text:
    OLIVER BURKEE, Plaintiff-Appellant, v. MACK CHICAGO CORPORATION et al., Defendants.—(MACK CHICAGO CORPORATION, Defendant-Appellee.)
    First District (4th Division)
    No. 80-3009
    Opinion filed December 17, 1981.

      Lucy and Suhar, of Chicago (Richard H. Lucy, of counsel), for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (Shaun McFarland, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

On January 14, 1975, the plaintiff, Oliver Burkee, was struck by a truck owned by the defendant, Mack Chicago, and driven by Jack DiLiberti. The jury returned a verdict in favor of the defendant, and in response to a special interrogatory found Burkee contributorily negligent. Judgment was entered on the verdict.

Jack DiLiberti was dead at the time of the trial and Burkee was the only witness to testify. Burkee testified that he parked his car on the south side of 39th Street, one-half block east of Wallace. He then went to a restaurant on the northeast corner of 39th and Wallace. When he left the restaurant, he proceeded east along the north side of the street. Burkee testified that immediately before he stepped into the street, westbound traffic on 39th Street was lined up about a block east from Wallace because it was stopped for the stop light at 39th and Wallace Street. Burkee, at about mid-block on 39th Street, then crossed the two westbound lanes of traffic between the stopped vehicles and reached the center line. The plaintiff testified that he looked left, that is, to the east, and did not see anything and then he looked to the right and saw no eastbound traffic. He then proceeded into the eastbound lanes when he was struck from the left by the defendant’s westbound vehicle which was traveling in the eastbound lane. It would appear that the truck had pulled into the eastbound lane of traffic in order to reach the left turning lane which is located at the intersection of 39th and Wallace.

In order for the plaintiff to have recovered a verdict in this action, he had to prove that the defendant was negligent, that he was free from contributory negligence, and that the defendant’s negligence was a proximate cause of his injuries. Proximate cause is not in issue. The plaintiff makes two manifest weight of the evidence arguments on the issues of the defendant’s negligence and the plaintiff’s freedom from contributory negligence. Since we believe that the jury’s verdict on the issue of contributory negligence was appropriate and this by itself would support the verdict, we will not consider the issue of the defendant’s negligence.

On the issue of contributory negligence, the plaintiff contends that it was against the manifest weight of the evidence for the jury to have found him contributorily negligent. The plaintiff argues that he had a right to assume that the truck would not be driven illegally on the street and that he had no duty to yield the right of way to such a vehicle. Burkee cites several cases in support of these contentions.

However, even accepting Burkee’s proposition as true, we believe that the issue of contributory negligence is still not resolved in the plaintiff’s favor. Burkee had a duty, and the jury was so instructed, to exercise ordinary care for his own safety. (Illinois Pattern Jury Instruction, Civil, No. 10.02 (2d ed. 1971) (hereinafter cited as IPI Civil).) In considering the plaintiff’s duty to exercise ordinary care for his own safety, it was the function of the jury to determine whether the plaintiff did what a reasonably prudent person would do or whether he failed to do what a reasonably careful person would not do under similar circumstances. (IPI Civil No. 10.01.) Using their own experiences in the affairs of life, the jury could reasonably have believed that the plaintiff failed to keep a proper lookout under the circumstances. The circumstances consisted of a plaintiff who did not cross at a marked crosswalk even though such a crosswalk with traffic lights was available to him immediately east of where he chose to cross the street; a plaintiff who crossed through two lanes of heavy traffic in front of two semi-trucks; and a plaintiff who failed to see the defendant’s vehicle when he claimed that he looked.

In view of the above circumstances, we believe that the evidence supports the jury’s inference and conclusion of fact that the plaintiff was contributorily negligent. (See Harrison v. Pullens (1967), 83 Ill. App. 2d 245, 227 N.E.2d 550.) Therefore, unless an opposite conclusion is clearly evident, and one is not from the evidence here, a jury’s verdict should not be disturbed. Izzo v. Zera (1965), 57 Ill. App. 2d 263, 205 N.E.2d 644.

The plaintiff’s second and final contention on appeal is that it was prejudicial error for the trial court to give defendant’s jury instruction, IPI Civil No. 70.03. The plaintiff objected to this instruction at the instruction conference, but did not offer an alternate or amended instruction. The instruction contains two quotes from the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95%, pars. 11 — 1003 and 11 — 1003.1) which stress the reciprocal nature of the duties owed between motorists and pedestrians crossing outside the crosswalk. The instruction also contains language which cautions the jury to consider these statutes in the light of all other facts and circumstances in evidence. The instruction is set out below:

“Any pedestrian crossing a roadway at any point other than within a marked crosswalk * * * shall yield the right-of-way to all vehicles upon the roadway.
Not withstanding other provisions of this Chapter or the provisions of any local ordinance, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian and shall give warning by sounding the horn when necessary 0 * “.
If you decide that the plaintiff violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the plaintiff was contributorily negligent before and at the time of the occurrence.” (Emphasis added.)

The plaintiff claims that he was prejudiced by the giving of this instruction because the pedestrian’s duty to yield has been modified by judicial construction which renders the duty to yield less than absolute. Therefore according to the plaintiff, this instruction erroneously led the jury to believe that the defendant’s truck had an unqualified right-of-way, and the failure of the plaintiff to yield the right-of-way was evidence of negligence.

We do not believe that the plaintiff was prejudiced by this instruction. The instruction is an accurate statement of the statute as it existed at the time of trial. If the plaintiff wished to modify this instruction, then he had to do more than simply object to it at trial; he had to offer an alternate or amended instruction. In Palausky v. Landers (1978), 67 Ill. App. 3d 985, 385 N.E.2d 751, the court held that the failure of a plaintiff to tender an alternate instruction independently supports the trial court’s judgment. We believe that this reason standing alone would be sufficient to counter plaintiff’s argument that he was prejudiced.

In addition, the plaintiff was not prejudiced because the instruction itself was self-curing. The jury could not be left with the erroneous impression that the plaintiff had an absolute duty to yield because the instruction emphasized the reciprocal nature of the duties owed between motorist and pedestrian and also cautioned the jury only to consider the statutory direction in the light of all other facts and circumstances in evidence. See Randal v. Deka (1956), 10 Ill. App. 2d 10, 134 N.E.2d 36; Albaugh v. Cooley (1981), 87 Ill. 2d 241, 429 N.E.2d 837.

For the above and foregoing reasons we affirm the judgment of the trial court.

Affirmed.

ROMITI, P. J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN CHATMAN, Defendant-Appellant.
    First District (5th Division)
    No. 79-730
    Opinion filed December 18, 1981.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Michele A. Grimaldi, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Following a jury trial, defendant was acquitted of attempt murder, but a verdict could not be reached as to three counts of aggravated battery, and a mistrial was declared as to them. After a second jury trial, he was convicted on each of the aggravated battery counts and sentenced to 2 to 6 years. On appeal from the judgment entered thereon, he contends that (1) his retrial violated the principles of double jeopardy; (2) the proof established that he acted in self-defense; and (3) a wooden board was improperly admitted because it was not shown to be similar to that used by complainant.

At the second trial, Alphonso Redmond testified that he was with a group of persons in front of an abandoned building and that, during an argument with defendant about a girl, defendant said he would cut him (Redmond) before he would allow Redmond to beat him with a 2-by-4 inch board, as he had beaten Freddie Watson; that after arguing for a short while, he (Redmond) turned to enter the building and, as he reached the corner of the building, he “felt like something had hit [him] in [his] back” and he “stumbled around the building, went up in the building [and] got a stick” about 2 to 3 feet long, 1 inch thick, and 3 inches wide; that he went out to where defendant was on the street corner and struck him once across the shoulders and neck — breaking the board, which he then dropped; that defendant turned around and stabbed him in the stomach with a knife; that he grabbed defendant’s hand to keep from being stabbed again and tried to get away but was stabbed 11 times before defendant was stopped by Cleven Warfield and others; and that as a result of the stabbing he was hospitalized for 1M to 2 weeks. He displayed various scars reportedly left by the wounds.

Cleven Warfield testified that he was one of those at the abandoned building when Redmond began talking to defendant; that he did not understand what was said but saw Redmond turn away from defendant, who had a knife in his hand; that he saw defendant stab Redmond, who stumbled into the doorway of the abandoned building; that while he did not actually see the knife strike Redmond’s back, he knew it was a stabbing because he observed a cut and a 5- to 6-inch tear in Redmond’s shirt; that Redmond emerged carrying a stick about 3% feet long with which he struck defendant once or twice and then dropped it after it broke; and that he (Warfield) grabbed defendant to stop further cutting of Redmond.

Henry Baker testified that he was a short distance from the abandoned building and saw defendant, Redmond, and Warfield there; that when Redmond turned to walk away, he saw defendant hit him in the back but did not see a knife at that time; that Redmond went around the corner of the building and returned with a stick about 3 feet long with which he struck defendant across the back; that Redmond dropped the stick when it broke, and then he saw defendant stab Redmond more than once with a knife while Redmond had nothing in his hands; and that Warfield grabbed defendant’s hand — after which he broke away and fled.

Officer Wade Crosson testified that after he was arrested and advised of his rights, defendant told him he had argued with Redmond who “had grabbed him around the neck” causing defendant to stab him in self-defense. It was stipulated that Redmond sustained multiple stab wounds, with a total of 13 lacerations — some of which required surgery.

