author: JUSTICE HEIPLE JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER ZEISLER, Defendant-Appellant.
    Third District
    No. 81—750
    Opinion filed February 17, 1983.
    Opinion modified March 16, 1983.

      STOUDER, J., dissenting.
    Robert Agostinelli and Verlin R. E Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John R. Clerkin, State’s Attorney, of Macomb (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

This matter involves a fire at the Zeisler residence which left Betty Zeisler severely burned over three-quarters of her body. As a result, Betty’s husband, Lester Zeisler, was charged by information with two offenses: (1) attempt murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1)); and (2) aggravated arson (Ill. Rev. Stat. 1979, ch. 38, par. 20 — 1.1). Following a jury trial, Lester Zeisler was acquitted of attempt murder but convicted of aggravated arson. The trial court sentenced him to a term of 30 years of imprisonment. Mr. Zeisler now appeals.

In addition to other pretrial motions, Zeisler filed a motion to suppress the results of the arson investigation conducted by Deputy Fire Marshal Hollis Miller. The motion alleged that Miller illegally searched Zeisler’s property initially without a warrant and that the search warrant he ultimately secured was based on information obtained during the prior illegal search. After a hearing on the motion, the trial court denied Zeisler’s motion and refused to suppress the evidence. The trial court found the search reasonable and cited an Illinois statute which provided for investigation of fires for cause determination by municipality fire chiefs and the State Fire Marshal.

A jury trial was held on October 26 through October 30, 1981. During the first two days, the State put on 18 witnesses.

Evidence adduced by the State at the trial established that on the afternoon and evening of June 30, 1981, Lester Zeisler and his wife, Betty, were patrons of several local taverns. At times they were together, but generally they drank with separate groups of persons at different places. At around 10:30 p.m., Betty Zeisler came into Larry’s Longshot tavern in Bushnell and socialized until approximately midnight when the tavern closed. Lester Zeisler was not with her at the tavern between 10:30 p.m. and midnight. In the bartender’s opinion, Betty was not intoxicated when she left the tavern alone at midnight. Around 12:30 a.m., several neighbors observed smoke coming from the second floor of the Zeisler apartment. The neighbors called the fire department. Although the neighbors knocked loudly on the door to the apartment, no one responded although they heard a noise like a “thud” from the inside. The neighbors then tried to enter the apartment but found the door locked.

The police and fire department arrived shortly thereafter. Earl Niestradt, fire chief of Bushnell, testified that when he arrived at the Zeisler apartment around 12:30 a.m., firemen were already on the scene. Niestradt entered the fire-filled apartment and removed the badly burned body of Betty Zeisler. It took approximately 20 minutes to get the major portion of the fire under control. The firemen then waited until the smoke cleared before fighting the rest of the fire. Towards the end of the fire fight, but before the fire was out, Niestradt examined the premises to determine the cause and origin of the fire. After deciding that he was not able to determine the cause and origin, he decided to call the Deputy State Fire Marshal for assistance in the morning.

The police and firemen remained at the Zeisler apartment and, at around 1:45 a.m., Lester Zeisler returned home. A policeman on the scene informed Zeisler that his wife, Betty, had been hurt fairly badly. The policeman reported that Zeisler, who was “cocky and drunk,” snickered and said, “Oh, really.”

In the interim, Betty Zeisler was taken to the McDonough District Hospital. She arrived in the emergency room around 1:45 a.m. According to the attending physician, Mrs. Zeisler had severe burns over 80% of her body and was in great pain and in shock. Emergency procedures were undertaken. Because of her condition, Mrs. Zeisler was transferred to the Springfield Burn Center in Springfield, Illinois.

Fire chief Niestradt telephoned Lewis Ellis, the Deputy Fire Marshal from Good Hope at about 6:30 a.m. that morning, July 1, 1981. Niestradt told him of the Zeisler fire earlier that morning, that he was unable to determine the cause and origin of the fire and would like to have some help. Ellis told Niestradt that a fire investigator would arrive to assist with the investigation around noon. Niestradt testified that he did not suspect arson at the time he called Ellis.

