author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRAD LIEBERMAN, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2690
    Opinion filed June 29, 1982.

      Mary Robinson and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Brad Lieberman, was found guilty by a jury of the offense of rape and was sentenced to an extended term of 50 years imprisonment. Defendant raises as issues on appeal whether: he was denied due process by the State’s inquiry into and comment upon his post-arrest failure to disclose his alibi; he was denied a fair trial by certain evidentiary rulings of the trial court; the trial court’s response to an emotional outburst by a prosecution witness was prejudicial; the substitution of an alternate juror for a juror on the final day of trial was error; the State’s closing argument denied him a fair trial; he was proved guilty of rape beyond a reasonable doubt; and the 50-year extended term imposed upon him was proper.

The victim testified to the following facts. On December 17,1979, at about 11:30 a.m., as she was checking her lobby mailbox, a man, 6'2" tall, 210 pounds, light brown hair and wearing a maroon windbreaker with the name “Wilson” written across the chest, blue jeans and a blue T-shirt, approached her. She identified him as defendant. He flashed a¡ badge inside a wallet, said he was a policeman and a part-time plumber employed by her building, and told her that there was a leak in her apartment he needed to get to. They both went upstairs to her apartment where the victim told him about some of the plumbing problems she had been experiencing. While defendant toured the apartment looking for leaks she observed his face. Defendant went into her bedroom, looked in the closet and told her that the closet would have to be emptied so he could get to the leak. She answered the telephone and told the caller, her roommate, Maria Hemzo, that there was a plumber in the apartment and she would call back. Defendant told her that he had to find his crew and left. He returned 3 minutes later and said that they would have to empty out the closet.

As she started emptying the closet, defendant grabbed her from behind, put a knife up against her throat and told her not to struggle or he would kill her. He told her what was going to happen and not to do anything or she would be hurt. He said that he had to cut up another girl before so that she should just relax and it will be all over. He had her pull down the window shades, take off her clothes, lie on the bed, and close her eyes, occasionally threatening to kill her if she did not obey. She started crying, and said “please go, please leave.” He put his mouth to her vagina and then had intercourse with her. She opened her eyes and had a “very good” look at his face. He told her he would come back and cut her up with a knife if she were to call the police.

She was with defendant for a total of about one-half hour. Defendant did not try shielding his face from her until he got into bed. People’s exhibit No. 8 was identified as the black leather case and silver star defendant flashed to her in the lobby. She did not recall whether there was also a picture in the wallet. Right after the incident, when she spoke with the police, she could not remember whether it was a badge or shield. People’s exhibit No. 9 looked like the knife defendant wielded. She told the police after the incident that the weapon was a “long metallic pointed object” but did not use the word “knife”.

After a few minutes, she telephoned her roommate and said that she had been raped by the plumber. Later, she was examined at the St. Francis Hospital in Evanston. It was stipulated between the State and the defense that an extracted vaginal smear indicated the presence of sperm.

On January 4, 1980, she identified defendant as her assailant in á lineup. At trial there was no question in her mind that defendant was the man who raped her.

The testimony of Maria Hemzo, the victim’s roommate, concerning the substance of her interaction with the victim on the day of the incident was substantially consistent with the victim’s testimony.

Three other witnesses testified without objection about incidents involving defendant occurring on various days, September 12, 1979, November 16, 1979, and December 10, 1979. In each incident defendant: approached the witness near her residence; asked each if she lived in or owned the building; and held himself out to be a plumber. In two of the incidents, the witnesses believed defendant’s representation and allowed him to come into their apartments. Once inside, defendant told them that the bedroom closet would have to be emptied to fix the leak. As the witnesses began to remove clothes from the closet, defendant grabbed their throats from behind, told them to take off their clothes, to close their eyes, and to relax. One witness stated that defendant had a knife like People’s exhibit No. 9 in his hand. Defendant had nonconsenting intercourse with each of them. Both witnesses identified defendant as their assailant at a pretrial lineup. In the third instance, the witness told defendant that she was the owner of the building and that no plumbing work needed to be done. Defendant left. She described defendant to police as white, in his early twenties or 25, sandy brown hair, 200 pounds, about 6'2", and clean shaven.

Ernest Halvorsen, the investigating police officer, stated that the third witness described the suspect as being between 25 to 27 years, 6'1" or 6'2", 190-200 pounds, and having light brown, neatly trimmed hair. After speaking with the third witness, he and his partner stopped defendant in his car. Defendant told him that: he was living with his father in Skokie; he was in the area to visit a friend named Mike who was the manager of the Jewel on Morse; and at one time he worked as a security guard at a nearby Community Store. The officers let defendant proceed. The next day, Halvorsen received a composite photograph that resembled defendant. Thereafter, he and his partner went to the Morse Avenue Jewel, but discovered that no employee there was named “Mike.” Two weeks later, defendant was apprehended and placed into custody.

Evidence was adduced showing that a steak knife, identified as People’s exhibit No. 9, was found underneath the driver’s seat of a car registered to defendant’s father but driven on occasion by defendant. In the center console of the car, three badges and a badge holder were found: one was issued by Lutheran General Hospital, another was a patrolman’s star, and the third was a silver star in a black leather wallet.

Defendant’s mother testified that on December 17,1979, her son was at her home in Des Plaines from about 10:10 a.m. to 1:40 p.m. at which time her son went to work. On September 12, 1979, defendant arrived at her home for dinner at about 2:30 p.m. and stayed until about 6:30 p.m. People’s exhibit No. 21, a badge and identification card inside a folded wallet, looked like it belonged to her son. Neither one of the other two resembled his badges.

Defendant’s fiancee stated that on December 16, 1979, defendant spent the night at her apartment. The next morning at about 10 a.m. they left in separate cars. Defendant went to his mother’s house.

Defendant, age 20, stated that he had never been inside the victim’s apartment and that he did not rape her. Defendant did not rape or converse with the other two women who claimed he raped them. On November 16, 1979, the day of one of the alleged rapes, he was at his fiancee’s apartment and later in the afternoon he went to work at Lutheran General Hospital. When shown a time card from this hospital, he stated that he “apparently” did not work that day. He did not see or speak with the third witness on December 10,1979. The knife found in his car was used to repair speaker wires. He used the “Crosstown Security” badge found in his car when he worked at Marshall Field’s.

I

Defendant contends that the State’s cross-examination of his failure to disclose his alibi to the police after his arrest and comment on that silence during final argument constituted reversible error, relying upon Doyle v. Ohio (1976), 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245, and People v. Green (1979), 74 Ill. 2d 444, 386, N.E.2d 272. In each it was held that the constitution forbids the prosecution from using evidence of a defendant’s post-arrest silence for purposes of impeaching an exculpatory alibi offered at trial. Defendant assigns error to the following cross-examination:

“Q. [State’s Attorney]: Did you tell them that you were with your mother on the 17th, yes or no?
A. [Defendant]: No.
Q. Did you tell them you were with anybody on November the 16th when # # 6 [another named person] was raped?
A. No.
Q. Did you tell them that you were with anybody on September the 12th when * * * [still another named person] was raped?
A. No, I didn’t.”

In closing argument the State made the following comment:

“You heard Mr. Haddad [State’s Attorney] ask him [defendant] questions, did you tell the police you were with your mother on December the 17th, 1979? No. That’s where he says he was today, ladies and gentlemen. Did he tell the police when he was severely questioned, according to him? Absolutely not, absolutely not.”

The State concedes that the cross-examination and closing argument on defendant’s post-arrest silence violated Doyle, but contends that the issue was waived. It argues, in the alternative, that the error was harmless.

The issue of plain error in the context of a Doyle violation was recently addressed by the Illinois Supreme Court in People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091, which was concerned with the effect of the prosecutor’s closing argument that Lucas had failed to assert his claim of self-defense at the time of his arrest. The court there held that the plain error rule could not be invoked, since the evidence was not closely balanced.