Defendant testified that he was at the abandoned building and, after he told Henry Baker to stay away from his girl, Redmond made a remark which he (defendant) thought to mean Redmond would beat him with a 2-by-4, as he had done to Freddie Watson; that he told Redmond he would cut him if he attempted to do so; that when Redmond grabbed his shirt collar, he pushed him away, and Redmond turned to enter the building; that up to that time, he had not touched or stabbed Redmond; that he then walked to the street corner where, without warning, Redmond hit him twice near the temple, forehead and ear with a rotten 2-by-4; that in their struggle, the board was broken and Redmond hit him with a piece of it; that he cut Redmond with the knife he had taken out after he was struck the second time; that he continued to stab Redmond after he dropped the broken piece of board; that Warfield then grabbed them, but he broke loose and fled; and that though his head was hurting when he was arrested, he did not request medical aid nor tell the police about the board or that Redmond had grabbed him around the neck.

In rebuttal, Larry Baker testified that defendant, in referring to the stabbing, said “something came over me.”

Opinion

Defendant first contends that he could not, consistent with the principles of double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10; Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(b)), be retried for the aggravated batteries after the jury acquitted him of attempt murder and was unable to reach a verdict on those counts. Defendant was charged with the attempted murder of Redmond by stabbing him with a knife, and with three counts of aggravated battery based respectively on causing great bodily harm, permanent disfigurement, and use of a deadly weapon. He argues here that those general counts did not adequately apprise the jury either of the location of or the conduct constituting the crimes and thus did not explain which stabbing was connected to the attempt murder count and which to the aggravated battery counts. He maintains that it cannot be ascertained from the general verdict which of the stabbings resulted in acquittal or which could not be agreed upon, and consequently, since aggravated battery is a lesser included offense of attempt murder (People v. Camacho (1979), 71 Ill. App. 3d 943, 389 N.E.2d 1213), he was twice tried for at least one of the stabbings for which he had been previously acquitted.

The cases upon which defendant- relies in support of his position are unavailing. In People v. Harrison (1946), 395 Ill. 463, 70 N.E.2d 596, cert. denied (1948), 334 U.S. 812, 92 L. Ed. 1744, 68 S. Ct. 1013, after defendant was acquitted of assault with intent to murder, the victim died, and he was then indicted and convicted of murder. Defendant sought to invoke the acquittal of the lesser offense as a bar to prosecution for murder after the victim died. The court held that defendant could not have been charged with murder at the time he was acquitted of assault with intent to murder, as the victim was still alive and that the acquittal was not a bar to subsequent prosecution for murder. Thus, Harrison is inapposite, as defendant here had first been acquitted not of a lesser but of a greater offense, with no verdict having been rendered as to aggravated battery counts and no new element supervening to justify subsequent prosecution for any new offense.

In People v. Dugas (1923), 310 Ill. 291, 141 N.E. 769, defendant was convicted of assault with intent to murder and, while the matter was pending on his motion for new trial, the victim died and defendant was indicted for murder and acquitted. The court held that his motion for new trial on the first conviction should have been granted because the acquittal of murder was in bar of lesser included offenses of which defendant might have been convicted on the murder indictment and growing out of the same transaction. Thus, the acquittal of the murder charge necessarily encompassed the lesser included offense of assault with intent to murder. In the present case, by contrast, defendant was not indicted for aggravated battery for the first time after being acquitted of attempt murder. Had such been the case, under the reasoning of Dugas the acquittal for attempt murder could have been pleaded in bar of prosecution for aggravated battery. The facts of the present case do not, therefore, warrant the application of the rules announced in Harrison and Dugas.

In general, a conviction on the greater offense of attempt murder does not preclude conviction on the lesser included offense of aggravated battery, for the reason that the greater offense includes the additional element of specific intent to kill. (People v. Todorovic (1977), 53 Ill. App. 3d 1, 368 N.E.2d 471.) Thus, an acquittal of attempt murder and a conviction of aggravated battery in the same trial means that the accused was found to have committed such acts but lacked specific intent. People v. Hancock (1980), 83 Ill. App. 3d 700, 404 N.E.2d 914.

Bearing the above principles in mind, we think the present case is governed by People v. Jenkins (1976), 41 Ill. App. 3d 392, 354 N.E.2d 139, where defendant was indicted on one count of attempt murder and two counts of aggravated battery. She was acquitted of the attempt murder charge, but when no verdict could be reached as to aggravated battery, a mistrial was declared and the State subsequently sought to retry her on that offense. Holding that her double jeopardy rights had not been violated, the court stated:

“[T]he section defendant cites [Ill. Rev. Stat. 1973, ch. 38, par. 3 — 4(b)] prohibiting subsequent prosecution as to crimes which ‘defendant could have been convicted on the former prosecution’ applies to those instances where defendant is charged with only the greater offense and the trier of fact acquits him of that offense, remaining silent as to all lesser included offenses. In such circumstances any doubt concerning what the jury determination might have been, had they considered any of the included offenses, is resolved in favor of defendant. Silence implies acquittal and defendant may not thereafter be retried on any of the offenses.

In the instant case 888 [although acquitting defendant of the greater offense, the jury was not silent as to the included offenses. They did consider the charges [;] however, [they] were unable to reach a unanimous verdict as to guilt or innocence. Unlike the cases where the jury is silent, we know defendant was not acquitted here. Therefore, we need not infer an acquittal.

8 8 8 The trial court may declare a mistrial if the jury is unable to reach a verdict. [Citation.] However, it is a well-established rule that the State is entitled to retry defendant on the same charge and the doctrine of double jeopardy is not a bar to this subsequent prosecution. [Citations.]” 41 Ill. App. 3d 392, 393-94, 354 N.E.2d 139, 140.

As in Jenkins, defendant here Was initially charged with attempt murder and aggravated batteries, and although he was acquitted of attempt murder, the jury could not reach a verdict as to the aggravated batteries. The record further indicates, and defendant so concedes, that there were two separate stabbing incidents — resulting in multiple wounds to the victim — the first being outside the abandoned building and the second at the street corner. Defendant argues, however, that Jenkins is distinguishable because it involved a single shooting while the present case involved multiple stabbings. He postulates that the charges for attempt murder and the aggravated batteries were each descriptive of and applicable to any one of the stabbing incidents, and therefore that the acquittal on attempt murder relieved him of responsibility for at least one of the stabbings. Since the jury did not indicate which of the stabbings was acquitted, defendant asserts that he could not be retried on the other because of the possibility that the second trial would be for the acquitted stabbing.

We believe, however, that applying the reasoning of Jenkins, the jury did not remain silent as to those lesser included offenses, and their failure to reach a verdict on them cannot be logically equated with an acquittal. Furthermore, under the reasoning of Hancock, the acquittal on attempt murder reflects the jury’s determination that defendant lacked the specific intent to kill and is thus a pronouncement only on the absence of an element not required for proof of guilt as to aggravated battery. Assuming, therefore, that the jury separated the stabbings into two events and acquitted him of attempt murder on one, as defendant suggests, he could nevertheless be retried for aggravated battery on the stabbings for which no verdict was reached and for which there was acquittal of attempt murder.

Defendant next contends that the State failed to disprove beyond a reasonable doubt that he was acting in self-defense. Section 7 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 1) provides in relevant part:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself * * * against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself * *

If some evidence is presented sufficient to raise the issue of self-defense, the State must prove defendant guilty beyond a reasonable doubt both as to that issue and each element of aggravated battery. (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 2.) However, if defendant unreasonably believed that the stabbing of the victim was necessary to prevent his own imminent death or great bodily harm, the assertion of self-defense cannot prevail. (See People v. Mosley (1979), 68 Ill. App. 3d 721, 386 N.E.2d 545.) The trier of fact determines whether the use of force by the accused was based upon a reasonable apprehension of death or serious bodily harm in light of his assessment of the situation at the time he used such force against another (People v. Moore (1976), 43 Ill. App. 3d 521, 357 N.E.2d 566), and a guilty verdict will not be disturbed on review unless the evidence is so unsatisfactory as to raise a reasonable doubt of guilt (People v. Kyles (1980), 91 Ill. App. 3d 1019, 415 N.E.2d 499).

The evidence before us indicates that defendant and Henry Baker were arguing, and when Redmond arrived he and defendant started an argument — during which each allegedly threatened the other. When Redmond turned to enter the abandoned building, according to the testimony of Warfield and Henry Baker, defendant stabbed or hit him in the back. It appears that Redmond then got a board from the building and went to the corner where defendant was standing and struck him with the board, which broke and was dropped by Redmond leaving him empty-handed; that nevertheless defendant repeatedly stabbed Redmond, who attempted to retreat and to repel defendant by holding his arms; and that it was not until he was grabbed by Warfield that defendant stopped stabbing Redmond.

In light thereof, we think it clear that the jury properly convicted defendant of the aggravated battery counts. With respect to the initial stabbing outside the abandoned building, the jury could reasonably have rejected defendant’s testimony that he did not stab Redmond prior to being struck with the board in view of the contrary testimony of Warfield that he saw defendant stab Redmond and observed a cut on his back and a tear in his shirt. That testimony was supported by Henry Baker, who stated that defendant hit Redmond in the back, and by Redmond’s testimony that after he turned away from defendant he felt something hit him in the back. The positive and credible testimony of even a single witness is sufficient to convict, even if contradicted by the accused. (People v. Mays (1979), 74 Ill. App. 3d 145, 392 N.E.2d 106.) Moreover, at the time of the first stabbing, Redmond was unarmed, had turned his back, and was walking away from defendant. Such conduct, in our view, presented no danger of imminent attack and did not justify defendant in believing that he would suffer imminent death or great bodily harm.

