1) in favor of Craig and against the three Kreis defendants in the sum of $40,000; (2) in favor of defendants the township and Daniels; and (3) in favor of all defendants and against plaintiffs, William H. and Laura Norvell. Because of the verdicts returned, the jury did not return any verdicts in regard to requests for contribution. Subsequent to the entry of judgments on the verdicts, the circuit court granted the motion of defendants, the township and Daniels, to dismiss, in bar of action, the counterclaim of the Kreis defendants-counterplaintiffs for personal injuries to Ronald. The rationale of the ruling was that the judgment on the verdict in favor of the movants and against plaintiffs was a res judicata determination that the movants were not guilty of any misconduct which was a proximate cause of plaintiffs’ injuries and, thus, could not be liable for contribution.

Plaintiff Craig A. Norvell appeals the judgment on the verdict in favor of defendants, the township and Daniels. Plaintiffs William H. and Laura Norvell appeal that judgment and the judgment on the verdict in favor of the defendants Kreis. The defendants Kreis appeal the judgment dismissing their counterclaim for injuries against defendants, the township and Daniels, and the denial, inherent in the judgments on the verdicts, of their counterclaim for contribution. We affirm.

Plaintiffs contend that by analogy to the decision in Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242, they should be entitled to a judgment of liability against the defendants, the township and Daniels. In the alternative, those plaintiffs assert that they are entitled to a new trial on both liability and damages as to these defendants, because the verdict in favor of those defendants was contrary to the manifest weight of the evidence, and the trial court erred in admitting a photographic exhibit. Defendants-counterplaintiffs Kreis agree that plaintiffs should have the relief they request and maintain that if the judgment in favor of the township and Daniels and against plaintiffs is set aside, it will no longer serve as a res judicata bar to their claim for contribution.

In passing upon the sufficiency of the evidence to support the verdict in favor of the defendants, the township and Daniels, we consider the following evidence, as we must, in the light most favorable to those defendants. The collision occurred during early evening daylight hours. Fieten, the motorist, was traveling north on Route 29 at a normal speed. The motorcycle driven by Ronald Kreis, and on which Craig was a passenger, approached on the township road traveling in a westerly direction and entered the intersection without stopping. The motorcycle was struck by the automobile. A stop sign facing westbound vehicles on the township road had been placed in the usual relationship to the intersection. Defendants, the township and Daniels, had a duty to properly maintain the sign. (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242.) They had permitted bushes to grow in front of the sign to the extent that the sign was obscured at a distance of 61 feet east of the stop sign. However, some 355 feet east of the stop sign, there was a visible sign warning travelers that there was a stop ahead. Expert testimony indicated that a stopping distance for an automobile traveling 45 miles per hour would be 323 feet. At the time of the collision the ages of Craig and Ronald were 13 and 15 years, respectively.

As a vehicle approached the intersection from the east, as did the motorcycle, one could see other indications that an intersection was ahead. From 60 feet, the back of a stop sign on the west side of Route 29 was clearly visible. However, Richard Berning, an engineer who had formerly been traffic engineer, testified the grade of the township road rose as it extended easterly from Route 29 until it reached a crest about 182 feet east of the route. He further testified that one traveling west on the township road approaching the intersection could not see the intersection until reaching the crest. Daniels testified that (1) the township had 37 miles of road to maintain; (2) he had no regular inspection schedule in maintaining the roads; and (3) the intersection was one of the two most dangerous in the township. Neither Craig nor Ronald could recall the occurrence. Craig testified that he had only passed through the intersection once before, and then he was a passenger in a vehicle traveling on Route 29 three weeks before the collision. However, Ronald also testified that his sister lived south of the intersection a short distance, and that while driving in the area before the collision, he had made a wrong turn and came upon Route 29.

In Bentley, as here, a collision occurred when, without stopping, a vehicle entered a State highway from a township road and collided with a vehicle traveling on the highway. There, as here, the stop sign which warned of the existence of the highway was obscured by foliage that .the township highway commissioner had failed to cut. There, as here, suit was brought on behalf of the passenger in the vehicle traveling on the township road against the township. There, as here, the township contended that any negligence on its part could not be deemed, as a matter of law, a proximate cause of the collision. There, the supreme court held that the township was shown, as a matter of law, to have been guilty of negligence which was a proximate cause of the collision. However, the Bentley opinion pointed out that there, no sign, indicating that a stop ahead was required, existed. The opinion also mentioned that there was no other evidence to indicate that the driver of the vehicle on the township road knew of the existence of the highway. Here, there was a sign indicating a stop ahead and some evidence that the driver knew something of the area.