State Fire Investigator Hollis Miller arrived at Niestradt’s office at noon and both left immediately for the fire-destroyed Zeisler residence. There they walked around the outside of the premises. Upon Miller’s suggestion, they drove 16 miles to the State’s Attorney’s Office in Macomb, Illinois, to get a search warrant. They were told that no search warrant was needed so they then returned to the Zeisler residence in Bushnell. They then entered the premises for the purpose of determining the cause and origin of the fire. Miller took some photographs and cleared away some debris on the kitchen floor. Miller observed definite pour and burn patterns in the kitchen. In Miller’s opinion, these were clear evidence that the fire was incendiary or man-made in origin. They clearly rebuffed any notion that the fire was accidental. Accordingly, Miller believed a search warrant was needed to search for accelerants, accelerant containers and other evidence of aggravated arson. Both men proceeded to Macomb and obtained a search warrant. Upon returning to Bushnell, Miller took more photographs, removed tile in the kitchen and front room, and examined the kitchen area, the furnace, the washer and dryer.

The foregoing testimony from the State’s witnesses was adduced on the first two days of trial. On the third day of trial, the court convened at the auditorium of the Memorial Medical Center in Springfield, Illinois, to hear the testimony of Betty Zeisler. At that time she was still a patient at the hospital, recovering from injuries sustained in the fire.

The State had previously filed a motion to take the extraterritorial testimony of Betty Zeisler in Springfield. Mr. Zeisler vigorously objected to the State’s motion. A hearing on the motion was held. Betty Zeisler’s physician testified that she had been burned over 75% of her body, had endured repeated skin grafts and had 10 digital amputations. In the doctor’s opinion, transporting Mrs. Zeisler 85 miles from Springfield to Macomb for the trial would be detrimental to the healing process although it would not be life-threatening. At the conclusion of the testimony and argument of both sides, the trial court granted the State’s motion.

- Accordingly, the jurors were taken by bus to Springfield to listen to the testimony of Betty Zeisler. The proceedings took place at the Memorial Medical Center in a recreation therapy room measuring 1,000 square feet. An area was specifically set aside in the room for the public and press.

Mrs. Zeisler testified that on the day preceding the fire she and her husband, Lester Zeisler, went to a local gasoline station and purchased some gasoline in a can. Mr. Zeisler wanted the gasoline to mow his mother’s yard. Although he did not mow the grass that day, Mrs. Zeisler is unsure what her husband did with the gasoline can. Mrs. Zeisler went to Larry’s Longshot tavern that evening from about 10 p.m. to 11:45 p.m. She then walked home and dozed off on the couch in the living room. Lester came home a little later and wanted something to eat. He then picked up a skillet, tried to hit her with it, then threw it on the floor. Zeisler then hit his wife with his fist, knocking her to the floor. The next thing Mrs. Zeisler remembers is having fire all around her. She recalls her body on fire. Her husband Lester stood over her and said, “Burn, bitch, burn.” Lester then dragged her into the living room and locked the door as he left the apartment.

On cross-examination, Mrs. Zeisler admitted that she had been in and out of bars during the afternoon preceding the fire on June 30. She had an argument with Lester that afternoon, asked him for a divorce and ran away from him. Mrs. Zeisler was upset with Lester because of his seeing Peggy Wishon, who was the wife of her brother Earl. She did not think that she was drunk when she walked home from the tavern around midnight that night. Peggy Wishon and Peggy’s mother, Delores Rosenberry, were with Lester when the fire started in the apartment.

The State rested at the conclusion of Mrs. Zeisler’s testimony. The defense countered with a variety of witnesses presenting essentially alibi testimony. Not germane to this appeal, we find further elaboration unnecessary.