Furthermore, defendant’s claim that Redmond grabbed his collar and threatened to harm him before turning and walking away also was properly rejected, as threats alone do not justify the use of deadly force. (People v. Carbajal (1978), 67 Ill. App. 3d 236, 384 N.E.2d 824.) Neither did Redmond’s actions, indicating a hostile intent dangerous to defendant, make his belief reasonable. Thus, for example, in People v. Davis (1975), 33 Ill. App. 3d 105, 337 N.E.2d 256, the defendant and the victim had had an altercation following which the victim snatched a wig off defendant’s head and threatened to kill her. Then when he grabbed defendant’s collar and again threatened to kill her, she drew a gun and shot and killed him. Holding that the defendant had not acted in self-defense, the court stated that “[a] belief that the decedent, unarmed, might kill or greatly injure the defendant, while she had a loaded gun, was unreasonable.” (33 Ill. App. 3d 105, 110, 337 N.E.2d 256, 260.) In our view, it was equally unreasonable for defendant here, armed with a knife, to believe that the unarmed victim, who had turned his back and was walking away, posed an imminent threat of death or great bodily harm. Cf. People v. Duncan (1924), 315 Ill. 106, 145 N.E. 810 (actions of victim evidencing hostile intent included pounding on a bar, challenging defendant to fight, reaching into his pocket, taking out a knife, and lunging at defendant).

Defendant further asserts that his fear was reasonable because of Redmond’s statement that he would beat defendant with a 2-by-4 board as he had done to Freddie Watson. Redmond’s acts of violence, if known to defendant, may be considered on the question of the reasonable apprehension of danger. (See People v. Gall (1979), 79 Ill. App. 3d 823, 398 N.E.2d 1118.) Here, however, the jury rejected defendant’s assertion of self-defense and, with it, his claim that Redmond’s past acts of violence induced the reasonable belief in defendant that the use of force was necessary to prevent Redmond from killing or greatly injuring him. Finally, even if Redmond had been the initial aggressor, self-defense does not permit the defendant to attack an aggressor who, as here, has abandoned the fight and retreated. People v. Shappert (1975), 34 Ill. App. 3d 683, 340 N.E.2d 282.

It seems equally clear also that defendant’s actions at the street corner were not reasonably taken in self-defense. He testified that Redmond was hitting him with the remainder of the board during the stabbing. Against that account was the testimony of three eyewitnesses who testified that the board broke when Redmond first struck defendant and was then dropped. Under the circumstances here, the jury was free to believe the testimony of those eyewitnesses (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, and as the use of deadly force generally cannot be justified as self-defense once the aggressor has been disabled or disarmed (People v. Fields (1978), 65 Ill. App. 3d 278, 382 N.E.2d 337; People v. Pitchford (1976), 39 Ill. App. 3d 182, 350 N.E.2d 170), the jury could reasonably have believed that defendant’s actions were not necessary to prevent imminent death or great bodily harm to himself.

Finally, defendant’s own account of the incident, given at trial, is inconsistent with the theory of self-defense. He admitted, first of all, that he continued to stab Redmond after he had dropped the piece of wood until Warfield pulled him (defendant) away. Secondly, Larry Baker testified to a statement made later by defendant that he stabbed Redmond because “something came over me.” Defendant also apologized to Redmond, stating that he had been “messed up in the head.” Finally, Officer Crosson testified that defendant had initially told him he had stabbed Redmond in self-defense after Redmond had grabbed him around the neck. We find nothing in the evidence before us so palpably contrary to the jury’s verdict or so unsatisfactory or improbable as to raise a reasonable doubt of guilt.

Defendant also contends that a 2-by-4 board was erroneously admitted over his objection that a proper foundation had not been made. The State maintains there was a sufficient foundation for admission of the board as a demonstrative aid.

For the introduction of real evidence, it is essential that an adequate foundation be laid which generally requires that it be connected to the incident and the person involved. (People v. Rogers (1976), 42 Ill. App. 3d 499, 356 N.E.2d 413.) However, demonstrative evidence is also permissible for the purpose of rendering other testimony more comprehensible to the trier of fact. (People v. Fair (1977), 45 Ill. App. 3d 301, 359 N.E.2d 848.) As stated in McCormick, Evidence §212, at 528 (2d ed. 1972):

“Demonstrative evidence, however, is by no means limited to items which may properly be classed as ‘real’ or ‘original’ evidence. It is today increasingly common to encounter the offer of tangible items which are not contended themselves to have played any part in the history of the case, but which are instead tendered for the purpose of rendering other evidence more comprehensible to the trier of fact. * ° * If an article is offered for these purposes, rather than as real or original evidence, its specific identity or source is generally of no significance whatever. Instead, the theory justifying admission of these exhibits requires only that the item be sufficiently explanatory or illustrative of relevant testimony in the case to be of potential help to the trier of fact. Whether the admission of a particular exhibit will in fact be helpful, or will instead tend to confuse or mislead the trier, is a matter commonly viewed to be within the sound discretion of the trial court.”

In the instant case, defendant, during his cross-examination, stated that the 2-by-4 board in question was of the same dimensions as that used by Redmond and, in his brief here, defendant argues that because the board used by Redmond was rotten “it differed from the actual piece of wood used by complainant [Redmond]” and thus that it was improperly admitted.

We note, however, that the jury was adequately informed that the board used by Redmond was rotten and unavailable and that it was not the board offered by the State. In light thereof, we believe defendant’s testimony that the dimensions of the two boards were the same met the foundation requirement as to this illustrative type of demonstrative evidence. We consider that it was sufficiently illustrative of relevant testimony which could be a potential help to the jury — particularly with respect to whether defendant’s retaliation was necessary.

Moreover, assuming that the admission of the board in question was error, it was harmless beyond a reasonable doubt, as we are of the opinion that it could not have been a significant factor in the conviction, which we believe resulted from overwhelming evidence of defendant’s guilt.

For the reasons stated, the judgment appealed from is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.


author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GWENDOLYN FERGUSON, Defendant-Appellant.
    First District (5th Division)
    Nos. 79-1634, 80-1061 cons.
    Opinion filed December 18, 1981.

      James J. Doherty, Public Defender, of Chicago (Timothy P. O’Neill, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Adrienne Noble Nacev, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant, who was charged by information with the offenses of murder and armed violence, was convicted of murder and sentenced to 20 years imprisonment. Defendant later filed a post-conviction petition alleging that she suffered a denial of constitutional rights at her trial. The trial court denied this petition, which was filed under section 72 of the Civil Practice Act rather than the Post-Conviction Hearing Act. Both appeals are consolidated for our review.

Defendant contends that (1) she was not proved guilty of murder beyond a reasonable doubt; (2) the trial court erred in not suppressing her post-arrest statements; (3) the trial court improperly admitted certain evidence in violation of Supreme Court Rule 412(a)(ii); and (iv) the trial court incorrectly allowed the State to question defendant about, and comment on defendant’s failure to tell the police, before she was arrested and received her Miranda warnings, that she killed the deceased in self-defense.

On August 10,1978, Eliza Williams was shot three times and killed in her home. Her friend, Gwendolyn Ferguson, was charged with murder and armed violence. The relevant testimony at the suppression hearing and the trial follows.

I. Hearing to Suppress Defendant’s Pretrial Statements

Sergeant Timothy Tidmarsh stated that at approximately 10 p.m. on August 14, 1978, he responded to a call of a woman who wished to turn herself in to the police. He proceeded to a restaurant on South Halsted Street where he met defendant. In response to his questions, she said that she had called the police and was wanted for the murder of Eliza Williams. Tidmarsh read her the Miranda rights and asked if she wished to make a statement. She replied that she did not. At about this time, Officers Maxwell and Van Shaik arrived at the restaurant and took defendant into custody.

Officer Maxwell testified that when he arrived at the restaurant, he saw Tidmarsh speaking to defendant. He further testified that he remained at the restaurant for 5 to 10 minutes and then transported defendant to the Fifth District station. It took 5 to 10 minutes to make the trip. After his arrival, he wrote an arrest report. He remained at Fifth District for 15 minutes and then transported defendant to Area Two Homicide. This trip took approximately 15 minutes. His testimony indicated that approximately 50 minutes elapsed between his arrival at the restaurant with Van Shaik and their arrival at Area Two Homicide. Maxwell stated that he could not recall if defendant appeared to have been drinking that night but admitted that he had typed up an arrest report indicating that she had.

Investigator Dennis Banahan stated that at approximately 11 p.m. on August 14 he was in Area Two Homicide in an interview room with defendant. He spoke to the arresting officers Maxwell and Van Shaik, who advised him that defendant had said she was wanted for the murder of Eliza Williams but that she had then stated that “she didn’t want to make any further statement there.” Before speaking to defendant, Banahan telephoned Sergeant Tidmarsh, who told him that defendant did not want to make a statement in the restaurant.

Banahan further testified that he advised defendant that he was an investigator with the homicide section. He gave her the Miranda rights and explained them to her. Defendant said that she understood. He stated that she appeared sober and that the arresting officers did not tell him that she had been drinking. After asking her if she wanted to tell him about the murder of Eliza Williams and receiving an affirmative reply, he interviewed her for 15 to 25 minutes. During this time she gave an oral statement. He then left the room, returned with an Assistant State’s Attorney, and asked defendant if she would give a written statement. She refused to do so, stating that she thought it would be better to speak to a lawyer before giving a written statement. Banahan admitted that even after she requested counsel, he continued to question her concerning her oral statement.