While here, as in Bentley, the township and its road commissioner must be held to have been negligent as a matter of law, the previously described differences between the situations in the two cases are significant in regard to the issue of proximate cause. The negligence in failing to keep the stop sign visible would, as a matter of law, have been a proximate cause of the collision unless the collision would have happened even if the stop sign had not been obscured. Because of the existence of the sign indicating that a stop was ahead, the jury could have concluded that, if Ronald did not see that sign and did not observe the other indications that he was approaching a State highway, he was so inattentive that he would not have seen the stop sign had it not been obscured. On the other hand, the jury could have determined that Ronald saw the warning sign, knew that a stop sign was ahead but was going too fast to stop and decided it was best to attempt to get across the intersection as fast as possible. Had the jury found either of the above situations to have existed, the jury could have determined properly that the failure to clear the brush from in front of the sign was not a proximate cause of the collision.

The Bentley court found the lack of a sign warning of a stop ahead and the question of whether other aspects of the intersection were apparent to the driver that approached from the township road to be significant. Here, we find the difference to be dispositive. Although a verdict in favor of the plaintiffs was fully supportable under the evidence, a verdict in favor of the township and Daniels can stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) The evidence does not have that slightly lesser weakness which would require a new trial upon the basis that the verdict as to those two defendants was contrary to the manifest weight of the evidence. Mizowek v. DeFranco (1976), 64 Ill. 2d 303, 356 N.E.2d 32.

Plaintiffs and the defendants Kreis contend that the court improperly, and over their objection, submitted to the jury a photograph of the stop ahead sign taken IV2 years after the collision. The exhibit was admitted for the sole purpose of showing the actual position of the sign. As the use of the exhibit was limited, and because it was taken at a time of year when the shrubbery was not in leaf, the jury would have been unlikely to have believed that it purported to be a picture of the stop sign as it existed at the time of collision. No reversible error resulted.

The three defendants Kreis contended that they were entitled to a directed verdict on their counterclaim for contribution against the township and Daniels. They also contend that the jury instruction as to the form of the verdict apportioning contribution was faulty. Actually, the jury returned no verdict as to that counterclaim. Because of our decision upholding the verdict in favor of the township and Daniels and against plaintiffs, the issues raised by the defendants Kreis are moot. As the township and Daniels are determined to not be liable, they are not subject to paying apportioned contribution.

Our affirmance of the judgment in favor of the township and Daniels upholds the res judicata basis of the judgment entered in favor of the township and Daniels and against Ronald Kreis on his counterclaim against those defendants-counterplaintiffs seeking damages for his injuries. Accordingly, we also affirm that judgment.

For the reasons stated, all judgments appealed are affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE SCHNAKE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL DEACON, Defendant-Appellant.
    Second District
    No. 83—421
    Opinion filed January 28, 1985.

      Thomas E. Callum, of Callum, Anderson & Deitsch, of Wheaton, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCHNAKE

delivered the opinion of the court:

Following a jury trial, the defendant, Michael Deacon, was convicted of the murder of George Christo, Jr. The defendant was subsequently sentenced to a 55-year term of imprisonment. He appeals, raising numerous contentions of error involving the pretrial, trial, and sentencing stages of the proceedings below.

The defendant was tried together with Leonard Stocki, who also was charged with Christo’s murder. At the trial the State presented one occurrence witness, Lois Chernetzki, the girlfriend of the decedent. She had previously been convicted of delivery of a controlled substance, i.e., “speed,” and delivery of cannabis.

Chernetzki testified that Christo’s nickname was “Bear.” She stated that at around 9:30 p.m. on June 11, 1982, she was with Bear and several other friends at Lujack’s Pub. They were drinking and watching a boxing match on television. At about 11 p.m. they left and went to a tavern in Bloomingdale called the Bigger Jigger where they continued to drink. Chernetzki said that the Bigger Jigger was pretty crowded with both “regular people” and with “bikers” wearing the colors of the Hell’s Henchmen motorcycle club. Colors are patches stating the club name and are generally worn on the back of a jacket.

Chernetzki, her friend Kathy Hadamik, and Bear decided to leave at about 1:15 a.m. They walked to the back of the bar, and Bear asked Chernetzki and Hadamik to wait there for him. He walked out the back door, and Chernetzki and Hadamik waited in the bar. After a few minutes they walked out the back door. Chernetzki testified that she saw Bear in the parking lot talking to Leonard Stocki, who was wearing the Henchmen colors. She went to her car, along with Hadamik, where they waited. After a few minutes, Chernetzki pulled her car up next to where Bear and Stocki were talking. Bear and Stocki then walked back into the tavern through the back door.