Among the motions filed by Zeisler prior to trial was one seeking' to suppress the results of the fire investigation conducted by Deputy Fire Marshal Hollis Miller. Zeisler claims that Miller illegally searched his apartment without a warrant and that Miller then searched it again with a warrant secured with information derived from the first search. The trial court denied Zeisler’s motion to suppress the evidence from Miller’s investigation. Zeisler claims this as error. We do not agree.

Fire officials are charged not only with extinguishing fires, but ■with finding their causes. According to Illinois law:

“The chief of the fire department of every city or village in which a fire department is established *** shall investigate the cause, origin and circumstances of every fire occurring in such city *** by which property has been destroyed or damaged, and shall especially make investigation as to whether such fire was the result of carelessness or design. Such investigation shall be begun within two days of the occurrence of the fire ***.” (Ill. Rev. Stat. 1979, ch. 127 1/2, par. 6.)

The United States Supreme Court has held the contention that the need to obtain a warrant begins with the dousing of the last flame is “unrealistically narrow.” (Michigan v. Tyler (1978), 436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942.) In Tyler, the court went on to find that the cessation at 4 a.m. of the promptly begun investigation due to the hindrances caused by darkness and the subsequent continuation of it later in the morning was no more than an “actual continuation” of the first investigation. The court held that the investigation was done in a reasonable time and did not require a warrant.

The instant facts are similar. Fire chief Niestradt began his investigation into the Zeisler fire after the blaze was brought under control. After deciding that he was unable to determine the fire’s cause and origin, he decided to call the Deputy Fire Marshal. Niestradt did this promptly at 6:30 a.m. that morning. At that time Niestradt was told a fire inspector would be out to assist him around noon. When Deputy Fire Marshal Miller arrived in Bushnell around noon, Miller and Niestradt entered the apartment to determine the cause and origin of the fire. We do not find this search of the Zeisler apartment so detached from the initial investigation activities of the fire chief so as to require a search warrant. We note that the fire occurred after midnight. The town of Bushnell is small in population with no fire marshal or investigator readily available. We note also that Bushnell fire chief Niestradt was fully employed as manager of a grain elevator. As Bushnell is not a large metropolis, we can assume Niestradt’s activities as fire chief are limited. We believe it reasonable that he called in a fire investigation professional with as much dispatch as possible given the circumstances. For Niestradt to suspend his investigation for several hours until the arrival of an expert is like postponing the search until the smoke clears or the proper tools become available. Thus the evidence of arson gathered during the Miller-Niestradt investigation was proper; the evidence was found during a continuation of the prompt investigation of the cause of the fire.

It is important for us to note at this juncture that it is clear from the record Niestradt did not suspect arson when he called the Deputy Fire Marshal for assistance. Had Niestradt suspected arson and his purpose for visiting the Zeisler apartment with Miller was for gathering evidence of arson, then their conduct might well have exceeded the bounds of the fourth amendment if they did not have a warrant. But such is not the case. It wasn’t until Miller came across the pour and burn patterns during his first visit that arson was suspected; a warrant was then immediately sought and obtained.

While search warrants are always preferred, we recognize that practicality demands some flexing. To hold that fire investigators relinquish their authority to search without a warrant for the cause of the fire once they depart from the dwelling for any reason, is impractical and unreasonable. Such is not required by the law. The trial court, after hearing the evidence and argument of counsel, held that the warrantless fire investigation by Miller was reasonable and the evidence of arson therein obtained was admissible. We will not disturb the trial court’s ruling on a motion to suppress unless it is manifestly erroneous. (People v. Williams (1974), 57 Ill. 2d 239, 246.) We cannot say, from the evidence presented, that the trial court’s ruling on the motion to suppress was manifestly erroneous.

As his second claim of error, Zeisler contends that the trial court’s decision to permit the jurors to witness the testimony of the victim, Mrs. Zeisler, at the hospital was error which requires reversal of his conviction. We do not agree.