After hearing the testimony and argument, the trial court held that the statements made to Tidmarsh in the restaurant were admissible because they were not the result of custodial interrogation. The court further ruled that the admissibility of the answers defendant gave to Banahan’s questions after she told Tidmarsh that she did not wish to make a statement depended on the “persistence of the questioning, perhaps use of subterfuge.” The court held:

“From all I can gather from the testimony as I heard it here, the defendant very readily answered the questions of Officer Banahan as to the oral statement, and there appeared to be no coercive methods used at all. Accordingly, the motion to suppress the statement will be denied.”

Additionally, the court stated that since the State had agreed not to use statements given after defendant expressed her desire to obtain a lawyer, no order would be entered concerning those statements.

II. The Trial

A. State’s Case in Chief

Michael Williams, the victim’s brother, testified that at 3:35 p.m. on August 10, he and his sister, Gail Campbell, went to visit Eliza Williams at her home on South Wallace Street where Eliza, defendant, and their respective children lived. No one answered the doorbell and the doors were locked. Michael then opened up the screen door through a slit in the screen and he and Gail entered the house. They went to Eliza’s bedroom and found her lying on the bed. He thought that she was asleep and called out her name. Receiving no response, he shook her arm and then noticed that there was blood on his hand. He told Gail to call the police. While she was calling the police, he looked under Eliza’s mattress for a gun that he knew she kept there. He also was aware that she kept an automatic gun in a dresser drawer. Finding no gun under the mattress, he looked under her bed and found it. He picked it up with a plastic bag, opened the chamber and noticed three empty cartridges. He then replaced the gun under the bed.

Michael and Gail then checked the house to see if anyone was there. They saw no one, but did find some coins lying on the floor near the back door. The police arrived approximately 10 to 15 minutes later.

Michael further testified that on August 14, defendant telephoned him and asked to speak to Eliza. When he told her that Eliza had been badly hurt, she replied that she was going to “catch the next bus and come over there.”

Defendant’s attorneys objected to this testimony, contending that the State had failed to include this oral statement in its answer to discovery and that the conversation was prejudicial to the defense theory of self-defense. Defense counsel moved for a mistrial. In denying this motion, the trial court held that the State was not required to furnish every oral statement made by defendant and, furthermore, that the defense objection was untimely because it was made after the witness had answered.

Michael concluded his testimony by stating that defendant and Eliza had lived together for 10 years and at the South Wallace premises for two years.

Gail Campbell, Eliza’s sister, testified to substantially the same circumstances as Michael. Additionally, she stated that on August 9 she saw Eliza with defendant’s medical eligibility card. Eliza told her that she would be returning the card to defendant the next day. On August 10, after Eliza’s death, Gail examined Eliza’s purse but was unable to locate the card.

Officer Edward Barkowski testified that when he arrived on the scene, he observed Eliza lying on the bed with bloodstains on her right side. He also saw a gun underneath the bed. When he inspected the body of the deceased, he saw apparent gunshot wounds in the right side of the jaw, the right outer arm, and the right side of her chest. Further, he observed hair curlers, cosmetic jars, several pins, a wallet, coins, a hairpin, and a utility bill on the bed.

Investigator Dennis Banahan testified that at approximately 4:10 p.m. on August 10, he and Investigator Thomas McKenna were assigned to the fatal shooting of Eliza Williams. When they arrived at the South Wallace address where the incident had occurred, they examined the scene and spoke to Eliza’s brother and sister. Banahan observed Eliza lying across the bed in the rear bedroom and noted two apparent gunshot wounds, one to the right cheek and the other through the right arm. He also noticed coins on the bed next to the victim and at the back door. He further testified that Michael had found, in addition to the gun under the bed, a .25-caliber automatic in a drawer on the right side of the dresser in the bedroom. It contained three live rounds in the magazine and one live round chambered.

Banahan further testified that on August 14, Michael informed him that defendant planned to come to the victim’s home. After receiving this information, he went to the South Wallace address. Defendant was not present because she had left to go to the store. While Banahan was waiting for her to return, his office informed him by telephone that a woman had turned herself in for the murder of Eliza Williams. He then proceeded to the Area Two Homicide office, arriving there about 11 p.m., and saw defendant with the arresting officers, Maxwell and Van Shaik. After interviewing the officers, he went into a room, introduced himself, and advised defendant of her constitutional rights. She agreed to answer questions.

According to Banahan, defendant initially stated that she had been having an ongoing argument with Eliza concerning sharing expenses for the house on South Wallace Street; that when she went to the South Wallace home she had not been there for three weeks; that she returned there to pick up from Eliza a medical eligibility card which she needed to obtain her public aid check; that after obtaining the check, she returned to the house and she and Eliza began to argue about sharing of expenses; that the argument turned into a physical altercation and Eliza reached under the mattress at the head of her bed, pulled out a gun; that a scuffle took place; that in the midst of the scuffle at the head of the bed, Eliza was shot.

Banahan further testified that when he described the gunshots and pointed out that the position of the body was inconsistent with her account of the incident, defendant stated: “F_it, there’s no use lying. I knew Eliza kept a gun under the mattress and I grabbed the gun while she was putting rollers in her hair and shot her.” She also stated that she threw the gun on the bed but it hit the wall and fell under the bed. Further, she stated that she took some change and dropped some of it on the floor on the way out.

Banahan testified that his initial conversation with defendant lasted approximately 20 to 25 minutes. On cross-examination, he stated that at about 11:50 p.m. he obtained an Assistant State’s Attorney, who spoke to defendant. At that time, she declined to make a statement and the Assistant State’s Attorney ceased questioning her. Banahan, however, continued asking her questions to complete the statement. Further, he admitted that the autopsy found three gunshot wounds, even though he only saw two. Finally, Banahan admitted that the information he received regarding the original positions of the body and the .38-caliber gun came from Michael.

It was stipulated that if Doctor F. A. Malee, a pathologist with the Cook County medical examiner’s office, was called to testify he would state that he performed an autopsy on Eliza’s body which revealed three gunshot wounds. He could not determine the order in which they occurred. The stipulated testimony described the nature of the wounds and the direction the bullets had travelled. There was no blackening or speckling present on any of the wounds, which could indicate the shooting had not occurred at very close range.

The State rested. Defendant’s motion for a directed verdict was denied.

B. Defense’s Case

Officer Robert Maxwell reiterated his testimony given at the Motion to Suppress hearing that the arrest report he prepared revealed that defendant had been drinking on August 14.

Defendant testified that she first met Eliza in high school in Orange, Texas, and that they had been close friends since that time. In 1967, after they both graduated, Eliza left Orange and moved to Germany with her husband. Eliza wrote her in 1968, stating that she was alone and pregnant, and asked her to come to Chicago to help her. Defendant moved to Chicago and lived with her until her death.

One evening in the spring of 1974, defendant saw Eliza with her clothes splattered with blood. When she asked what had happened, Eliza replied, “Nothing, but I had to kill somebody.” Defendant knew that Eliza owned three weapons — a .38 Smith & Wesson, a .25 automatic, and one other gun. She further testified that in February of 1978, when she was confined to the apartment with a broken foot, Eliza came into her bedroom carrying a .38 and asked her if she had called anyone to come over, since the doorbell was ringing. Eliza stated that she would take care of the matter, and left. Later that evening, defendant received a telephone call from Theresa Dammons, a former co-worker, who said that while she was trying to bring her a meal earlier in the day, she had been met at the house by Eliza, who pulled a gun and threatened to set two dogs on her.

Defendant further testified that prior to August 10, she had been living away from her apartment in Eliza’s house for three weeks but on August 10, 1978, she returned to the house to get her medical eligibility card from Eliza. Eliza handed her the card through a crack in the door and she left to cash a check. After she returned she told Eliza that she had decided to permanently move to a new apartment because she felt that she had been “used and manipulated”. Eliza “went all off” and began hollering. Defendant walked away to get water.

Defendant further stated that when she turned around, Eliza was standing about eight feet away, pointing a gun at her and asking, “Why the hell you think I am using you?” The gun she held was the .38 caliber revolver found under the bed. Defendant knew that when Eliza became upset she “meant business” and she felt Eliza was going to shoot her. When she thought the gun was being cocked, she jumped toward Eliza. They began to struggle and Eliza kept threatening to kill her. As they struggled in the bedroom, near the door, the gun went off and dropped to the floor. When Eliza bent to pick up the gun, defendant kicked it away. Eliza then moved to the bed, lifted up the mattress and then turned to the dresser, still threatening defendant. At this point, Eliza was standing between the bed and dresser.

Defendant further testified that she was aware that Eliza often kept a gun in the dresser and also knew that Eliza owned three guns. Therefore, when she saw Eliza push up the mattress with her right hand and then bend toward the dresser drawer, defendant picked the gun off the floor and fired twice. Eliza then sat on the edge of the bed with her hands on her head and began to fall back. Defendant threw the gun and left through the back door.

Defendant stated that four days later she returned to Eliza’s home and talked to Eliza’s sister, Cynthia, who told her that she was wanted for Eliza’s murder. She then went to a tavern and had some drinks. Later, she went to a restaurant, where she called the police and waited for them to come. When Sergeant Tidmarsh arrived at the restaurant, she told him that she heard that the police were looking for her for murder but she wanted to explain it was not actually murder. She further informed him that she wanted to talk to a lawyer or someone in authority. Later she was taken to Area Two Homicide, where she saw Investigator Banahan and again asked for a lawyer. He kept insisting that she could talk to him and he then read something to her out of a pamphlet. She told him about the argument — that Eliza pulled a gun on her, a struggle occurred and the gun went off and that she picked up the gun. Then, she stopped talking to him. She denied saying “F_it, there is no use lying.”