Chernetzki testified that she then drove her car forward about a car length so traffic could get by. After about 10 minutes she saw Bear in her rear-view mirror walking toward where her car had been parked. She honked her horn, and Bear turned around and began walking toward her car. Chemetzki testified that she then heard what sounded like a bottle breaking on the passenger side of her car, toward the rear. She then heard a thump near the front and saw Bear rolling off of the front of her car.

Chernetzki testified that she backed her car up about a car length and saw several individuals, including Stocki and J. J. McClellan, standing around and kicking Bear. Finally, McClellan said that Bear had had enough and told Chernetzki to get him out of the area. Chernetzki and Hadamik then helped Bear up by placing his arms around their shoulders. Stocki left at this point.

While Chernetzki and Hadamik were walking Bear to the car, Brad Olson exited the bar, kicked him out of their arms, and continued to kick him as he lay on the ground. According to Chemetzki, at that point the defendant came out of the bar and kicked Bear one time in the back of the head. By that point Bear was no longer trying to protect himself. The defendant was wearing Henchman colors and black motorcycle boots. After the one kick the defendant walked back towards the bar.

McClellan then “somersaulted” Bear into the back seat of Chernetzki’s car, and Chemetzki drove to a home in Schaumburg, where paramedics were summoned. Bear was alive during the drive to Schaumburg but was having difficulty breathing. One of the paramedics testified that when he arrived a short time later, Christo was dead.

Officer Roy Derby of the Bloomingdale police department testified concerning an interview he had with the defendant in a jail in North Carolina approximately two weeks after the occurrence. According to Derby, the defendant told him that on the night in question he had had only one beer because he had taken some speed earlier. At some point during the night he walked outside of the bar with Jerry Bokina and saw a fight going on next to the tavern. The defendant walked over to see what was going on. A bunch of guys were standing around another guy who was lying on the ground. According to Derby, the defendant said that somebody at the scene told him that the guy on the ground “had called him Henchkids.” The defendant said he then walked over, stomped on the guy’s head, and walked away.

A written statement the defendant gave to Derby was also admitted into evidence. It was similar to the defendant’s oral statement, but added the fact that when he left the scene, other people were still punching and kicking the guy on the ground.

Officer Derby also testified about a statement made by Stocki, but the jury was instructed not to consider it against the defendant.

Dr. Robert Stein, the chief medical examiner of Cook County, who performed an autopsy on the body of the decedent, testified that death was caused by multiple injuries of blunt trauma.

The State also presented evidence about blood found on the defendant’s motorcycle boots. The boots were obtained from his property box at the Du Page County jail while he was awaiting trial. Judie Welch, a forensic scientist with the Illinois Department of Law Enforcement, testified that there was type A blood on Deacon’s boots. Both Christo and Deacon had type A blood. Stocki’s blood was type 0. Welch stated that 40% of the Caucasian population has type A blood. She also testified that certain blood found on the parking lot of the Bigger Jigger after the incident was type A. The PGM type of that blood, however, was consistent with that of Christo and inconsistent with that of the defendant.

The defense presented the testimony of two occurrence witnesses, Kathy Hadamik and Jerome Bokina. Hadamik was not available to testify in person, so her testimony from a preliminary hearing and from Olson’s trial was read by a court reporter.

Hadamik’s testimony was substantially similar to Chernetzki’s up to the point that the women picked Bear up from the parking lot. Hadamik stated that she did not think that someone kicked Bear out of their arms, but that Bear just collapsed. Then the women got one of the men at the scene to help them put Christo in Chernetzki’s car, and they left the scene.

Jerry Bokina was another member of the motorcycle club. He was at the Bigger Jigger on the night in question. He testified that at about 1:30 a.m. he walked out of the front door of the bar and heard somebody yelling. He walked around to the side of the building and saw two people arguing. Bokina testified that one of the two people, subsequently identified as Brad Olson, hit the other guy (Christo) four or five times. The force of the blows propelled Christo into a dark area near the building, and Olson followed. Christo fell to the ground, and Chernetzki’s car pulled up. The two women got out of the car and started yelling.

Bokina testified that he then went back into the bar because he did not want to get involved. He saw the defendant inside the front part of the bar and told him that there was a fight going on outside. Bokina subsequently left the Bigger Jigger, along with the defendant, Stocki and David Stone. In the meantime, Bokina never saw the defendant leave the bar, although Bokina did not spend that time with him, nor did he try to keep track of the defendant’s movements.