The evidence pointing to defendant’s guilt in the present case is strong. The victim had a good opportunity to observe him up close for an extended period of time during the incident. Her claim that she had been raped was corroborated by her prompt call minutes after the incident to her roommate and by the extracted vaginal smear. Her testimony was corroborated by the discovery of a badge, wallet and knife inside defendant’s car. The description of the assailant approximated that of defendant. Defendant was identified as the assailant by the victim at a pretrial lineup and at trial. Defendant’s identity and modus operandi was substantially corroborated by the testimony of three other women who positively identified him at a pretrial lineup or at trial or both. In contrast, defendant’s credibility was undermined with respect to the incident of November 16,1979. On that date, defendant stated he was at his fiancee’s apartment in the morning, went to get a haircut, and then proceeded to work at Lutheran General Hospital, in the afternoon. When shown a time card from Lutheran General Hospital on cross-examination, defendant conceded that “apparently” he did not work that day. One must conclude from the foregoing that the State’s improper comments and examination concerning defendant’s post-arrest silence were harmless beyond a reasonable doubt (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824), and did not contribute to defendant’s conviction. People v. Better (1979), 74 Ill. 2d 514, 526, 386 N.E.2d 857.

II

Defendant next contends that the prejudicial effect created by witnesses testifying to two other rapes and one assault for which he had not been convicted, outweighed any probative value resulting from admission of that testimony. No objection to the admission of the “other crimes” evidence was made at trial by defendant nor was it identified as error in his post-trial motion. Accordingly, this argument has been waived. (People v, Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Nevertheless, this issue will be examined for the purpose of determining whether or not to apply the plain error rule to these circumstances. People v. McMillan (1970), 130 Ill. App. 2d 633, 264 N.E.2d 554. '

Evidence of other crimes is admissible to show knowledge, intent, motive, design, plan or identity (People v. Armstrong (1968), 41 Ill. 2d 390, 398, 243 N.E.2d 825), provided its probative value and need outweighs its prejudicial effect. (People-v. Triplett (1981), 99 Ill. App. 3d 1077, 425 N.E.2d 1236.) In view of the striking similarities between the three other crimes and the instant offense, and the strong eyewitness testimony that the other crimes were committed by defendant, this evidence was highly probative on the issue of modus operandi and identity. (McCormick, Evidence sec. 190 (2d ed. 1972).) Defendant claims prejudice because, with the other crimes evidence, he was no longer on trial for one rape but for others as well; however, the decision of whether to admit or exclude such testimony is within the sound discretion of the trial court. (People v. Johnson (1981), 97 Ill. App. 3d 1055, 1068,423 N.E.2d 1206.) No such abuse of discretion is evident in the present case. The State’s eyewitness testimony and corroborating physical evidence was contradicted by defendant’s alibi defense; identity and modus operandi of the assailant was therefore in question and the State clearly had a need to present evidence probative and relevant to.these issues.

III

Also under attack is the submission of the State’s Jury Instruction Number 9, Illinois Pattern Jury Instructions, Criminal, No. 3.14 (1968) (hereinafter IPI Criminal), which provided:

“Evidence has been received that the defendant has been involved in crimes other than that charged in the indictment. This evidence has been received solely on the issue of the defendant’s identification — presence—intent—motive—design—knowledge. This evidence is to be considered by you only for the limited purpose for which it was received.”

Defendant contends that the submitted instruction: (1) erroneously used the term “crimes” insofar as the defendant had not been convicted of any crime in relation to the acts described by the three prosecution witnesses, and (2) was overly broad since “presence, intent, motive, design and knowledge” were not at issue. In People v. Richards (1978), 64 Ill. App. 3d 472, 474, 381 N.E.2d 307, the court held that the use of the term “crimes” in the instruction was improper. As the dissent in that case observed, however, the use of this word did not necessarily imply that defendant was convicted of these crimes. The word “offense” would have been better suited under such circumstances, and has been so used. (See People v. Weathers (1974), 23 Ill. App. 3d 907, 320 N.E.2d 442, rev’d on other grounds (1975), 62 Ill. 2d 114.) IPI Criminal, No. 3.14 (2d ed. 1981), which became effective in 1981, is now so phrased. Further, the use of this jury instruction without modification was erroneous, since it was overly broad. (People v. Weathers.) As was held in Weathers, however, and in view of the strong evidence of defendant’s guilt as presented to the jury in the instant case, it cannot be said that articulation of the objectionable words in this instruction could have influenced the outcome of the jury’s decision, and we decline to reverse on this ground.

IV

Relying on People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223, defendant urges that he should have been allowed to impeach a prosecution witness by the use of an “Identi-kit” sketch prepared by that witness and an artist. In Rogers it was held that an authenticated composite sketch was admissible for purposes of corroborating a witness’ identification testimony where the sketch was based upon a description provided by such witness. People v. Tyllas (1981), 96 Ill. App. 3d 1, 420 N.E.2d 625, extended the Rogers holding to sketches admitted to impeach the identification testimony. (Accord, People v. Brown (1981), 100 Ill. App. 3d 57, 70, 426 N.E.2d 575.) It is evident from the record, however, that the witness in the present case could not remember what the sketch looked like. It is also unclear from the record as to whether the sketch was ever displayed to her. Assuming, arguendo, that the sketch could have been properly authenticated and should have been received in evidence, the error, if any, was harmless in view of the forceful evidence against defendant.

V

Next defendant assigns error to the trial court’s reaction to an incident alleged to have occurred while the court was in chambers. Defense counsel reported to the court that a prosecution witness started crying and was helped out of the courtroom. In defendant’s post-trial motion, defendant further alleged that this witness also uttered words to the effect that she “could not take it any more.” The trial court admonished the jury that prejudice and sympathy should have no bearing in the outcome of the trial and to arrive at a conclusion based on the evidence from the witness stand. Defendant insists that the court abused its discretion in failing to examine the courtroom personnel in chambers or poll the jurors individually. This assertion lacks merit. Any prejudice to defendant resulting from the incident was cured by the trial court’s admonition. Defendant also urges that the court erred in not excluding previous witnesses still in courtroom after the incident. Since no other “outbursts” occurred, manifestly the court’s decision in this regard did not prejudice the rights of defendant.

VI

Defendant claims next that the trial court’s dismissal of a juror without conducting a sufficient, on-record inquiry was prejudicial to him. On the morning of the last day of trial, the deputy sheriff testified that he had received a phone call from one of the jurors, who told him that she was intoxicated. The deputy stated that she sounded like she was intoxicated. At a subsequent proceeding, the trial court recalled that he spoke with the juror by telephone and detected a slurred voice on the end of the line. The first alternate juror was selected to replace her. At the hearing on defendant’s post-trial motion, defense counsel stated that the caller told the deputy sheriff that she couldn’t make up her mind and for that reason got intoxicated. Assuming, arguendo, that the juror was drinking due to her indecision in the case, the trial court did not abuse its discretion in finding her incapacitated and unable to serve as a juror. (People v. Thomas (1979), 71 Ill. App. 3d 838, 390 N.E.2d 414.) The first alternate juror had been selected during voir dire, sat through the entire trial, and was fully qualified to serve as a juror. Defendant contends that he was denied “the right to have an undecided juror involved in the deliberations” and the “right to have a juror who would have voted for a verdict of not guilty,” but does not explain how he could conclude that the juror would have voted for a verdict of not guilty after hearing the remaining evidence and deliberating with other jurors. How this juror ultimately would have voted could not have been determined by an on-the-record examination. No error is found here.

VII

Defendant maintains that he was prejudiced by certain comments made by one of the prosecutors during closing argument, as follows:

“MR. ANGAROLA [State’s Attorney]: Ladies and gentlemen, there is one thing about the case that there is no testimony on, but it may be something you are thinking about.

MR. WINN [Defense attorney]: Objection, Your Honor. I’m going to object to any remark not in evidence.

THE COURT: The objection will be sustained.

MR. ANGAROLA: Ladies and gentlemen, you saw [defendant’s fiancee] * *' * testify. She is a nice young lady, apparently pregnant. There is a question. Why would this man who is apparently enjoying a sexual relationship rape anyone. That is the sublety [sic] that is supposed to flow across to you, ladies and gentlemen.

Well, ladies and gentlemen, there is a basic misconception about what a rape is. The basic misconception is that rape is a crime of sexual gratification. It is not true, ladies and gentlemen. That is not what rape is all about.

MR. WINN: Objection, Your Honor.

THE COURT: As to what rape is the objection to the last portion is sustained.

MR. ANGAROLA: Ladies and gentlemen, rape is a crime of violence. It is a crime of violence against women. It is a method of degrading women. I am sure—

MR. WINN: Objection, Your Honor.