Theresa Dammons, a friend and co-worker of defendant, testified in corroboration of defendant’s statement regarding the February 1978 incident. She stated that when she went to defendant’s home to bring her food, Eliza became angry, ordered her to leave, and threatened her with a gun and several dogs.

C. State’s Rebuttal

Michael Williams testified that he never saw his sister shoot anyone and he saw no signs of a scuffle at Eliza’s house on August 10.

The jury found defendant guilty of murder; she appeals.

Opinion

I

Initially, we find it appropriate to examine defendant’s contention that the trial court erred in declining to suppress her post-arrest statements. She asserts that her statements to Sergeant Tidmarsh and Investigator Banahan were not voluntary. In support of this conclusion she urges that she was deprived of her right to cut off questioning and remain silent because Investigator Banahan interrogated her about the murder after she told Sergeant Tidmarsh that she “didn’t want to make a statement.” We reject her argument that Tidmarsh’s or Banahan’s questioning was improper and that her answers should have been suppressed.

The admissibility of custodial statements made after an individual has decided to remain silent depends on whether his “ ‘right to cut off questioning’ ” has been “ ‘scrupulously honored.’ ” (Michigan v. Mosley (1975), 423 U.S. 96, 104, 46 L. Ed. 2d 313, 321, 96 S. Ct. 321, 326.) In Mosley, defendant was arrested for robbery. At the police station, he was given Miranda warnings and questioned. When defendant invoked his right of silence, interrogation stopped. Two hours later, another officer questioned defendant about an unrelated robbery-murder, and defendant implicated himself in the murder. The court allowed the statement into evidence, and defendant was convicted of murder. In ruling that the admission of the statement did not violate defendant’s right to cut off questioning, the Supreme Court interpreted a holding of Miranda v. Arizona (1966), 384 U.S. 436, 473-74,16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627-28, which stated as follows:

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.”

The Mosley court ruled that interpreting this passage literally “would lead to absurd and unintended results.” (423 U.S. 96, 102, 46 L. Ed. 2d 313, 320, 96 S. Ct. 321, 326.) On one side, to allow continued interrogation after a momentary cessation would frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the suspect’s will. Conversely, a “blanket prohibition” from further interrogation, regardless of circumstances, would unduly impede police investigative activity. Consequently, the court concluded that its determination should focus on whether defendant’s right to cut off questioning was scrupulously honored. 423 U.S. 96, 102-03, 46 L. Ed. 2d 313, 320-21, 96 S. Ct. 321, 326.

The three circumstances that the Mosley court emphasized in determining that defendant’s right to silence was scrupulously honored were the passage of a significant time between the sessions of questioning (two hours), provision of a fresh set of Miranda warnings, and renewed questioning by a different officer as to a completely different offense.

In People v. Faison (1979), 78 Ill. App. 3d 911, 397 N.E.2d 1233, factors in determining whether a defendant’s right to remain silent was scrupulously honored were found to be whether there was a significant period of time (during which there was a complete cessation of questioning) between the defendant’s exercise of his right to remain silent and the reinterrogation; whether the reinterrogation was preceded by a fresh set of Miranda warnings; whether a different officer conducted the second questioning; and whether a different subject matter was involved in the second questioning. Additionally, in People v. Savory (1980), 82 Ill. App. 3d 767, 403 N.E.2d 118, this court found, as another factor tending to show that defendant’s right to remain silent was not violated by the resumption of interrogation, the presence of something in the record which would justify or explain defendant’s reconsideration of his decision to remain silent.

Applying these factors, we find it apparent that defendant’s right to remain silent was scrupulously honored. Defendant turned herself in to the police at the restaurant because she knew she was wanted for the murder of Eliza Williams. At this time, she was not in custody. Then, Sergeant Tidmarsh advised her of her Miranda rights. At approximately the time Tidmarsh finished reading defendant her rights, the arresting officers arrived at the restaurant. She then stated she did not want to make a statement. Sergeant Tidmarsh told Investigator Banahan that when she declined to make a statement at the restaurant, she had mentioned “something about people around.” The arresting officers told Banahan that after defendant had stated that she was wanted for the murder of Eliza Williams, she also remarked that she did not want to make any further statement there.

At Area Two Homicide, after Banahan spoke to the arresting officers and Sergeant Tidmarsh, he identified himself as an investigator to defendant, advised her of her Miranda rights, and explained them to her. She stated that she understood and then gave an oral statement incriminating herself in the killing of Eliza. Defendant appeared composed, and neither Tidmarsh nor Banahan noticed any indication that she had been drinking or was intoxicated before she talked to the police. After she gave the oral statement, Banahan asked her if she would give a written statement. She declined and requested a lawyer. Banahan asked her at least three more questions, the answers to which were not admitted into evidence. The trial court found that the admissibility of defendant’s statements following her refusal to answer further questions turned on “the persistence of the questioning, perhaps the use of subterfuge.” The court ruled that defendant readily answered the questions of Banahan and there appeared to be no coercive methods used.

The pending case fits well within the Mosley standards. After defendant first asserted her right to remain silent, there was a complete cessation of questioning for approximately one hour. Further, the reinterrogation was preceded by recitation of a complete set of Miranda warnings. Additionally, the reinterrogation was not performed by the same officer who conducted the previous interrogation. Although defendant was questioned about the same offense, this factor has not been deemed pivotal. (See People v. Lakes (1978), 60 Ill. App. 3d 271, 376 N.E.2d 730; People v. Colley (1980), 83 Ill. App. 3d 834, 404 N.E.2d 378.) Moreover, “[t]he fact that a defendant has exercised his right to remain silent by declining a request that he make a statement does not permanently preclude all future inquiries by officers to determine whether he has changed his mind. [Citations.]” People v. Gibson (1977), 55 Ill. App. 3d 929, 935, 371 N.E.2d 341, 345.

In this case, both Sergeant Tidmarsh and Investigator Banahan questioned defendant. Banahan’s interrogation occurred approximately one hour after defendant told Tidmarsh at the restaurant that she did not wish to make a statement. Thus, a significant passage of time between questioning occurred, enabling defendant to make an informed and intelligent assessment of her interests as envisioned by Mosley. (See Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321.) Furthermore, there is no evidence here that her incriminating statement was less than voluntary due to persistent and repeated efforts on the part of police officers to wear down her resistance and make her change her mind. (Compare United States ex rel. Doss v. Bensinger (7th Cir. 1972), 463 F.2d 576, cert. denied (1972), 409 U.S. 932, 34 L. Ed. 2d 186, 93 S. Ct. 239; People v. Gibson (1977), 55 Ill. App. 3d 929, 371 N.E.2d 341.) The motion to suppress defendant’s post-arrest statements was properly denied.

II

Defendant contends that the court erred in admitting testimony as to oral statements she made to Michael Williams because the prosecution did not disclose such statements on discovery. We disagree. Counsel for defendant had filed a motion for pretrial discovery requesting written or oral statements made by defendant as well as a list of witnesses to the statement.

Supreme Court Rule 412(a) (ii) requires the prosecution, upon written motion of defense counsel, to disclose any written or recorded statements and the substance of any oral statements made by the accused. (Ill. Rev. Stat. 1977, ch. 110A, par. 412(a)(ii).) The supreme court promulgated this rule to afford the accused protection against surprise, unfairness and inadequate preparation. (People v. Shegog (1976), 37 Ill. App. 3d 615, 346 N.E.2d 208; People v. Boucher (1978), 62 Ill. App. 3d 436, 379 N.E.2d 339.) Compliance with the rule is mandatory (People v. Musgray (1976), 37 Ill. App. 3d 48, 344 N.E.2d 708), but noncompliance with discovery requirements does not require reversal absent a showing of prejudice. (People v. Steel (1972), 52 Ill. 2d 442, 288 N.E.2d 355.) Moreover, the trial court has discretion in allowing introduction of testimony not disclosed where there is no showing of surprise or prejudice; further, a defendant cannot complain when he fails to request a continuance for investigation of the statement, and instead proceeds with trial. People v. Callaham (1978), 60 Ill. App. 3d 1020, 1027, 377 N.E.2d 171, 178.

In the pending case, Michael Williams testified on direct examination without objection that on August 14 he received a telephone call from defendant in which she asked to speak to Eliza Williams. When he replied that she had been badly hurt, defendant stated that she would come over immediately. After this testimony, defense counsel requested and was granted a sidebar conference during which he pointed out that the prosecution had violated the discovery rules. He demanded a mistrial. The court denied the motion and defense counsel then requested that the prosecution be precluded from further use of the statement. This was denied. However, defense counsel did not make timely objection to the testimony, and failed to request a continuance but proceeded with the trial. Therefore, defendant has waived her objection for the purpose of review. (People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227; People v. Callaham (1978), 60 Ill. App. 3d 1020, 1027, 377 N.E.2d 171, 178.) Furthermore, even assuming no waiver, the substance of the telephone conversation was not potentially exculpatory evidence (see, e.g., People v. Nichols (1976), 63 Ill. 2d 443, 349 N.E.2d 40), nor does the undisclosed statement contradict defendant’s testimony (see, e.g., People v. Szabo (1977), 55 Ill. App. 3d 866, 371 N.E.2d 117). Nor does it appear that the testimony about the telephone conversation surprised defendant inasmuch as she testified on cross-examination that she telephoned Eliza’s brother and asked where Eliza was. Finally, the statement in no way refutes defendant’s testimony that she acted in self-defense and thus did not prejudice her.