Following presentation of the evidence and the closing arguments, the jury was instructed. Instructions were given concerning the charged offense of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(2)), and the lesser included offenses of involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9—3), aggravated battery and battery.

During its deliberations the jury sent the judge the following question:

“If charged with murder, does that mean a defendant is automatically guilty of the three other offenses listed, including involuntary manslaughter, aggravated battery, and battery? Or is each determined independently of the others?”

Because of the ambiguity of this note, the judge sent the jury a request for clarification of the question. The jury then reworded its question as follows, “Can a defendant be found guilty of murder but not guilty of involuntary manslaughter?” After some discussion -with counsel, the judge answered this question with a simple yes.

The jury subsequently returned its verdicts in open court, and the judge immediately made the following statement:

“Ladies and gentlemen, you have signed what I consider to be legally and factually inconsistent verdicts. In your verdicts you have found Michael Deacon and Leonard Stocki to be guilty of both murder and involuntary manslaughter. It is an either/or proposition. Either the Defendants are guilty of murder or they are guilty of involuntary manslaughter. To be guilty of involuntary manslaughter, they must have acted recklessly. To be guilty of murder, they must have acted intentionally or with knowledge.
These are legally and factually inconsistent verdicts, so I am going to send you back to deliberate and reconsider those two verdicts and tell me what your true verdict is, based upon the law and the evidence. Are they guilty of murder or are they guilty of involuntary manslaughter? You should go back and deliberate some more.”

After the jury had retired for further deliberations, counsel for Stocki stated that he had a question regarding whether a mistrial should be declared. The judge stated that he did not believe a mistrial would be appropriate. No other comments or objections were made by either defense counsel.

The jury subsequently returned its verdicts in open court for the second time, finding the defendant and Stocki guilty of murder, aggravated battery, and battery, and not guilty of involuntary manslaughter. Judgment was entered on these verdicts.

Following a hearing in aggravation and mitigation, the defendant was sentenced to a 55-year term of imprisonment.

The defendant’s first argument on appeal is that the trial judge erred by directing the jury to deliberate further when it returned verdicts of guilty of murder and guilty of involuntary manslaughter. He maintains that the judge should have vacated the murder conviction and entered judgment on the conviction of involuntary manslaughter on the ground that the guilty verdict of involuntary manslaughter amounted to an implied acquittal of the murder charge. Alternatively, he maintains, in effect, that a mistrial should have been declared because the guilty verdicts were inconsistent and demonstrated that the jury was confused.

In order to resolve these questions, we must first consider whether the guilty verdicts were inconsistent either legally or logically. Verdicts are legally inconsistent where they necessarily involve the conclusion that essential elements of the offenses were found both to exist and not to exist. Logical inconsistency is present where the verdicts demonstrate both acceptance and rejection of one party’s theory of the case. People v. Hoffer (1984), 122 Ill. App. 3d 13, 460 N.E.2d 824; People v. Murray (1975), 34 Ill. App. 3d 521, 340 N.E.2d 186.

The defendant herein was charged with murder under section 9— 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par, 9—1(a)(2)). The jury was instructed in accordance with that provision that in order to find the defendant guilty of that offense, it had to find (1) that the defendant, or others for whose conduct he was legally responsible, performed the acts which caused Christo’s death, and (2) that when the defendant did so, “he knew that his acts, or his acts in combination with the acts of others for whose conduct he [was] legally responsible, created a strong probability of death or great bodily harm” to Christo.

With respect to the offense of involuntary manslaughter, the jury was instructed that in order to convict, it must find (1) that the defendant, or others for whose conduct he was legally responsible, performed the acts which caused the death of Christo, and (2) that the defendant, or others for whose conduct he was legally responsible, “performed those acts recklessly,” and (3) that those acts were likely to cause death or great bodily harm. The term “recklessly” was defined to the jury as follows:

“A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.”

The jury was also instructed that a person commits involuntary manslaughter when he “unintentionally” causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm. The defendant does not contend that the instructions set forth above do not adequately state the law.