THE COURT: You may proceed. The objection is overruled.

MR. ANGAROLA: It is an act of degrading [sic]. That is what this man did. That is what this overgrown coward did. And I call him that, ladies and gentlemen, ° *

Defendant maintains that these comments were improper since they were made solely to inflame the passions of the jury. Generally, improper remarks do not constitute reversible error unless it can be said that an accused was substantially prejudiced by them. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) In light of the overwhelming evidence of defendant’s guilt, we cannot say that the remarks, even if deemed improper, were prejudicial.

Defendant maintains that the following remark during closing argument violated the rule that the prosecutor may not accuse defendant’s attorney of fabricating evidence:

“MR. ANGAROLA: * * * Think back about what he [defense counsel] told you about his case [during opening statements] and about what he told you he would prove. He didn’t even mention to you the defendant was going to say he was with his mother on that day. He didn’t even mention that.

Why? Because, ladies and gentlemen, that defense was made up as the case went along. He couldn’t stand up here in front of you and tell you that because he wasn’t quite sure exactly what he was going to do. He was going to lay back in the weeds so to speak. Let’s see how the State’s case goes first and then we’ll decide what’s happening.

Well, he decided in the middle of the case—

MR. WINN: I’m going to object as to what my motives are.

THE COURT: This is merely an inference. The jury understands they have a reasonable inference from the evidence and they heard the evidence. They will only consider the evidence from the witnesses in arriving at their verdict, whatever their verdict may be.

Proceed.”

This comment was clearly improper. (People v. Stock (1974), 56 Ill. 2d 461, 309 N.E.2d 19; People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.) The only question is whether it’s prejudicial error. In view of the convincing evidence of defendant’s guilt in this case, we hold that it is not, as we hold with respect to other comments of the State of which defendant complains.

VIII

The evidence adduced at trial manifestly proved defendant guilty beyond a reasonable doubt. Defendant’s argument to the contrary is entirely without merit and warrants no further discussion than has already been set forth above.

IX

The 50-year extended sentence is next challenged as improper under section 5 — 5—3.2(b)(1), (2) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(1), (2)), since he had neither a prior “conviction” as defined by statute nor was the offense accomplished by exceptionally brutal or heinous behavior indicative of wanton cruelty. At the sentencing hearing on October 14, 1980, the prosecution presented a certified copy of a half sheet from the Lake County Circuit Court indicating that on October 3, 1980, defendant was found guilty of rape, robbery and intimidation. At the time of the sentencing hearing in the instant case, the Lake County case had not yet proceeded to the sentencing phase. Since no sentence had been imposed in Lake County, defendant argues, that case could not have been deemed a “conviction” for purposes of applying the extended term, citing sections 5 — 1—5 and 5 — 1—12 of the Code. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 1—5 and 1005 — 1—12.) We are compelled to agree that at the time of sentencing, no “judgment of conviction” had yet been entered against defendant, as those terms are defined by the Code sections above cited. (See People v. Robinson (1980), 84 Ill. App. 3d 916, 920, 406 N.E.2d 153.) Accordingly, no section 5 — 5—3.2(b)(1) basis existed for imposition of an extended term of 50 years, and such sentence must be vacated and the cause remanded for resentencing. The other basis for an extended term provided for by section 5 — 5—3.2(b)(2), “exceptionally brutal or heinous behavior indicative of wanton cruelty,” is also absent from these facts. Compare People v. Turner (1981), 93 Ill. App. 3d 61, 416 N.E.2d 1149, and People v. Gray (1979), 80 Ill. App. 3d 213, 399 N.E.2d 206, with People v. Clark (1981), 102 Ill. App. 3d 414, 429 N.E.2d 1255. See also People v. La Pointe (1981), 88 Ill. 2d 482, 499-501, 431 N.E.2d 344.

Because defendant’s last argument with respect to sentencing may again arise at the resentencing proceeding, we shall give it consideration here.

Defendant urges that the sentence was a product of the court’s consideration and reliance upon evidence of other rapes and assaults upon women for which defendant had neither been charged nor convicted. The State contends that the trial court properly reviewed this testimony, relying primarily on People v. La Pointe. In La Pointe, the supreme court considered a similar argument and decided that a trial court may “properly receive proof of criminal conduct for which no prosecution and conviction ensued,” with caution and sensitivity to possibilities of preju-

dice to defendant. (88 Ill. 2d 482,499.) We find neither prejudice nor error in the present case as to this issue.

For the aforesaid reasons, we affirm defendant’s conviction, vacate the sentence imposed and remand for a new sentencing hearing.

Affirmed; sentence vacated and remanded.

DOWNING and PERLIN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    MILE DJOMLIJA et al., Plaintiffs-Appellees, v. KENNETH URBAN et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 79-1516, 79-2103, 80-490 cons.
    Opinion filed June 30, 1982.

      Richter & Tucker, Ltd., of Chicago, for appellants.
    Robert J. Hinkes, of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, Mile and Mira Djomlija, brought suit for specific performance of a real estate contract against defendants, Kenneth and Margaret Urban. The trial court entered judgment in favor of plaintiffs. We affirm.

On June 28, 1977, the parties entered into a contract whereby defendants were to convey to plaintiffs a six-unit apartment building in Des Plaines, Illinois, at a price of $134,900. The contract contained a mortgage contingency clause which provided that plaintiffs had 30 days within which to secure a written mortgage commitment. Plaintiffs were to notify defendants in writing within the 30-day period if they were unable to obtain the commitment. If defendants were not so notified, it would be conclusively presumed that plaintiffs had secured a commitment or that they would purchase the property without mortgage financing. No closing date was specified in the contract. Plaintiffs did not secure a mortgage commitment within the 30-day period, and they did not notify the sellers that a commitment had not been obtained.

Plaintiffs testified that they were informed by the sellers’ broker that the sellers were not in a hurry to close and wanted to postpone the closing until after January 1, 1978, for income tax purposes. Plaintiffs therefore did not believe that it was urgent that they obtain the mortgage commitment. Plaintiffs also were not in a hurry to close because they planned to close on the sale of a building they owned in Rosemont, Illinois, in early September, and they wanted to apply some of the proceeds towards the purchase of the Des Plaines property. Plaintiffs stated that they would have had sufficient funds for the closing without these proceeds.

Plaintiffs’ attorney testified that he first tried to set a closing date for the first or second week in September which was when he first learned the name of defendants’ attorney. It appears that no closing date was arranged at that time. According to plaintiffs’ attorney, sometime prior to mid-October, defendants’ attorney informed him that defendants wanted to delay the closing for personal reasons. In Mid-October, defendants’ attorney suggested that the closing could go ahead “if the broker was eliminated” because defendants were unhappy with the broker’s actions. Plaintiffs refused to alter the contract in regard to the broker’s commission. Plaintiffs’ attorney further testified that he again contacted defendants’ attorney regarding the closing in November. He was unaware that defendants did not intend to close until he received a letter to that effect from defendants’ attorney in December.

Defendants testified that they were not sure that they wanted to sell the property and that they had put the property up for sale “[just to see] what the market would bring.” It was their understanding that they had the option of choosing whether or not to close on the property. Defendants learned in early August that plaintiffs did not have a mortgage commitment. Defendants told the broker and their attorney that they did not wish to sell and that the earnest money should be returned to plaintiffs. According to defendants, neither plaintiffs nor their attorney demanded that a closing date be set, and plaintiffs never tendered the funds needed to close.

The trial court ruled that plaintiffs were entitled to specific performance. It ordered that the closing take place within 30 days. The closing was aborted several times and finally occurred in late December. The closing took place after defendants filed their notice of appeal. The trial court also dismissed defendants’ suit for declaratory judgment which defendants had filed in the third municipal district shortly before plaintiffs brought this action. The declaratory judgment action had been transferred to the chancery division of the first district and consolidated with this specific performance action.

Defendants first contend that plaintiffs were not entitled to specific performance because plaintiffs breached the contract. Defendants’ argument relates in part to the mortgage contingency clause, which reads:

“This offer is contingent upon me securing within 30 days of acceptance hereof by owner of said property a mortgage loan commitment in writing for $107,900 with interest at not more than 9% per annum * * *. If I do not obtain such commitment, I shall notify Seller in writing within said number of days. If Seller is not so notified it shall be conclusively presumed that I have secured such commitment or will purchase said property without mortgage financing. If seller is so notified, Seller and broker may, within an equal number of additional days secure a mortgage commitment for me upon the same terms. * * * If I notify Seller as above provided, and neither I, Seller, nor broker, secure * * * such commitment * * *, this agreement shall be null and void and all earnest money shall be returned to me * * *.’