Additionally, the plain error exception (73 Ill. 2d R. 615(a)) should not be applied here. Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed. (See People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739, 743.) The evidence of guilt is overwhelming. Under no circumstances can we say that the verdict in this case would have been otherwise if the statement complained of had not been made.

Ill

Defendant contends that the State failed to prove her guilty beyond a reasonable doubt because the evidence showed that she acted either in self-defense or the shooting was provoked either by “serious provocation” or committed with an unreasonable belief that deadly force was necessary to prevent imminent great bodily harm. Defendant urges that her conviction for murder be reversed or reduced to voluntary manslaughter. Again, we cannot agree.

Section 7 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 7 — 1) states, in pertinent part, as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

In addition, if defendant is the aggressor, the use of deadly force is justified only if:

“(1) such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm, and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(2) in good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.” (Ill. Rev. Stat. 1977, ch. 38, pars. 7 — 4(c)(1) and 7 — 4(c)(2).)

Thus, whether defendant acted in self-defense was a question of fact to be determined by the jury, with the burden of proof upon the State. (People v. Woods (1980), 81 Ill. 2d 537, 410 N.E.2d 866; People v. Price (1979), 79 Ill. App. 3d 1112, 1117, 398 N.E.2d 1158.) It is the function of the triers of fact to determine the credibility of the witnesses and the weight to be given their testimony and to resolve conflicts in the testimony. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.) The jurors could refuse to accept defendant’s testimony if they found that she was not credible. Such a decision could have been based on defendant’s testimony that she shot Eliza Williams in self-defense, which did not square with the physical evidence and other testimony which was inconsistent with her statements to the police. If the jury did not believe defendant, then her testimony standing alone would not raise a reasonable doubt of guilt. People v. Lynch (1976), 43 Ill. App. 3d 1039, 1042-43, 358 N.E.2d 17, 19.

Defendant testified in support of her theory of reasonable or unreasonable belief in the need for self-defense, but her defense depended on her credibility. Her assertion at trial was that she and Eliza argued; that Eliza drew a gun on her; that she moved toward the victim, a struggle ensued, the gun went off in the struggle and the gun dropped; that she grabbed the gun and shot Eliza twice; that Eliza sat on the edge of the bed and put her hands on her head; that defendant then threw the gun and walked out the back door; and that four days later she contacted Eliza’s brother and then surrendered to the police.

This theory was refuted by the following evidence: (1) Defendant’s prior statement to police, given after Investigator Banahan pointed out that her initial exculpatory account was inconsistent with Eliza’s physical condition, in which defendant admitted that she knew that Eliza kept a gun under the mattress and that she grabbed the gun while Eliza was putting rollers in her hair and shot her; (2) Eliza was unarmed when defendant shot her three times; (3) Eliza’s brother and sister found her dead, lying on her bed face down on her left side and the house was neat and orderly; (4) the house was undisturbed and there was no sign of a struggle defendant stated occurred; (5) Eliza suffered three gunshot wounds and there was no blackening or speckling present on any of the wounds indicating that the shots were not fired at very close range, which is consistent with defendant’s statement to Investigator Banahan that she shot Eliza from the head of the bed while Eliza was putting curlers in her hair at the foot of the bed; (6) the bullets all entered Eliza’s body from front to back, which is inconsistent with defendant’s testimony that Eliza was reaching toward her dresser at the foot of her bed when she was killed, because if she had been reaching toward her dresser when she was shot the gunshots would have entered from back to front; (7) defendant’s testimony that she left Eliza sitting on her bed with her hands on her head is inconsistent with the circumstance that Eliza was found lying prone and face down on her bed; (8) despite evidence offered by defendant that Eliza had been violent four years before and also approximately six months before she killed her, defendant never demonstrated any fear of Eliza because of the violence and continued to live with her after both incidents; and (9) although motive is not a requirement defendant had a motive to kill Eliza in that she went to the apartment to tell Eliza she was moving out and said “she couldn’t bear it anymore” and had been “used and manipulated” by the victim. Further, evidence of flight was competent circumstantial evidence that tended to refute her theory. (People v. Price (1979), 79 Ill. App. 3d 1112, 398 N.E.2d 1158.) The jury, presented with this conflicting evidence, rejected defendant’s testimony that she justifiably acted in self-defense or that she had an unreasonable belief that her use of force was necessary. The murder conviction is supported by the evidence adduced at trial and the judgment should be affirmed.

Further, no instruction based on a theory of “provocation manslaughter” should have been submitted to the jury because the record discloses no credible evidence of struggle or serious provocation that triggered the killing. Defendant’s reliance on People v. Williams (1965), 56 Ill. App. 2d 159, 205 N.E.2d 749, and People v. Hudson (1979), 71 Ill. App. 3d 504, 390 N.E.2d 5, is misplaced. Both cases are distinguishable on their facts. In Williams, the court found that defendant taxi-driver was justified in using deadly force in self-defense against the deceased who was a member of a youth gang that had threatened force. The deceased had thrown a cement block and brick which damaged the taxi, causing the defendant to fear for his life. In Hudson, defendant killed deceased with a kitchen knife he found near the sink during a fight in which deceased was prevailing. When the fight was over defendant waited for the police. Also, there were witnesses to collaborate his story. By contrast, in the pending case, defendant’s account of a struggle with Eliza was contradicted by the undisturbed condition of the apartment, the position of the wounds on Eliza’s body, defendant’s statement to Investigator Banahan, her knowledge of where Eliza kept her guns and her flight from the scene of the killing.

IV

Approximately 10 months after defendant was convicted of murder and sentenced to a term of 20 years, defense counsel filed a petition seeking relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). The petition raises these issues: (1) whether the court erred in dismissing the petition without a hearing and not construing the petition filed under section 72 as one filed under the Post-Conviction Hearing Act; and (2) whether the petition presented a constitutional question.

The testimony adduced at petitioner’s trial has herein been summarized. Only insofar as it is pertinent to the post-conviction appeal, will testimony again be summarized and supplemented.

At trial, defendant, in testifying as to her state of mind at the time she shot and killed Eliza Williams, testified to an incident concerning Eliza Williams’ violent nature. She stated that several years ago she was sitting in her apartment when Eliza came in with blood splattered on her clothes. When she asked Eliza what had happened, Eliza answered, “I had to kill somebody.” She also testified that Eliza may have said that her brother, Michael, was present at the shooting. At the time, she did not call the police. In rebuttal, Michael testified that he never saw his sister shoot anyone. During closing argument, the prosecution stressed that Eliza was a peaceful person. Additionally, at trial the evidence disclosed that defendant told police she killed Eliza while Eliza was putting rollers in her hair. Eliza suffered three gunshot wounds, there was no blackening or speckling on any of the wounds, and she was found dead on her bed. Furthermore, defendant and Eliza had been friends since high school and for ten years prior to Eliza’s death had lived together. After Eliza told her she had killed someone, defendant continued to live with Eliza. Moreover, Eliza had never pulled a gun on defendant.

Defense counsel’s affidavit filed in support of the section 72 petition stated that prior to trial defendant told her that Eliza had shot a man named “Abdullah” and that “Abdullah” hung out in a pool hall on the corner of 63d and Langley. Trial began on May 7, 1979. On March 21, defense counsel had gone to the pool hall and learned that “Abdullah” was Reginald Dunne. She left her business card at the pool hall for Dunne. Dunne called defense counsel on April 19, and she talked to him on April 20. He related the matters contained in his affidavit attached to the section 72 petition, alleging that Eliza had deliberately shot him with a pistol and that the shooting was motivated by the death of Eliza’s brother, Rickey. Defense counsel was unable to contact Dunne during defendant’s trial, but no request for a continuance was made in order to secure Dunne’s presence at trial and no offer of proof was made concerning Dunne’s testimony. The section 72 petition requested a new trial. After argument, the petition was denied.

In denying the petition, the court found that although defendant’s testimony as to her knowledge of the shooting incident between Eliza and Dunne was admissible to show her intent and thus whether she acted in self-defense, Dunne’s independent separate act testimony would not have been admissible. Further, the court ruled the proffered testimony to be of a cumulative nature.

The prosecution argues that newly discovered evidence may not be considered as grounds in support of a section 72 petition. (People v. Hammers (1977), 48 Ill. App. 3d 1023, 363 N.E.2d 914; People v. Colletti (1971), 48 Ill. 2d 135, 268 N.E.2d 397.) Defendant concedes this argument and agrees that relief in a criminal case on the basis of newly discovered evidence can only be obtained if the issue is raised in a motion for new trial filed within 30 days after conviction. (Ill. Rev. Stat. 1977, ch. 38, par. 116 — 1(b); People v. Colletti.) However, defendant posits that her “newly discovered” evidence raises a doubt of her guilt and in consequence raises a constitutional issue presentable in a post-conviction petition. She cites People v. Slaughter (1968), 39 Ill. 2d 278, 235 N.E.2d 566, and People ex rel. Palmer v. Twomey (1973), 53 Ill. 2d 479, 292 N.E.2d 379. In support of her position, maintaining that in the interests of justice her section 72 petition should have been construed as a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1 et seq.). These cases, however, are inapposite to the case at bar. In Slaughter and Twomey inartfully drawn pro se petitions were treated as petitions under the Post-Conviction Hearing Act. By contrast, in the present case, the petition was filed by defendant’s appointed trial counsel. Further, the evidence was not “newly discovered” since prior to trial defendant’s attorney had learned “Abdullah’s” name was Reginald Dunne, had contacted him and obtained the facts that are the basis for post-conviction relief. Moreover, even if defendant’s petition was considered as one filed under the Post-Conviction Hearing Act, the standards of that act have not been met. Her contention of “newly discovered” evidence is not of constitutional dimension. (People v. Hammers (1977), 48 Ill. App. 3d 1023, 1027, 363 N.E.2d 914, 917.) Newly discovered evidence can only be raised in a motion for new trial filed within 30 days of conviction and not in section 72 or post-conviction petitions. There are two exceptions to this rule not present in the pending case: (1) when the prosecution prevented defendant from discovering the evidence during trial; and (2) when the sole prosecution witness who could establish defendant’s criminal participation recants his testimony. (People v. Moore (1975), 60 Ill. 2d 379, 384, 327 N.E.2d 324, 327; People v. Bland (1978), 67 Ill. App. 3d 716, 384 N.E.2d 1380, 1386; People v. Hammers (1977), 48 Ill. App. 3d 1023, 1028, 363 N.E.2d 914, 917; People v. Oswalt (1975), 26 Ill. App. 3d 224, 227, 324 N.E.2d 666.) Even if new evidence is considered in a post-conviction petition, defendant is not entitled to relief where there was other ample evidence which established defendant’s guilt beyond a reasonable doubt. (People v. Moore (1975), 60 Ill. 2d 379, 386, 327 N.E.2d 324, 328.) The “new” evidence alleged in the petition in this case raised no constitutional question since consideration of the evidence would not have raised a doubt of defendant’s guilt. Furthermore, the “new” evidence was merely cumulative because defendant had already testified concerning her knowledge of the incident.