In our judgment, guilty verdicts of both murder and involuntary manslaughter under these instructions are not legally inconsistent. No element of either offense was found both to exist and not to exist. The principal difference between the offenses is in the mental state. Murder, under section 9—1(a)(2), requires knowledge that one’s acts create a strong probability of death or great bodily harm, whereas involuntary manslaughter requires only a conscious disregard of a substantial and unjustifiable risk that death will follow. These mental states, although different, are not mutually exclusive. In fact, a person who knows that his acts create a strong probability of death to another would necessarily, in performing those acts, be consciously disregarding a substantial and unjustifiable risk that death will follow. (See People v. Hoffer (1984), 122 Ill. App. 3d 13, 19, where this court concluded that “a finding of recklessness does not, in our opinion, necessarily negate a finding of knowledge ***.” But see People v. Milner (1984), 123 Ill. App. 3d 656, 463 N.E.2d 148.) The defendant focuses on that portion of the instructions on involuntary manslaughter requiring the death to have been caused “unintentionally,” and he maintains that the finding of that element was inconsistent with the finding of knowledge essential to the guilty verdict on the murder charge. The basic flow with the defendant’s position is that it equates knowledge that one’s acts create a strong probability of death with intent to cause death. In fact, the mental states are separate and distinct. Intent to cause death is one of the mental states required for murder under section 9—1(a)(1) (Ill. Rev. Stat. 1981, ch. 38, par. 9— 1(a)(1)). The lesser mental state of knowledge that one’s acts create a strong probability of death is the mental state required under the provision at issue here, section 9—1(a)(2). Intent and knowledge are defined in article 4 of the Code as two separate mental states. Intent involves a “conscious objective or purpose,” whereas knowledge connotes conscious awareness. (Ill. Rev. Stat. 1981, ch. 38, pars. 4—4 and 4—5.) A person who knows, i.e., is consciously aware, that his acts create a strong probability of death to another may not have such death as his conscious objective or purpose. (See Ill. Ann. Stat., ch. 38, par. 9—1, Committee Comments, at 18 (Smith-Hurd 1979).) He may simply not care whether the victim lives or dies. Under these circumstances, the person would be guilty of murder although the death was caused “unintentionally.” Accordingly, we find no legal inconsistency between the guilty verdicts of murder and involuntary manslaughter in this case. Compare People v. Hoffer (1984), 122 Ill. App. 3d 13, 23, where this court found an inconsistency between a finding that the death was caused “unintentionally” and a verdict of guilty of murder under section 9—1(a)(1).

Moreover, we do not perceive any logical inconsistency in the guilty verdicts under the circumstances of this case. The jury could have accepted the State’s theory of the case, that the defendant participated in the beating of Christo, knowing that his acts created a strong probability of death and could have consistently found that the death was caused unintentionally, and that the defendant consciously disregarded a substantial and unjustifiable risk that death would follow. See People v. Milner (1984), 123 Ill. App. 3d 656, 668 (Heiple, J., concurring in part, dissenting in part).

Since there was no inconsistency, either legal or logical, in the verdicts of guilty of murder and involuntary manslaughter initially returned by the jury, it cannot be maintained that the jury was confused or “impliedly acquitted” the defendant of anything. Indeed, this court has held that even where there is a legal inconsistency between guilty verdicts, there is no implied acquittal. (People v. Hoffer (1984), 122 Ill. App. 3d 13, 19.) Accordingly, although it may have been error for the trial court to refuse to accept the verdicts, and to require the jury to deliberate further, the error was in favor of the defendant. The judge should have accepted the guilty verdicts and proceeded to sentence the defendant for murder pursuant to People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273. The defendant may not complain that the trial judge erroneously instructed the jury to change one of two valid guilty verdicts to not guilty.

The defendant also argues that when the judge directed the jury to redeliberate, he improperly told the jury to decide whether the defendants were guilty of murder or guilty of involuntary manslaughter, “with nothing being said about the rather basic alternative possibility” of a finding of not guilty on both charges. We note that defense counsel did not raise this objection to the judge’s oral instruction to the jury either at the time it was made, or any time prior to the jury’s returning its verdicts for the second time. Had he done so, the trial judge could easily have cured the error, if there was any. Accordingly, this objection is waived. People v. Palmer (1982), 111 Ill. App. 3d 800, 444 N.E.2d 678.

The defendant also claims error in the introduction of his boots into evidence. The boots had been seized from his property box at the Du Page County jail pursuant to a search warrant, and subsequently type A blood was discovered on them. The warrant had been issued on the basis of an affidavit of Officer Derby which stated, among other things, that during his interview with the defendant at a jail in North Carolina about two weeks after the incident, the defendant told him that the boots he was then wearing were the same ones he had worn on the night in question. Prior to trial, the defendant moved to suppress the boots as evidence on the basis that he had never made such a statement, and that the portion of Derby’s affidavit to the contrary was false. See Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

The trial court denied the defendant’s motion without an evidentiary hearing on the ground that, because the boots were in the defendant’s property box at the jail, no warrant was required to retrieve and examine them.