According to defendants, plaintiffs did not comply with the clause because they “failed to obtain a written mortgage commitment and further failed to notify [defendants] in writing of such failure within the required 30 day period.”

We believe that the language of the mortgage contingency clause itself disposes of defendants’ argument. Under the terms of the clause, if plaintiffs did not notify defendants in writing within the 30-day period that they were unable to obtain the commitment, then a conclusive presumption would arise that plaintiffs had either secured a mortgage commitment or would purchase the property without mortgage financing. Since plaintiffs did not notify defendants in writing that they had not obtained a commitment, this presumption arose. The effect of plaintiffs’ failure to notify defendants in writing that they did not have a written commitment was to make the contract binding and not, as defendants suggest, to terminate it. The contract could not have become null and void unless plaintiffs notified defendants in writing that they did not obtain a commitment and thereafter defendants and their broker failed to secure financing for plaintiffs. This did not occur. Defendants’ claim that they orally learned of plaintiffs’ failure to get a commitment is of no significance since the contract became binding in the absence of written notification. We therefore reject defendants’ argument that plaintiffs breached the contract by failing to comply with the mortgage contingency clause.

Defendants also argue that plaintiffs breached the contract because they did not deposit with the broker the total amount of earnest money required by the contract. The contract reads: “$ One Thousand* * * earnest money * * * (equal to at least 10% of the purchase price) * * *." While $1000 is less than 10% of the purchase price of $134,900, this inconsistency is insufficient to defeat plaintiffs’ right to specific performance. First, the words “One Thousand” are written by hand while the rest of the provision is printed. Generally, where there is conflict in a contract between handwritten and typed or printed terms, the handwritten terms will be deemed controlling. (Berman Leasing Co. v. Chicago Terminal Clearance, Inc. (1967), 88 Ill. App. 2d 43, 46, 232 N.E.2d 180, 182; see Illinois Valley Asphalt, Inc. v. La Salle National Bank (1977), 54 Ill. App. 3d 317, 322, 369 N.E.2d 525, 529.) In addition, the balance to be paid is shown in the contract as $133,900, a figure which is consistent with the $1000 earnest money figure. Finally, it appears that defendants did not object to the payment of only $1000 until after the trial. Under the circumstances, we cannot say that plaintiffs breached the earnest money provision.

Defendants next contend that plaintiffs should not have been granted specific performance because they were not ready, willing and able to close. Defendants argue that plaintiffs were not able to close until after they sold their Rosemont property in September. Plaintiffs, however, testified that while they would have liked to have applied the Rosemont sale proceeds to the purchase of the property involved here, those funds were not essential, and the money could have been obtained in other ways. Moreover, defendants never demanded that the closing be set before the completion of the Rosemont sale. Mere speculation by defendants that plaintiffs were not ready, willing and able to perform within the 2ii, months following the signing of the contract is an insufficient basis upon which to deprive plaintiffs of their right to specific performance.

Defendants further argue that plaintiffs were not ready, willing and able to close on July 23, 1979, a date set by the court for closing. It is undisputed that plaintiffs did not tender the purchase money on this date. However, to be entitled to specific performance, a party need not have performed according to the terms of the contract if he can establish that he was ready, willing and able to perform but was prevented, and thus excused, from doing so by the acts of the other party. (See Tantillo v. Janus (1980), 87 Ill. App. 3d 231, 234, 408 N.E.2d 1000, 1003.) We believe that plaintiffs’ failure to tender the purchase money on July 23 was caused by defendants’ actions and was therefore excusable.

Plaintiffs both alleged and proved that they were ready, willing and able to close at virtually all times. Although numerous closing dates were set by the court, defendants consistently caused them to be cancelled. Defendants aborted a June closing date by filing their post-trial motion the day before. As for the closing set for July 23, defendants filed their notice of appeal only one court day prior thereto. Plaintiffs did not learn of the filing prior to the scheduled closing, and their prospective mortgagee, Western Savings & Loan Association, refused to relinquish the mortgage money due to the pending appeal. Another closing was set for September, and one day before it was to occur defendants filed a related suit in the Federal district court. That same day, defendants sought a stay of the closing in this court. The motion for the stay was granted upon condition that defendants post a $10,000 bond. It does not appear that this bond was ever posted, and the stay was vacated in early October. Defendants caused yet another closing to be aborted in November. The closing finally took place in court in December.

We believe that plaintiffs’ inability to close on July 23 must be attributed to defendants. While we agree with defendants that their right to appeal could not be nullified by the closing, this does not mean that they were entitled to use their notice of appeal as a means of preventing the closing in the absence of a stay. The record shows a consistent pattern of last minute maneuvers on defendants’ part to thwart the various scheduled closings, including the closing that was to have occurred on July 23. By filing their notice of appeal shortly before July 23 and not immediately notifying plaintiffs of the filing, defendants effectively prevented plaintiffs from securing the purchase money mortgage. Plaintiffs had no opportunity to discuss with Western Savings the effect that the notice of appeal would have on the loan or to make other arrangements for financing. Under the totality of the circumstances, plaintiffs’ inability to tender the purchase money on July 23 does not vitiate plaintiffs’ right to specific performance.

Also in this regard, defendants argue that the court lacked jurisdiction to set closing dates and to amend the final judgment once the notice of appeal was filed. However, by resetting the closing dates the court was riot substantively changing its prior orders but rather was enforcing its orders for specific performance. The court had specifically retained jurisdiction to enforce its orders. Since defendants did not seek a stay of the judgment for specific performance (other than the stay they sought in September for which they never posted the requisite bond), the operation of the judgment was not suspended by the filing of the notice of appeal (see 2 Ill. L. & Prac. Appeal ir Error sec. 398 (1953)). Therefore, the court did not err in acting to enforce its judgment.

Defendants next contend that the contract was not specifically enforceable because it did not provide for a closing date and the terms regarding the earnest money were ambiguous. While it is true that a contract must be clear, certain and definite in its material provisions in order to be specifically enforceable (see Crane v. Mulliken (1980), 86 Ill. App. 3d 1076, 1081, 408 N.E.2d 778, 781), the contract was not so ambiguous or lacking in material terms that specific performance should not have been allowed. We have previously discussed the apparent inconsistency in the provision relating to the earnest money and determined that the contract provided for the payment of $1000 rather than 10% of the purchase price. Additionally, we do not believe that the lack of a closing date is a material omission. Where a contract does not set a closing date and time is not made of the essence, the law will imply that the contract is to be performed within a reasonable time. (Bladel v. Carroll (1929), 336 Ill. 168,170-71,167 N.E. 790,791; Ullspergerv. Meyer (1905), 217 Ill. 262, 267,75 N.E. 482,484; Werling v. Grosse (1979), 76 111. App. 3d 834, 841-42, 395 N.E.2d 629, 635.) An exact closing date was not essential to the contract here, and the court could supply a closing date without altering the agreement between the parties. Defendants’ contention that the court could not supply a closing date because the parties never agreed to close is untenable. Nothing in the contract supports defendants’ contention that they had an option not to close.

The granting of the equitable remedy of specific performance is a matter of sound judicial discretion controlled by established principles of equity and exercised upon a consideration of all the facts and circumstances in the particular case. (Faulkner v. Black (1941), 378 Ill. 112, 118, 37 N.E.2d 796, 800.) We conclude that plaintiffs are entitled to specific performance and that it would be inequitable to deny them the benefit of their contract. Compare Nyderv. Champlin (1948), 401 Ill. 317, 81 N.E.2d 923.

Next, defendants contend that the trial court erred in excluding their testimony about improvements they made to the subject property “after the Contract [was] signed and during a period of time they believed the deal was dead.” According to defendants, if the trial court had known that defendants had spent approximately $2000 on improvements, it might have concluded that it would be inequitable to grant plaintiffs specific performance or that defendants should be awarded a $2000 “allowance.” Defendants rely on Fitzpatrick v. Allied Contracting Co. (1962), 24 Ill. 2d 448, 456, 182 N.E.2d 183, 187, where the court quoted the rule set forth in Elder v. Clarke (1944), 385 Ill. 335, 339-40, 52 N.E.2d 778, 780, that “where improvements of a permanent character are made in good faith by one in possession, believing himself to be ” e * an owner for full value, and under circumstances justifying such a belief, and the expenditure is reasonable and of benefit to the estate, an allowance may be made in a court of equity, where title is found to be in another.”