In addition, the prosecution maintains that the court properly found that the “new” evidence defendant sought to introduce would have been inadmissible. We agree that the court would have been correct in not admitting this evidence. Defendant in her petition sought to introduce testimony by Dunne concerning an act of violence by Eliza Williams to establish defendant’s state of mind at the time she killed Eliza. Her knowledge of specific acts of violence by Eliza was admissible to show her state of mind (People v. Gall (1979), 79 Ill. App. 3d 823, 828, 398 N.E.2d 1118, 1121), and she testified to this shooting incident and another incident of violence concerning Eliza. However, since the question involved was defendant’s state of mind, independent third-party testimony by Dunne about whether an event occurred several years before is remote and irrelevant and could be properly excluded. 15 Am. Jur. 2d Proof of Facts 183 (1978); People v. Hill (1968), 97 Ill. App. 2d 385, 240 N.E.2d 373.

Defendant’s reliance on Jackson v. Virginia (1979), 443 U.S. 307, 316, 61 L. Ed. 2d 560, 571-72, 99 S. Ct. 2781, 2788, is not justified because it does not dictate a different result in this case. The Jackson court established the standard of review in Federal habeas corpus proceedings. The question in Jackson was whether defendant initially had been proved guilty beyond a reasonable doubt. The court held, after viewing the evidence in a light most favorable to the prosecution, that a rational factfinder could readily have found petitioner guilty of murder beyond a reasonable doubt under Virginia law. Jackson did not involve new evidence or the right of a defendant, who is afforded one review as to the sufficiency of the evidence, to reopen the case and redetermine guilt or innocence upon the alleged discovery of new evidence. In the present case, when the evidence is viewed in the light most favorable to the prosecution, a rational trier of fact could have found defendant guilty of murder beyond a reasonable doubt. Likewise, In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (which held that proof beyond a reasonable doubt standard is mandated by due process) gives no support to defendant’s contention that she was deprived of a constitutional right and consequently is entitled to post-conviction relief. We have previously concluded that the prosecution’s evidence established defendant’s guilt of murder beyond a reasonable doubt.

We therefore hold that the trial court did not err in failing to treat the section 72 petition as a post-conviction petition because defendant’s allegation of newly discovered evidence does not support a post-conviction petition, the evidence was not newly discovered, was cumulative, and raised no constitutional question. Accordingly, the judgment of the court dismissing the petition without an evidentiary hearing is affirmed.

In summary, for the aforementioned reasons, the judgments of the court in both the direct appeal, No. 79-1634, and in the appeal of the denial of the section 72 petition, No. 80-1061, are affirmed.

Affirmed.

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

       Defendant’s counsel, during oral argument, waived this last contention in light of Jenkins v. Anderson (1980), 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TAKSIM NEZIROSKI, Defendant-Appellee.
    First District (5th Division)
    No. 80-1815
    Opinion filed December 18, 1981.

      Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Iris E. Sholder, and Gael McCaughey-O’Brien, Assistant State’s Attorneys, of counsel), for the People.
    Sheldon Banks, of Chicago (Shelvin Singer, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant Taksim Neziroski was charged with burglary pursuant to section 19 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1). Defendant’s fingerprints, taken by police officers incident to defendant’s prior unlawful arrest for another crime, were used to connect him with the burglary scene. The circuit court suppressed the fingerprints. The State appeals the order suppressing these fingerprints from evidence. We affirm.

On February 18, 1979, defendant was arrested in connection with a burglary at the Four Seasons restaurant. The arresting officer had been engaged in the investigation of approximately 17 restaurant burglaries and armed robberies which had occurred in north suburban Cook County.

Immediately following his arrest, the defendant was taken into custody, photographed and fingerprinted. Defendant was subsequently indicted for burglary.

On January 22, 1980, the defendant appeared before the Honorable Alan Lane and moved to quash his arrest and to suppress evidence of identification. The motion to quash the arrest and suppress the evidence was granted upon the ground that no probable cause existed for the arrest.

The fingerprints taken at the time of defendant’s arrest were compared, at a time subsequent to the indictment, to latent fingerprints obtained from the scene of another restaurant burglary, the Noble House. These prints matched, and defendant was charged by information with burglary of this restaurant.

On May 21, 1980, defendant appeared before the Honorable Jerome T. Burke and moved that fingerprints and photographs taken at the time of his arrest on February 18, 1979, be suppressed from evidence. Judge Burke reserved ruling on the photographs and granted the motion to suppress the fingerprints on the grounds of Judge Lane’s prior ruling and under the exclusionary rule.

The State appeals from the order of May 21, 1980, suppressing the defendant’s fingerprints from evidence.

Opinion

In his brief defendant initially challenges this court’s jurisdiction to consider this appeal. Defendant argues that the State has failed to perfect this appeal in that (1) notice of appeal was not timely filed, and (2) the prosecutor failed to certify to the trial court that the suppression substantially impaired the State’s ability to prosecute the case as required by People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501. The State has filed no reply brief addressing these issues.

Supreme Court Rule 606 requires that notice of appeal in criminal cases must be filed with the clerk of the circuit court within 30 days from the entry of the judgment or order appealed from. (73 Ill. 2d R. 606.) In the instant case defendant’s motion to suppress the fingerprint evidence was granted and the order of suppression entered on May 21, 1980. The State filed its notice of appeal of this order on June 13,1980. Accordingly, the State’s appeal in this case was timely filed.

Supreme Court Rule 604(a)(1) governs when the State may prosecute interlocutory appeals in criminal cases. (73 Ill. 2d R. 604(a)(1).) In Young, our supreme court held that this rule requires that in order for the State to perfect an interlocutory appeal of a pretrial suppression order, the prosecutor must certify to the trial court that the suppression substantially impairs the State’s ability to prosecute the case. The Young decision, however, waived this requirement for cases in the appellate process as of October 17,1980. Since notice of appeal in the instant case was filed prior to that date, the certification requirement is waived. Accordingly, the State has properly perfected this appeal and this court has jurisdiction to review the May 21, 1980, order of suppression. The fact that the State failed to appeal the January 22,1980, order in another case does not affect the appealability of the suppression order in this case.

We will now consider the State’s contention that the trial court erred in suppressing the fingerprint evidence in the case before us. It is the State’s position that the fingerprints were obtained in accordance with standard police procedures and not by an exploitation of the earlier illegal arrest, and were therefore admissible as identification in the subsequent arrest. People v. Pettis (1973), 12 Ill. App. 3d 123, 298 N.E.2d 372.

The defendant contends, however, that Judge Burke was barred from considering the matter of suppression of the fingerprints because Judge Lane’s ruling in the earlier case effectively suppressed them from evidence in “all cases.” In effect, defendant raises the doctrine of collateral estoppel as a bar to the relitigation of the order suppressing identification evidence rendered in the first case. The State does not address this argument by way of reply.

The Code of Criminal Procedure provides that if a motion to suppress evidence is granted, “the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant at any trial.” (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(b).) As a general rule, an order suppressing evidence in a criminal proceeding is an appealable order. If it is not appealed, the doctrine of collateral estoppel bars relitigation before another judge in the same or another trial absent a showing of peculiar circumstances or some additional evidence to be presented. See generally People v. Armstrong (1973), 56 Ill. 2d 159, 306 N.E.2d 14; City of Rolling Meadows v. Kohlberg (1980), 83 Ill. App. 3d 10, 403 N.E.2d 1040; People v. Mertens (1979), 77 Ill. App. 3d 791, 396 N.E.2d 595.

We have reviewed the record of the earlier suppression hearing and have concluded that Judge Lane’s order suppressing evidence of identification of defendant was broad enough to include the fingerprints obtained pursuant to defendant’s unlawful arrest. Since this order effectively suppressed the fingerprint evidence at the earlier hearing, we hold that under the doctrine of collateral estoppel the fingerprints were not admissible against defendant at a subsequent trial on another charge. Further, we note that at the May 21,1980, hearing, the State presented no additional evidence or peculiar circumstances to attenuate the operation of the collateral estoppel doctrine.

Accordingly, the trial court did not err in granting defendant’s motion to suppress the fingerprint evidence from the subsequent trial.