On appeal, the defendant contends that the trial court’s decision that no warrant was required was incorrect. We disagree. In United States v. Edwards (1974), 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234, the defendant was arrested and charged with attempting to break into a post office. He was taken to the local jail and placed in a cell. Contemporaneously or shortly thereafter, investigation at the scene revealed that the attempted entry had been made through a wooden window which had been pried up with a pry bar, leaving paint chips on the window sill and screen. The next morning the defendant was given a change of clothes, and the clothing he had been wearing at the time of his arrest was examined and found to contain paint chips matching those on the window. The defendant sought to suppress his clothing on the basis that it was searched without a warrant. The trial court refused to suppress the clothes, and the United States Supreme Court agreed, concluding that no warrant was necessary. The court stated:

“It must be remembered that on both May 31 and June 1 the police had lawful custody of Edwards and necessarily of the clothing he wore. When it became apparent that the articles of clothing were evidence of the crime for which Edwards was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered. [Citations.]” 415 U.S. 800, 806, 39 L. Ed. 2d 771, 777, 94 S. Ct. 1234, 1238.

In the instant case, the same considerations apply. The defendant does not dispute the lawfulness of the custody the police had of him or his clothing, and, therefore, when it became apparent that the boots were evidence, the police required no warrant to retrieve them and examine them for bloodstains.

The defendant seeks to distinguish Edwards by noting that in that case, when the clothes were seized, “the normal process incident to arrest and custody had not been completed,” i.e., Edwards’ clothing had not already been taken and put in a property box. We find this distinction to be without legal significance. Edwards itself includes dictum to the. effect that the result would have been the same if the clothing had been seized upon the defendant’s arrival and held in the property room of the jail. (415 U.S. 800, 807, 39 L. Ed. 2d 771, 778, 94 S. Ct. 1234, 1239.) Other courts have approved of warrantless “second looks” at items placed in a prisoner’s property box. See, e.g., People v. Richards (1983), 94 Ill. 2d 92, 445 N.E.2d 319 (necklace removed from defendant’s property envelope and shown to victim of burglary), and State v. Gordon (Mo. App. 1975), 527 S.W.2d 6 (defendant’s pants removed from property room and tested for the presence of soil found at scene of homicide).

The defendant seeks to avoid the rule of Edwards by citing the later decision of United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476, in which the United States Supreme Court held that police did require a warrant to search a locked footlocker lawfully seized from the defendants at the time of their arrest. Chadwick, however, is distinguishable because it involved a locked footlocker rather than the defendant’s clothing. In fact, the court in Chadwick distinguished Edwards on that basis. (433 U.S. 1, 16 n.10, 53 L. Ed. 2d 538, 551 n.10, 97 S. Ct. 2476, 2486 n.10.) The defendant’s contention that the police needed a search warrant to retrieve and examine his boots is not well taken.

The next contention by the defendant is that the evidence of his membership in the Hell’s Henchmen motorcycle club denied him a fair trial. Prior to trial the defendant made a motion in limine to exclude evidence of his membership. The court denied the motion with respect to the observations of the occurrence witnesses concerning the wearing of “colors,” but allowed it insofar as it applied to Hell’s Henchmen paraphernalia seized from the defendant’s residence. We find no error in this ruling.

Evidence of gang affiliation is admissible if relevant to the issues in the case. (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658, and People v. Miller (1981), 101 Ill. App. 3d 1029, 428 N.E.2d 1038.) In the instant case, there was evidence that Christo was beaten in retaliation for calling the Hell’s Henchmen “Henchkids.” Accordingly, the defendant’s membership in that organization was relevant on the question of his accountability for the acts of others, and of his motive. People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840.

The defendant objects particularly to questions the State asked police officers about a tattoo the defendant had, presumably related to the Hell’s Henchmen motorcycle club. When the questions were asked, defense counsel promptly objected, the court sustained the objection, and the jury was never informed of the nature of the tattoo. We have carefully reviewed the record in this case and do not find that the references to Hell’s Henchmen unfairly prejudiced the defendant.

The next contention raised by the defendant concerns the testimony of Judie Welch about the tests she performed on the blood found on the defendant’s boots. As noted above, Welch testified that the blood found on the defendant’s boots was type A, and that both Christo and the defendant, along with 40% of the Caucasian population, had that blood type. Stocki’s blood was type O. The defendant maintains that this testimony should have been stricken because it had very limited probative value in that the blood could have come from 40% of the Caucasian population, and because the manner in which Welch gave that testimony was confusing. No authority is cited in support of these contentions. In People v. Gillespie (1974), 24 Ill. App. 3d 567, 321 N.E.2d 398, blood type evidence of the nature involved herein was held to be relevant and admissible notwithstanding its limited probative value. (See also People v. Bush (1981), 103 Ill. App. 3d 5, 430 N.E.2d 514.) Furthermore, we do not believe that the manner in which Welch gave this testimony was confusing. She testified on cross-examination as follows:

“Q. And you said that the blood that you found there [on the defendant’s boots] was consistent or would be consistent with both blood from George Christo and from Michael Deacon; is that correct?
A. That’s correct.
Q. It would also be consistent with 40 out of every 100 Caucasians in the United States.
A. That’s correct.”