The rule relied on by defendants is clearly inapposite here. Defendants did not make an offer of proof as to the nature of the alleged improvements or their permanent character. Moreover, the evidence shows that defendants were not justified in their belief that they would continue to own the property because the contract was not binding and they had the option not to perform. Knowing that they had executed a contract to sell their property, defendants could not then make improvements and hope to alter or defeat the contract by their actions. Therefore, even if defendants’ testimony regarding improvements had not been excluded, equitable principles would still have required that plaintiffs be granted specific performance and that defendants be denied compensation for the improvements.

Finally, defendants argue that the declaratory judgment action which they filed in the municipal department of the third district of Cook County should not have been transferred to the chancery division of the first district of Cook County and should not have been consolidated with the action for specific performance. Defendants’ argument that the declaratory judgment action was erroneously transferred to the chancery division rather than the law division overlooks the fact that under the Illinois Constitution of 1970, the distinction between courts of law and equity was abolished, thereby vesting the circuit court with original jurisdiction of all justiciable matters (with certain exceptions not applicable here). (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 115, 387 N.E.2d 878, 885; Stevens v. Protectoseal Co. (1975), 27 Ill. App. 3d 724, 729, 327 N.E.2d 427, 431; Ill. Const. 1970, art. 6, sec. 9.) The divisions of the circuit court of Cook County, law division vis-a-vis chancery division, are for administrative purposes only and no longer constitute jurisdictional barriers. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 115, 387 N.E.2d 878, 885; see H. Fins, Illinois Appellate Practice Under the New Constitution 110-19 (2d ed. 1977).) Therefore, since the trial court had jurisdiction to hear the issues in the declaratory judgment action, defendants’ argument is untenable.

Moreover, we believe that the declaratory judgment action was properly consolidated with the action for specific performance. Pursuant to section 51 of the Civil Practice Act, actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right. (Ill. Rev. Stat. 1977, ch. 110, par. 51; see Vitale v. Dorgan (1975), 25 Ill. App. 3d 941, 944, 323 N.E.2d 616, 618.) The trial court is given broad discretion in determining whether to grant a motion to consolidate. (Needy v. Sparks (1977), 51 Ill. App. 3d 350, 355-56, 366 N.E.2d 327, 335.) The gist of the allegations in the complaint for declaratory judgment was that the contract between plaintiffs and defendants was null and void because plaintiffs did not secure a mortgage commitment within the allotted time and the contract did not provide for a specific closing date. The relief sought was a declaration that the contract was null and void, execution of a release by plaintiffs of any interest in the property which they claimed under the contract which they had recorded, and an award of costs. The issues raised by the declaratory judgment action were virtually identical to those raised in the specific performance action, and failure to consolidate the actions could have resulted in inconsistent judgments. Under these circumstances, there was no abuse of discretion in consolidating the two cases. The consolidation was clearly proper.

The only remaining question is whether consolidation of these cases in the chancery division resulted in an improper denial of defendants’ right to a jury trial. Under section 64 of the Civil Practice Act, a plaintiff who desires a trial by jury must file a demand therefor with the clerk at the time the action is commenced. (Ill. Rev. Stat. 1977, ch. 110, par. 64.) Good cause must be established in order to obtain an extension of time in which to file a late jury demand. (Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 95, 382 N.E.2d 1201, 1203; see Ill. Rev. Stat. 1977, ch. 110, par. 59; Ill. Rev. Stat. 1977, ch. 110A, par. 183.) Defendants here did not file a jury demand when they filed their complaint for declaratory judgment on January 25, 1978. They did file a timely jury demand in the specific performance action on May 24, 1978. On June 5, defendants filed a petition for leave to file a jury demand in the declaratory judgment action. Defendants alleged that they had not filed a jury demand originally because “inasmuch as the action is a declaratory judgment ° * * there were no factual issues”; that the action had been transferred to the first district for consolidation with the specific performance action; and that “[tjherefore, there are now factual disputes in the case, which disputes should be adjudicated by a jury.” No ruling on this petition is in the record.

Under the circumstances, defendants were not denied a right to a jury trial. Defendants made no demand for a jury at the time they filed their declaratory judgment action. Their contention that they were entitled to a jury trial is based on factual issues which they assert were raised in the specific performance action. However, the factual issues raised in the specific performance action were essentially the same as those involved in the declaratory judgment action, and therefore, consolidation of the specific performance action with the declaratory judgment action does not constitute a showing of good cause which would have entitled defendants to file a late jury demand in their action for declaratory judgment. Moreover, the granting of a jury trial where equitable relief is sought is discretionary with the trial court. (111. Rev. Stat. 1977, ch. 110, par. 63.) We conclude that defendants’ contentions are without merit.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

WHITE, P. J„ and McGILLICUDDY, J., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODGER N. GRADY, Defendant-Appellant.
    First District (5th Division)
    No. 81-33
    Opinion filed July 9, 1982.

      David L. Lee, of Winston & Strawn, and Ralph Ruebner, of State Appellate Defender’s Office, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik and Thomas A. Rieck, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was charged with murder, armed violence, attempted murder and aggravated battery, tried before a jury and found guilty of all counts. He was sentenced to an extended term of 50 years for murder and to 20 years for aggravated battery to be served concurrently. Defendant appeals.

The issues raised on appeal are: (1) whether the trial court should have suppressed the lineup identifications because the lineup was suggestive; (2) whether the trial court improperly prevented the defense from cross-examining a prosecution witness as to a battery charge which had been stricken with leave to reinstate (SOL’d) one week prior to testifying; (3) whether it was improper to admit into evidence photographs of the scene of the crime which inaccurately portrayed the lighting conditions at the time of the crime; (4) whether the trial court improperly prevented a forensic pathologist from giving his opinion as to the effect the alcohol level found in the blood of the victim would have on one’s consciousness; and (5) whether the trial court improperly sentenced defendant to an extended term sentence. The following evidence was adduced at trial.

Michael Berry testified that on May 8, 1979, he and his friends were playing basketball at Dawes Park until 9:30 p.m. While he was near a water fountain in the park, the defendant and some of the defendant’s friends approached him and started an argument. When Berry called to his own friends, the defendant’s group and the defendant left.

About an hour later Berry was at 7919 S. Wood Street. Ernest Durham, Irving Wright, Larry Muse, Tim Quinn and Milton Robinson were also present on the east side of the street in front of a courtyard building. Berry was sitting on a short wall across the front of the courtyard listening to his radio. Durham and Muse were standing on the grass talking to each other in front of the building. Wright was on the grass walking toward Durham and Muse. Quinn was approaching the group from the other side of the street where another group of people was located. The lighting conditions were described as very good. The scene was lit by building lights and two streetlights each more than 50 feet away.

A black man, about 5'10" with short black hair, wearing dark blue pants and a green sweatshirt with white lettering across its front, approached. This man was later identified as the defendant. Defendant had just passed the curb and was on the walkway when defendant spoke to Wright and asked him about Berry. Wright looked at his face during this conversation. Then someone yelled that Berry was present. At this point the defendant pulled out a gun and told Wright not to lie. The defendant fired a shot in the air and told everyone to get down.

Durham and Wright crouched but continued to watch the defendant. From a short distance they saw the defendant walk to Muse, shoot him in the chest and kick him in the face. When Robinson heard the first shot he began to walk toward 80th Street. However, Robinson looked back over his shoulder and saw the assailant, who was two feet from Muse, shoot and kick Muse. Quinn, who knew the defendant from high school, saw him shoot and kick Muse. Quinn was eight feet from the defendant at this time and it was light enough to see the defendant. After Muse was shot Quinn began to walk back across the street but he turned and saw the defendant then shoot Berry. Durham was still in a crouching position and was much closer than Quinn to the defendant. Durham saw the defendant shoot Berry twice. Wright ran between the parked cars but saw the defendant chase Berry around the short wall at the front of the courtyard. The defendant shot Berry once and Berry threw a radio at the defendant. Defendant shot Berry a second time. Berry told investigators later that he did not get a good look at the defendant’s face.