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

Order affirmed.

SULLIVAN, P. J., and WILSON, J., concur.


author: JUSTICE O’CONNOR

text:
    THE VILLAGE OF EVERGREEN PARK, Plaintiff-Appellee, v. WILLIAM RUSSELL, Defendant-Appellant.
    First District (1st Division)
    No. 80-2060
    Opinion filed December 21, 1981.

      Halprin, .Halprin & Cantor, Ltd., of Chicago, for appellant.
    Vincent Cainkar, of Louis F. Cainkar, Ltd., of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant William Russell was found guilty in a bench trial of two parking violations in the Village of Evergreen Park. He appeals, contending that (1) the ordinance under which he was convicted was unconstitutional and (2) the village failed to prove a prima facie case. We affirm.

On March 2, 1980, Village police officer Peter DeLegge issued a parking ticket complaint to William Russell, of 2618 West 96th Place, Evergreen Park, for illegally parking after 10 p.m. on the street at that address a recreational vehicle, license number 84129RV, in violation of section 20 — 137 of the local ordinance. On April 30, 1980, he issued another complaint to defendant of that address for parking in the 2600 block of 96th Place a prohibited vehicle after 10 p.m., in violation of the same section of the ordinance.

In court, defendant moved in writing that the court declare unconstitutional Village Ordinance 24 — 1979, of which section 20 — 137 was a part, and that the court stay enforcement of the ordinance until the determination of its constitutionality. Both motions were denied.

The Village Ordinance provides:

“Section 20 — 137. Parking Prohibitions and Length of Time. It shall be unlawful to park any pickup camper with caps that exceed 6" above the cab roof, vans that exceed manufacturers’ height, motor homes, mobile homes, trailer, boat trailers, tractors, buses, trucks whose gross carrying weight exceed 3/4 ton and all vehicles of the 1st or 2nd division as defined by Illinois Revised Statutes, Chapter 95% commonly identified as the ‘Vehicle Code’ when such vehicles are equipped with an attached snowplow, on any street, alley or parkway between the hours of 10:00 p.m. and 7:00 a.m. These regulations shall be in addition to any further enumerated restrictions on parking as identified in this article of this chapter.
It shall be understood, however, that permission may be granted for a maximum 48 hour stay of one unoccupied mobile home or motor home per family which may be parked on a residential street provided said permit shall be obtained for the said stay by the owner thereof from the Police Department in advance of the parking of said mobile home or motor home and that said permit shall be displayed in the front windshield of said mobile home or motor home. In addition thereto, permission may be granted for the parking of said motor home or mobile home no more than twice in any 12 month period.”

At the trial, Officer DeLegge testified that he issued the two parking tickets. He did not state what subsection, if any, the vehicle had violated. Over objection by defendant, he testified that he called Central Records to find out who was the owner of the recreational vehicle with the license number stated on the tickets and was informed it was the Russells. The officer did not testify that he saw either Mr. or Mrs. Russell park the vehicle nor did he present a certified copy from the Secretary of State’s office as to the ownership of the vehicle with that license number.

Defendant rested after his motion for a directed finding was denied. Defendant was fined $25 and $10 court costs on the first ticket and $10 and no court costs on the second. The court denied defendant’s motion for a new trial which reiterated the points raised in his motion for a directed finding: (1) the parking tickets failed to apprise defendant of what, if any, aspect of the ordinance was violated, (2) the ordinance was unconstitutional and was vague, and (3) the village failed to prove its cause of action.

Defendant’s claim of unconstitutionality makes even more pertinent today, with its proliferation of litigation, the observation made by the Supreme Court of Illinois 71 years ago in People v. Sayer (1910), 246 Ill. 382, 387, 92 N.E. 900:

“Finally, it is contended that the section is in conflict with the fourteenth amendment to the Federal constitution, which always appears at some stage of every case in which a party feels that he is hampered by the law in doing what he pleases, regardless of the rights of others, and, however it may tax patience, the argument must be considered.”

An ordinance banning overnight parking between 2:30 a.m. and 6 a.m. is a reasonable exercise of a municipality’s police power and is constitutional; it serves a public purpose. Village of Oak Park v. Flanagan (1975), 35 Ill. App. 3d 6, 341 N.E.2d 16.

Defendant’s argument that, because the ordinance is not divided into various subsections and classes, a parking ticket referring to merely section 20 — 137 is so vague that a defendant cannot prepare a defense is without merit. Defendant points to the fact that the State licenses recreational vehicles without differentiation between types. The Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95½, pars. 1-100 et seq.) defines a recreational vehicle (par. 1 — 169):

“§1 — 169. Recreational vehicle. Every camping trailer, motor home, mini motor home, travel trailer, truck camper or van camper used primarily for recreational purposes and not used commercially”

and a motor home, mini motor home or van camper (par. 1 — 145.01):

“§1 — 145.01. Motor home, mini motor home or van camper. A self-contained motor vehicle, not used commercially, designed or permanently converted to provide living quarters for recreational, camping or travel use, with direct walk through access to the living quarters from the driver’s seat.”

Section 20 — 137 of the ordinance explicitly prohibits the parking between 10 p.m. and 7 a.m. of motor homes. Clearly a recreational vehicle, such as a Winnebago, falls within the term “motor homes.” Neither the ordinance nor the parking tickets are vague and therefore unconstitutional.

Defendant contends that the village did not prove a prima facie case of violation because the officer did not testify as to which part of the section was violated. We disagree. It is conceded that the officer issued the parking tickets to a recreational vehicle. As shown above, that vehicle comes within the term “motor home.” This constituted prima facie proof of a violation.

Defendant’s additional argument that the village did not prove a prima facie case because it did not prove ownership of the vehicle in him is likewise meritless. The Village Ordinance provides:

“Sec. 20 — 143. Same — Owner of vehicle responsible.
“Whenever any vehicle shall have been parked in violation of any provisions of this article prohibiting or restricting parking, the person in whose name such vehicle is registered shall be prima facie responsible for such violation and subject to penalty therefor.”

In City of Chicago v. Hertz Commercial Leasing Corp. (1978), 71 Ill. 2d 333, 375 N.E.2d 1285, cert. denied (1978), 439 U.S. 929, 58 L. Ed. 2d 322, 99 S. Ct. 315, the court defined “prima facie” in an ordinance making the person in whose name a vehicle parked in violation of the city ordinance “prima facie responsible for such violation.” (71 Ill. 2d 333, 341.) It said (71 Ill. 2d 333, 340-41):

“In its statutory context, the words ‘prima facie’ mean that the City has established its case against the registered owner by proving (1) the existence of an illegally parked vehicle, and (2) registration of that vehicle in the name of the defendant. Such proof constitutes a prima facie case against the defendant owner. There is no indication in the ordinance that the owner, to be presumed responsible for the violation, must be presumed to have been the person who parked the vehicle. In practice, the defendant, to absolve himself of responsibility, may show that the vehicle was not parked illegally or that he was not the registered owner of the vehicle at the time of the alleged violation. The defenses are limited, but the plain meaning of the ordinance admits of no more”

and (71 Ill. 2d 333, 347):

“The two elements of the substantive offense are rebuttable by a showing that a violation was not committed or that the defendant was not the owner at the time of the violation. The constitutional requirement of procedural due process is satisfied because the defendant is not precluded from rebutting either element of the substantive offense.”

Thus, the presumption created by section 20 — 143 of the ordinance does not shift the burden of proof to the defendant, but operates to shift the burden of going forward and introducing evidence to meet the presumption. If evidence is introduced which is contrary to the presumption, the presumption ceases to operate. McElroy v. Force (1967), 38 Ill. 2d 528, 532-33, 232 N.E.2d 708.

Defendant did not introduce any evidence, as required by Hertz, to rebut either the commission of a violation or that he was not the owner of the vehicle. It is conceded that the officer issued tickets to a recreational vehicle which was parked on the street during the prohibited hours. Because, as shown above, that vehicle comes within the term “motor home,” this was prima facie proof of a violation. Defendant concedes that the officer’s radio call to Central Records to ascertain ownership was sufficient to tell who the alleged owner was at the time he wrote the parking tickets, but claims that it was insufficient proof of ownership at trial, even though defendant did not contest ownership.

To the contrary, we hold that the testimony of the officer concerning his radio check as to ownership was sufficient to make out a prima facie case. To require a municipal authority to secure a certificate of ownership from the Secretary of State in every case involving a parking ticket would be a useless, inconvenient and almost impossible burden, not only on the municipality, but also on the Secretary of State’s office and the courts of the State. (See City of Chicago v. Crane (1943), 319 Ill. App. 623, 631, 49 N.E.2d 802.) Only when ownership is contested would one be necessary.

The cases relied on by defendant are not in point: City of Chicago v. Myers (1968), 95 Ill. App. 2d 443, 237 N.E.2d 866, is readily distinguishable. There, the only evidence was that the officer would testify, if present, that he found an automobile, State license No. 743-980, on Friday, January 7, 1966, at 10 p.m., parked in front of 1038 North Shore Avenue. There was no evidence, as here, that a radio check with Central Records disclosed the ownership of the vehicle. People v. Manikas (1969), 106 Ill. App. 2d 315, 246 N.E.2d 142, appeal denied (1969), 41 Ill. 2d 582, was concerned, not with a parking violation, but with a conviction for driving after defendant’s driver’s license had been revoked. The court merely held that a certified copy of the record of the Secretary of State showing the status of his license was admissible and sufficient to prove a violation. It did not hold that the introduction of that record was the only way a violation could be proved.

The convictions and fines are affirmed.

Affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.