Welch’s testimony was clear, straightforward, and easily understood.

The defendant also maintains that Welch should not have been allowed during her testimony to show the jury a plate of the type she customarily used in the laboratory to determine the PGM type of blood. The document was not tendered in discovery, and the defendant objected on that basis. In response to this objection the State indicated that it was not attempting to prove the accuracy of the test results shown on that particular plate, but wanted to show the plate to the jury to help Welch explain the process of PGM testing. The court admonished the jury as to the limited purpose of the evidence, and the defendant made no further objection, nor did he seek a short continuance to investigate the item further. Under these circumstances, the issue has been waived. People v. Dahl (1982), 110 Ill. App. 3d 295, 442 N.E.2d 321.

Finally, with respect to the evidence of blood type, the defendant maintains that his conviction should be reversed because the prosecutor, during closing argument, twice misstated the evidence when she told the jury that the blood found on the defendant’s boots was consistent with that of Christo, but inconsistent with that of both Stocki and the defendant. On each occasion defense counsel objected, and the judge informed the jury that statements by the attorneys were not evidence, and that the jurors should use their own memories as to what the evidence was. It has been held that such an admonishment is adequate, at least where the defendant, as in the instant case, does not seek a more specific ruling. (People v. Mack (1984), 105 Ill. 2d 103.) The erroneous argument of the prosecutor did not, therefore, give rise to reversible error.

The defendant’s next argument is that Officer Derby was improperly allowed to testify about that portion of the defendant’s statement to him to the effect that the defendant had taken speed on the night of the occurrence. The defendant characterizes this testimony as improper evidence of a separate crime. (See generally People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288.) At the time this evidence was introduced, however, the defendant made no objection. Accordingly, this issue has been waived. (People v. Sebag (1982), 110 Ill. App. 3d 821, 824, 443 N.E.2d 25.) The defendant seeks to avoid this result by citing People v. Oden (1960), 20 Ill. 2d 470, 170 N.E.2d 582, a case in which our supreme court relaxed the waiver rule and reversed the defendants’ murder convictions and death sentences because their statements to police, admitted into evidence without objection, referred to other crimes. Oden, however, is readily distinguishable from the instant case. In Oden the other crimes were similar to the one for which the defendants were on trial. They were charged with a murder committed during the course of an armed robbery. The post-arrest statements of the defendants referred to other robberies and “stickups.” Generally, the more similar other crimes are to the offense for which the defendant is being tried, the greater is the danger of prejudice. (Cf. People v. Ellison (1984), 123 Ill. App. 3d 615, 631, 463 N.E.2d 175.) In the instant case, the other offense, possession of a controlled substance, was not at all like the offense for which the defendant was on trial, murder. Moreover, in Oden the prosecutor argued to the jury that one of the defendants had thrown his opportunities away on a career of crime. The defendant can point to no similar comment in the instant case. Finally, in Oden it was maintained that the failure to object was the result of incompetence of counsel, and no such claim is made in the instant case. We do not believe that Oden supports relaxation of the waiver rule in the instant case.

The defendant’s next argument concerns the exclusion from evidence of certain photographs taken of the crime scene at night and tendered by the defense, and the admission on the State’s behalf of other photographs of the area taken during the daytime. The fatal beating of Christo occurred about 1:30 a.m. on June 12, 1982. At trial, the defense tendered two photographs of the crime scene which had been taken at night. These pictures each showed an individual standing near the tavern, but because of the darkness of the photographs, neither his facial characteristics nor the type of clothing he was wearing could be observed. The photographs were tendered by the defense in order to impeach Chernetzki’s account of what she observed on the night in question.

The defense attempted to lay a foundation for these photographs on cross-examination of Chernetzki. When she was asked whether the first of the two photographs she was shown portrayed the scene as it appeared on the night in question, she replied that she could not say for sure. Chernetzki testified that the second photograph appeared to be darker than the scene appeared that night.

The defense then called the photographer who took the pictures. He testified that he took them in November of 1982 around 1 a.m., but he was not asked whether they accurately depicted the scene as he observed it at that time.