After shooting Berry defendant pointed his gun at Wright and pulled the trigger, but the gun did not discharge. Defendant fled, and Wright and Durham gave chase. Defendant tried to shoot his pursuers two more times during the chase, but the gun did not discharge. Eventually Durham and Wright cornered the defendant in the rear of 7932 S. Hermitage. The police arrived shortly thereafter and removed the defendant from the building. Wright entered the building but was ejected by the police.

A few hours later a lineup was conducted at the police station. The lineup consisted of five black men of approximately the same height and build. In the lineup defendant wore a green sweatshirt turned inside out. Each of the four eyewitnesses identified defendant as the assailant. Each also made an in-court identification of defendant.

Defendant testified that on the night in question he left his mother’s house to go jogging at 9:15 p.m. Defendant stopped at O’Halloran Park to look for friends. Failing to find any friends in the park, he headed to a barbeque place at 79th and Wood Streets. He was walking on the east side of the street but crossed the street to avoid a group of people on the east side of Wood Street. Defendant saw another group of people on the west side of the street. While crossing from the east side to the west side of Wood Street, defendant heard a shot. He started to run towards 79th Street. He heard someone say, “There go one of them.” Defendant saw only one person chasing him through the alleys and yards.

Defendant testified that he ran towards the only light he saw. He broke into the rear of the building for protection. He told a man to call the police because someone was shooting. About 15 to 20 minutes later, a police officer arrested him.

The jury found defendant guilty of all counts. Defendant received an extended term sentence of 50 years for murder and 20 years for aggravated battery to run concurrently. Defendant appeals.

Opinion

Defendant first contends that the lineup was impermissibly suggestive because of the five men in the lineup only the defendant wore a green sweatshirt and that the in-court identifications of defendant were tainted thereby.

An accused is entitled to a fair identification procedure and is deprived of due process if considering the totality of the circumstances a pretrial confrontation is unnecessarily suggestive and conducive to mistaken identification. (Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967; Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375.) An unnecessary and suggestive identification procedure does not per se require exclusion of the identification testimony. Such testimony is admissible if it is reliable considering the totality of the circumstances and there is not a very substantial likelihood of irreparable misidentification. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) Factors to consider in determining the reliability of identification evidence, despite its suggestive aspects, include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation and the time between the crime and the confrontation. (Manson.) These principles have been adopted and applied by the Illinois Supreme Court. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.

Defendant cites People v. Franklin (1974), 22 Ill. App. 3d 775, 317 N.E.2d 611, and seveal other non-Illinois cases for support of his argument that because he was the only individual in the lineup wearing a green sweatshirt the lineup was improperly suggestive. The Franklin court held that forcing defendant alone to wear the clothes worn by the perpetrator, hot pink pants, a camel hair coat and a black hat, made the lineup unduly suggestive. In rendering its ruling the court stated that lineup suggestiveness must be made on an objective basis and not be determined on the subjective basis of its effect on the witnesses. However, Franklin and the other cases cited by defendant were decided three years prior to the United States Supreme Court decision in Manson, which in effect rejected the per se inadmissible approach taken in Franklin. For as discussed previously, Manson states that in determining whether lineup identification should be suppressed, the focus should not be only on the procedures employed in the lineup but also on factors such as the witness’ opportunity to view the criminal at the time of the crime, a subjective criterion. This two-step approach of evaluating whether identification evidence should be suppressed was impliedly utilized in People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513. There the court found that although the one-man show-up identifications of defendant made in a parking lot were suggestive, they were still reliable after evaluating the totality of the circumstances using the factors set forth in Manson.

Lineups have been held not to be impermissibly suggestive even though defendant was the only person in the lineup wearing a particular article of clothing, worn by or similar to that worn by the perpetrator. (People v. Anthony (1980), 90 Ill. App. 3d 859, 418 N.E.2d 757; People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121; People v. Young (1981), 97 Ill. App. 3d 319, 422 N.E.2d 1158; People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999.) At the hearing on defendant’s motion to suppress, defendant called Durham, Wright and Quinn as witnesses. All testified that the assailant wore a green shirt with white lettering. Officer Gonzales testified that when interviewing the witnesses prior to the lineup, Durham and Wright had described the assailant as wearing a green shirt. Quinn had described him as wearing a green shirt with white lettering. The picture in evidence of the lineup shows that no white lettering was visible on the similarly colored shirt that defendant wore. Therefore, as defendant was then wearing a green shirt without the identifiable white lettering, the similarly colored shirt did not make the lineup so suggestive as to make the lineup identification invalid. Young; see People v. Spence (1976), 43 Ill. App. 3d 1044, 357 N.E.2d 1245.

Even assuming, arguendo, that the lineup was suggestive, the factors in Manson and Mantón must still be applied to determine if the identifications were nonetheless reliable. The record shows that although the incident occurred at night, the lighting was described as very good. The four lineup witnesses had a good opportunity to view the assailant as they were in close proximity to him at the time of the incident, had unobstructed views of him, and as defendant took the time to have a conversation with Wright, shoot Muse, kick Muse, and shoot and chase Berry around the building. After the shooting ended two of the witnesses chased the assailant from 7919 S. Wood to 7932 S. Hermitage. During the chase the assailant stopped, turned and fired again at his pursuers. Additionally, Quinn testified that he had seen the assailant previously at least a hundred times when they were both high school students, although that was three years previous to the shooting. All the witnesses described defendant as approximately 5' 10" to 5'11", black, slender to medium build, with short hair, wearing blue pants and a green shirt and no jewelry. Each was definite in his identification. Furthermore, only four hours elapsed between the shooting and the identifications. Thus, in light of the totality of the circumstances, even if the lineup was suggestive, the identifications were reliable, resulting in no prejudice to defendant.

In light of the foregoing, it is unnecessary to consider whether the in-court identifications were proper, as “any identification in the ‘wake’ of a reliable out-of-court identification is admissible.” People v. Manion (1977), 67 Ill. 2d 564, 572, 367 N.E.2d 1313, 1317.

Defendant next contends that the trial court improperly prohibited defense counsel from cross-examining Berry on bias relative to a battery charge that had been SOL’d the week before he testified. It is well settled that the trial court is vested with substantial discretion to determine both the manner and scope of cross-examination, and its decision on such issues will not be overturned absent a showing of clear abuse of that discretion resulting in manifest prejudice. (People v. Coles (1979), 74 Ill. 2d 393, 385 N.E.2d 694.) However, showing interest or bias on the part of a witness is an accepted method of impeachment and the fact that a witness has been arrested or charged with a crime may be shown or inquired into where it would reasonably tend to show that his testimony might be influenced by interest, bias or a motive to testify falsely. (People v. Mason (1963), 28 997 2d 396, 192 N.E.2d 835.) These matters should not be resolved solely in limine. People v. Eddington (1979), 77 997 2d 41, 394 N.E.2d 1185.

The trial court conducted a hearing outside the presence of the jury on the defendant’s motion to allow cross-examination as to whether any promises of leniency on the battery charges had been made in exchange for Berry’s testimony in the instant case. Although Berry knew that “SOL” meant stricken off with leave to reinstate, he thought that meant the case was thrown out of court and did not know that it could be reinstated within 160 days. Berry testified that no State’s Attorney or assistant State’s Attorney had discussed leniency with him on the battery charge or had tried to make a deal in exchange for his testimony. The assistant State’s Attorney also offered to testify that no promises of leniency or other consideration had been made in exchange for dismissal of the battery charges. Furthermore, the court ruled that the defense could cross-examine Berry relative to the circumstances of the charge being SOL’d but the court precluded inquiry into any alleged leniency or promises of leniency in exchange for Berry’s testimony. The record indicates, however, that even though the court allowed defense counsel to cross-examine Berry as to the SOL’d charges and thus make the jury aware of their existence — the defense did not cross-examine Berry on this point during trial. Therefore, under these circumstances the trial court’s ruling was not an abuse of discretion, and further, defendant can hardly claim prejudice when he did not even cross-examine Berry as permitted by the court. See Eddington.

Defendant next contends that the photographs of the scene should not have been admitted into evidence because they did not accurately portray the lighting conditions at the time of the occurrence. Defendant raised this issue in his written post-trial motion for a new trial; however, he did not object to these photographs being entered into evidence. As a timely objection to the entry of evidence is required, any error committed here is deemed waived. (People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817.) Furthermore, defense counsel extensively cross-examined Ronald Hale who took three of the four challenged photographs. He testified that the exhibits did not portray the lighting conditions during the crime as seen by the human eye and explained the differences between those conditions as perceived by the human eye and the conditions as depicted by the camera. Therefore, the jury was not misled nor could prejudice result from the introduction of the photographs.

Defendant next contends that the trial court improperly prevented a forensic pathologist from giving his opinion as to the effect the alcohol level found in the blood of the victim would have on one’s consciousness.

The pathologist was allowed to testify that the level of alcohol found in the victim’s blood would be considered high. He was not allowed to testify as to the effect of that level on behavior. Defendant asserts that this exclusion was error because the jury could have used its common experience to determine that the blood alcohol level of the State’s witnesses approximated that of the deceased, thus inferring the “possible” intoxication of the witnesses by any intoxication found in the victim. The State contends that the excluded testimony was irrelevant and immaterial and therefore was properly excluded. It is elementary that to be admissible evidence must be relevant and material; it must end to make a proposition at issue either more or less probable. (People v. Yuknis (1979), 79 Ill. App. 3d 243, 398 N.E.2d 258.) In the instant case evidence of the high level of alcohol found in the victim’s blood introduced to prove that the State’s witnesses were drinking would be too remote and uncertain to justify its admission. (Yuknis.) Furthermore, the pathologist was allowed to testify that a high level of alcohol was found in the victim’s blood. From that alone the jury might infer that the witnesses had also consumed large quantities of alcohol. Therefore, we fail to see any prejudice resulting from the court’s ruling.

Finally, defendant contends that the trial court improperly imposed an extended-term sentence. We disagree. When section 5 — 8—2(a) of the Unified Code of Corrections is read in conjunction with section 5 — 5—3.2(b)(2), an extended sentence may be imposed if the most serious felony, of which the offender is convicted, is accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (People v. Evans (1981), 87 Ill. 2d 77,429 N.E.2d 520; Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 8—2(a) and 1005 — 5—3.2(b)(2).) In evaluating the brutality and heinousness of an offense, the entire spectrum of facts surrounding the given incident must be analyzed and evaluated. (People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823.) Examples of conduct which have been considered sufficiently heinous and brutal to warrant imposition of an extended-term sentence include unnecessarily terrorizing a victim (People v. Young (1981), 96 Ill. App. 3d 426, 420 N.E.2d 1051; People v. Jones (1979), 73 Ill. App. 3d 99, 391 N.E.2d 767); inflicting multiple stab wounds (People v. Childs (1981), 95 Ill. App. 3d 606, 420 N.E.2d 513; People v. Gray (1979), 80 Ill. App. 3d 213, 399 N.E.2d 206); stabbing a victim after shooting the same victim (Devine); beating and choking a victim to death (People v. Davis (1981), 98 Ill. App. 3d 461, 424 N.E.2d 630); and beating a victim in an unprovoked attack (People v. Warfel (1979), 67 Ill. App. 3d 620, 385 N.E.2d 175). Furthermore, the heinous or brutal behavior directed at the victim can occur after the victim is dead. Devine.

In the instant case the trial court specifically referred to the unprovoked nature of the attack and the fact that defendant kicked the victim after shooting him. The general rule is that imposition of a sentence is a matter of judicial discretion and absent an abuse of discretion, the sentence of the trial court may not be altered upon review. (People v. Perru quet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In light of the circumstances and factors considered by the trial court, the imposition of the extended term was not an abuse of discretion.

For the reasons cited herein the judgment of the trial court is affirmed.

LORENZ and WILSON, JJ., concur.

       Defendant also cites Foster v. California (1969), 394 U.S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127, in support of this argument. However, Foster concerned repeated confrontations between a suspect and a witness. The court concluded the repeated confrontations were so suggestive as to violate due process. Manson v. Brathwaite (1977), 432 U.S. 98,105 n.8, 53 L. Ed. 2d 140.148 n.8. 97 S. Ct. 2243. 2248 n.8.


author: JUSTICE PERLIN

text:
    ROBERT E. ROBINSON, Plaintiff-Appellant, v. COOK COUNTY POLICE & CORRECTIONS MERIT BOARD et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81-1273
    Opinion filed May 18, 1982.
    Rehearing denied June 17, 1982.

      Michael H. Saken, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., and Susan Condon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

The sheriff of Cook County filed a complaint with the Cook County Police and Corrections Merit Board (Board) against plaintiff, Robert Robinson (Robinson), a deputy sheriff in the Cook County Sheriff’s Police Department. The complaint sought discharge of Robinson for alleged violations of certain rules and regulations of the Board. After an administrative hearing, the Board entered a finding that Robinson was guilty of the violations charged and ordered him discharged. Robinson appealed the Board’s order to the circuit court pursuant to section 13 of the Administrative Review Act. (Ill. Rev. Stat. 1977, ch. 110, par. 276.) On review the circuit court affirmed the Board’s finding as to Robinson’s misconduct but remanded the matter for reconsideration of the discharge sanction “in light of [the circuit] court’s opinion that said sanction is unduly harsh.” On remand the Board affirmed its discharge order. The circuit court then affirmed the Board’s order including the sanction of discharge, and plaintiff appeals from that determination raising the following issues for our review: (1) whether the Board’s order is invalid because it fails to include any findings of fact; (2) whether the Board’s findings were against the manifest weight of the evidence; and (3) whether the Board’s findings constitute sufficient cause to warrant discharge.

For the reasons hereinafter stated, we affirm.

The testimony on the substantive issues before the Board was provided by Janet Frohlich (Frohlich), the complaining witness, and Robinson. Robinson also presented testimony of two reputation witnesses.

At the hearing on November 14, 1978, Frohlich, a waitress in a bar and lounge in Oak Forest, Illinois, testified to the following: that at approximately 4 a.m. on June 26, 1978, Frohlich was driving home from work when Robinson stopped her because the vehicle she was driving had a burned-out headlight. As Robinson approached her vehicle, Frohlich told him that she knew about the headlight because another police officer had just warned her about it. When Robinson asked to see her driver’s license, Frohlich told him that she had lost it. Robinson then informed Frohlich that he would have to take her to the Glenwood police station. Frohlich protested because she preferred going to the Tinley Park station which was closer to the point of the traffic stop, but Robinson insisted on going to Glenwood because he “worked out” of that station. When Frohlich asked if she could park her vehicle in a safe place, Robinson suggested that she park it at her apartment. Frohlich agreed to this suggestion, but as she was driving her car toward her apartment, she changed her mind and decided to park in a parking lot adjacent to a 7-Eleven store located approximately one-half block from the point of the stop. Robinson followed Frohlich in his squad car and parked behind her. Their vehicles were parked in front of the store, and the cashier was visible through the store window. The “Mars” lights, headlights and interior lights of the squad car were left on.

Frohlich got into the back seat of the police car while Robinson sat behind the steering wheel. She testified that in response to his questions she gave him her name and address and she told him that she was separated from her husband. He told her that he would have to give her citations for driving without a license, for driving with only one headlight and for failing to report a change of address. Robinson then asked her whether she had any children. When she told him she had two, Robinson said he was going to give her a “pass” but that in return for the “pass” she owed him a “big favor.” Robinson repeated his statement and added, “Do you know what I mean by a big favor?” She responded, “I know what you mean.” Robinson then handed her a slip of paper bearing his name and home telephone number and told her to call him by noon the next day or she would be in “big trouble.” She said she would try to call.

Robinson let Frohlich out of the back seat of the squad car and she noted the car’s license number. She drove home and reported the incident to the police. She testified that she was intimidated and frightened by Robinson and that she thought he intended to elicit sexual favors from her in exchange for giving her a “pass.”

Robinson’s testimony substantially corroborated Frohlich’s version of the details of their encounter. He denied, however, that he initiated the discussion concerning Frohlich’s marital status and children. He testified that Frohlich volunteered this information in an apparent attempt to evoke his sympathy and to avoid being issued the citations. After learning of Frohlich’s family, Robinson felt sorry for her and decided to give her a “pass.” He conceded that he told Frohlich that she owed him a “big favor” in exchange for the “pass,” but he testified that the “big favor” he expected of Frohlich was that she would become an informant for him. He believed Frohlich would be a useful informant because she worked late hours in a bar and he thought she would be able to collect information from the bar’s clientele. Robinson admitted that he had never been in this particular bar and that he did not know any of its customers.