In order for a photograph to be admissible in evidence, it must be identified by a witness as a portrayal of certain relevant facts, and be verified by such witness on personal knowledge as a correct representation of such facts. (People v. Donaldson (1962), 24 Ill. 2d 315, 181 N.E.2d 131.) Here, the photographs were offered to show the lighting conditions at the scene of the offense, yet no witness verified that they accurately showed such conditions. Accordingly, they were properly excluded from evidence. See People v. Williams (1979), 71 Ill. App. 3d 547, 390 N.E.2d 32.

Furthermore, we find no error in the admission on the State’s behalf of photographs of the area taken during the daytime. These pictures were not introduced to show the lighting conditions on the night of the offense, and so there was no danger that they would confuse the jury in that respect. See Warner v. City of Chicaqo (1978), 72 Ill. 2d 100, 378 N.E.2d 502.

The defendant’s final contention with respect to his conviction of murder is that the cumulative effect of all the errors deprived him of a fair trial. In this regard he refers to the assignments of error discussed above, and to seven additional claims of error. Of the seven additional claims, only two are supported by authorities and argument, and they will be considered below. The remaining five are presented without citation of any authority, and with an argument which is little more than a bare assertion of the issue sought to be raised. We will not consider points raised in that fashion. People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.

The first of the two additional claims of error which have been supported with authorities and argument is that.the court erred in refusing to disclose to the defense prior to trial a file kept by the Illinois Department of Law Enforcement (IDLE) on the defendant and other members of the Hell’s Henchmen motorcycle club, as well as a document entitled Criminal Intelligence Bulletin No. 15, which mentioned Christo’s friends and close associates. This issue has been waived for purposes of appeal. The trial court reviewed these materials in camera prior to denying the request for disclosure. When the request was denied, the State moved that the documents be returned to the IDLE. That motion was granted without an objection by the defense to the effect that they should be made a part of the record. The defendant has not sought to supplement the record on appeal with the relevant materials. Under these circumstances, the issue cannot be addressed. People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334.

The second additional claim of error supported with an appropriate discussion is that the trial court erred when it allowed Chernetzki to testify, on direct examination by the prosecutor, not only to the fact of her prior convictions for delivery of a controlled substance and cannabis which the defendant accepts as admissible, but also to the fact that she pleaded guilty and was sentenced to a 21/2-year term of probation which she successfully completed. No objection to the latter testimony was presented when it was elicited, and the question of its propriety is, therefore, waived. People v. Sebag (1982), 110 Ill. App. 3d 821, 443 N.E.2d 25.

We have carefully considered all of the assignments of error addressed above and do not believe that individually or collectively they call into question the fairness of the defendant’s trial.

The final argument raised by the defendant concerns his 55-year sentence of imprisonment. That sentence was for an extended term under section 5—8—2(a)(1) of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—2(a)(1).) The extended term was imposed on the basis of the trial court’s finding that the defendant’s offense was “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1981, ch. 38, par. 1005— 5—3.2(b)(2).

The defendant contends that that finding was erroneous, and that, in light of all of the attendant circumstances, the sentence was excessive.

The evidence at trial showed that the defendant came upon the scene after Christo had already been severely beaten. In fact, according to Chernetzki, Christo was no longer even trying to protect himself. It is difficult to conceive of a more brutal and heinous act, more indicative of wanton cruelty, than to approach such a person, rendered helpless by a previous beating, and to stomp upon his head while wearing motorcycle boots. It is appropriate to consider in this regard also that the motivation for the defendant’s conduct was that he had been informed that the man lying on the ground had referred to the mémbers of the defendant’s club as “Henchkids” rather than “Henchmen.” We find no error in the trial court’s finding that extended-term sentencing was appropriate in this case. See People v. Nester (1984), 123 Ill. App. 3d 501, 462 N.E.2d 1011 (finding of exceptionally brutal or heinous behavior indicative of wanton cruelty upheld in case of cold-blooded attack upon a person already beaten in a fight).

Furthermore, we find no error in the specific sentence selected within the extended-term range of penalties. The trial court is, of course, normally the proper forum in which a suitable sentence is to be determined, and its decision should not be reversed in the absence of an abuse of discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) We have carefully considered all the evidence in aggravation and mitigation, including the defendant’s previous convictions of forgery, aggravated assault, leaving the scene of an accident, and other misdemeanor and traffic offenses, and we conclude that the 55-year sentence of imprisonment was not an abuse of discretion. Accordingly; the judgment of the circuit court of DuPage County is affirmed.

Affirmed.

REINHARD and HOPF, JJ., concur.