On cross-examination Robinson acknowledged that he violated department procedures regarding the recruitment of informants by failing to inform his watch commander of his efforts. He also admitted that he failed to radio Frohlich’s license number to headquarters even though it was standard operating procedure to do so.

Cook County Sheriff’s Police Sergeants Hillburn Turner and Laurence Evans, two of Robinson’s supervisors, testified as character witnesses for Robinson. Both stated that Robinson had been a deputy sheriff with the Cook County Sheriff’s Department for two years and that he had a good reputation for truthfulness and was known as a good police officer. Evans stated further that in his opinion Robinson’s conduct was “inappropriate” but admitted that at times he also had not called in license numbers, had given his home phone number to informants and had neglected departmental procedures regarding informants. Both character witnesses testified that Robinson had been suspended previously for a violation of departmental rules. Although the record is unclear regarding some details of Robinson’s prior misconduct, it appears that on February 28, 1978, only five months earlier, Robinson caused a traffic accident while driving a marked police car under the influence of intoxicating liquors. For this violation Robinson received a 29-day suspension.

After hearing all of the testimony, the Board found that Robinson had violated the following rules and regulations of the Cook County Sheriff’s Police Department:

“Chapter 14:

14.4 All officers shall employ every lawful means at their disposal in the investigation, arrest and prosecution of any person observed or known to be violating or have violated any statute or ordinance pertaining to criminal matters, traffic offenses or vice activities.

14.12 Any officer of the Department who shall in the performance of his official duties display reluctance to properly perform his assigned duties, or who acts in a manner tending to bring discredit upon himself or the Department, or who fails to assume responsibility or exercise diligence, intelligence and interest in the pursuit of his duties, or whose actions or performance in a position, rank or assignment are below acceptable standards, may be deemed incompetent and shall be subject to dismissal from the Department.

Chapter 15:

15.1 Officers and civilians shall conduct themselves in their private and professional lives in such a manner as to avoid bringing themselves or the Department into disrepute.

Chapter 18:

18.11 Conduct unbecoming an officer or civilian of the Department.

18.15 Incapacity or inefficiency in the performance of duty.”

I

Robinson contends that the Board’s order is invalid and must be reversed because the order itself does not recite the findings of fact which form the basis for the Board’s decision.

The Board responds: (1) that Robinson has effectively waived any alleged defects in the discharge order by asking this court to review the record and to reverse the order on its merits; and (2) in the alternative the Board maintains that a court of review may look to the specific facts alleged in the written charges to supplement the Board’s order.

With respect to the Board’s waiver argument, we note that the law is clear that a litigant does not waive any defects in a discharge order merely by asking this court to review that order’s sufficiency. Reinhardt v. Board of Education (1975), 61 Ill. 2d 101, 329 N.E.2d 218.

As to Robinson’s contention that the order is invalid because the order itself does not recite the Board’s findings of fact, it is firmly established that where an agency’s order states that an individual has been found guilty “as charged,” the order is held to incorporate by reference the specific facts that are articulated in the written charges. (Kozsdiy v. O’Fallon Board of Police & Fire Commissioners (1975), 31 Ill. App. 3d 173, 177, 334 N.E.2d 325; Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 1034, 301 N.E.2d 501.) In the instant case the Board’s order stated that Robinson violated certain rules of conduct “as charged.” Therefore, the facts set forth in the written charges are considered to be a part of the Board’s order. Since those facts clearly disclose the basis for the Board’s decision, we find that the Board’s order contains sufficient findings of fact.

II

Plaintiff next maintains that the Board’s findings were against the manifest weight of the evidence.

On administrative review, the court’s function is to ascertain whether the findings of the agency are supported by substantial evidence in the record and are not contrary to the manifest weight of the evidence. (Fox v. Illinois Civil Service Com. (1978), 66 Ill. App. 3d 381, 383 N.E.2d 1201.) Findings of fact by an administrative agency are prima facie true and correct. (Ill. Rev. Stat. 1977, ch. 110, par. 274.) In order to conclude that a particular finding is against the manifest weight of the evidence, the reviewing court must be satisfied that an opposite conclusion is clearly evident. (Kelly v. Police Board (1975), 25 Ill. App. 3d 559, 323 N.E.2d 624.) Furthermore, a reviewing court may not weigh the credibility of the witnesses or substitute its judgment for that of the agency. Fox v. Illinois Civil Service Com. (1978), 66 Ill. App. 3d 381, 387.

We believe that Robinson’s argument deserves scant consideration here. The record shows that Robinson himself substantially corroborated Frohlich’s testimony. The only disputed material fact was the intended meaning of the words “big favor.” The resolution of this factual issue required the Board’s evaluation of the credibility of the witnesses, and on appeal we will not disturb the Board’s findings which follow therefrom.

Accordingly, we cannot say that the Board’s findings were against the manifest weight of the evidence.

Ill

Finally, Robinson contends that the Board’s findings of fact do not constitute sufficient cause to warrant the sanction of discharge.

Illinois courts have defined “cause” as some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position. (Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 352 N.E.2d 389, aff'd and remanded (1977), 69 Ill. 2d 27.) Unlike findings of fact, agency determinations of cause are not prima facie true and correct but are subject to judicial review. (Caliendo v. Goodrich (1975), 34 Ill. App. 3d 1072, 340 N.E.2d 560.) While courts should not assume the function of a super-commission in determining what constitutes sufficient cause (Fox v. Illinois Civil Service Com. (1978), 66 Ill. App. 3d 381, 383 N.E.2d 1201), it is their function to review charges brought for discharge to determine if they are so trivial as to be unreasonable or arbitrary, if the agency acted on evidence that fairly tended to sustain the charges and if the agency’s decision sufficiently relates to the requirements of service. (DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 489, 202 N.E.2d 522; Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1982), 103 Ill. App. 3d 954, 957, 431 N.E.2d 1330, 1333.) In weighing whether cause for discharge exists, therefore, manifest weight of the evidence is not the applicable standard of review. The agency’s determination to discharge may be overturned if such determination is: (1) based on trivialities or is arbitrary or unreasonable; (2) based on evidence that does not sustain the charges; or (3) not sufficiently related to the requirements of the service. DeGrazio; Fox.

Robinson contends that the maximum sanction of discharge imposed upon him should be reduced because it was unduly harsh and hence unreasonable. Robinson refers us to a number of appellate decisions in which the courts have found the administrative penalties too severe and subject to reduction, and he places particular emphasis upon Washington v. Civil Service Com. (1981), 98 Ill. App. 3d 49, 423 N.E.2d 1136. In Washington a police officer was found guilty of soliciting a female arrestee for sex in exchange for leniency and was suspended by the commission for 29 days. The appellate court upheld the commission’s finding regarding the officer’s misconduct but sua sponte ruled that the 29-day suspension was too harsh and reduced the punishment to a five day suspension. Robinson argues that because the solicitation in Washington occurred under circumstances allegedly more egregious than the solicitation in the instant case, the sanction imposed here should be reduced. We do not choose to adapt the Washington opinion to the instant case, and we believe that reviewing courts must consider the particular circumstances of each case on its own merits. Fox.

Our review of the record in the instant case leaves us with no doubt that the evidence sustained the charges and that Robinson’s record of misconduct evinced substantial shortcomings which rendered his continuance in office detrimental to the appropriate discipline and efficiency of the Sheriff’s department. His attempt to solicit sexual favors in exchange for leniency, and his failure to comply with the rules and regulations of the sheriff’s office regarding the questioning and arrest of citizens charged with violating the law manifested an attitude and an absence of professionalism that could only bring the sheriff’s office into disrepute. Moreover, it is significant to note that this is the second time in just five months that Robinson was disciplined for a serious violation of department rules. Repeated violations within such a short period of time by a deputy sheriff with only two years of service indicates a blatant disregard of duty. We conclude that Robinson’s actions were such as the law and sound public opinion would recognize as good cause for his no longer occupying a position as a deputy sheriff. Accordingly, we affirm the order of the circuit court which upheld the Board’s order of discharge.

Affirmed.

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