The defendant contends that a court is powerless to act in any place other than the courtroom designated by law. In support of this contention, defendant cites two statutes, neither of which apply to this case.

The first statute provides that a criminal action must be tried in the county where the offense was committed. (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 6(a).) This is a venue statute. No one is asserting that venue has been set in Sangamon County rather than McDonough County where the offense occurred. The sole purpose of the trip to Springfield was to allow the jury to hear the testimony of a witness and nothing more. For all other purposes the trial was held in McDonough County.

The second statute provides for the establishment of a temporary courthouse in the event of a national emergency or public calamity. (Ill. Rev. Stat. 1979, ch. 37, par. 72.34.) This statute obviously contemplates the necessity of re-establishing the situs of a courthouse and has nothing to do with regulating the proceedings within an individual trial.

Defendant also cites two rather old supreme court decisions which held that a court can exercise its functions only in the places appointed by law. (People v. McWeeney (1913), 259 Ill. 161; McCune v. Reynolds (1919), 288 Ill. 188.) We feel that these cases are of limited scope today in light of the fact that a court may, in its discretion, permit a jury to view evidence outside of the courtroom. In a similar manner, we do not construe those cases as preventing a judge from exercising his discretion, in limited circumstances, to permit a jury to hear the testimony of a witness outside of the courtroom. The judge controls the conduct of trial and should be given broad discretion in doing so. People v. Beil (1979), 76 Ill. App. 3d 924.

In the instant case, the testimony of Mrs. Zeisler was important. She was the victim of the alleged crimes. In the hearing on the motion, her physician testified that it would be quite stressful for her to travel from the hospital to Macomb to testify in the trial. At the time of trial she still had a tube in her neck for breathing purposes. Moreover, the trip would have retarded her tenuous bum healing process.

We are cognizant that the trip would not have threatened the life of Mrs. Zeisler. We are also well aware that the supreme court rules provide for introduction into evidence of the deposition of a witness unable to attend a trial. (73 Ill. 2d Rules 212, 414.) These facts alone, however, do not support the claim that the trial court abused its discretion without some showing that the defendant was prejudiced when the jury was allowed to hear Mrs. Zeisler’s testimony outside the courtroom.

The defendant argues that he was prejudiced because taking the testimony of a witness in a hospital somehow denigrates the dignity and decorum of the proceedings and gives undue emphasis to the testimony of that witness. We believe that the court carefully controlled the conduct of the proceedings and established adequate safeguards to prevent any overemphasis. Upon informing the jury that they would hear testimony at the hospital, the judge made the following statement:

“You will be accompanied in your transporting by the bailiffs only and, of course, a driver person.
*** We will take testimony, and the place in which we take it will be a public place and will be used at that place as a court facility very temporarily.
During your travel to and from Springfield, it would be the direction of the Court, and the bailiffs would see to it, that, of course, you not discuss the case, not discuss your reason for going to Springfield, nor discuss the testimony that you hear in Springfield. In other words, you will treat tomorrow as just another day in court for the purpose of considering evidence with respect to this matter.
I would ask and direct that you not take any reading material that would contain any information regarding this trial, and I would further direct that the mere fact that we are not holding court in this room tomorrow should not be considered by you in any way.
You should not be biased or prejudiced against the Defendant or the People. In other words, it should be considered as just another day in Court.
I would estimate that you will be back early in the afternoon, reasonably early in the afternoon. You will be provided with the necessary meals and provisions will be made for public spectators as necessary.
With that I, of course, would admonish you again not to read anything about this case, listen to anything on the radio, talk about it either among yourselves or to members of your family; and with that see you tomorrow. Good night.”

It is apparent that the judge was stressing the fact that the proceeding should be considered just another day in court. The testimony was heard in a 1,000-square-foot hospital facility which was sufficient to accommodate the persons necessary on the proceeding and the interested public. There is no evidence that dignity and decorum were in any way denigrated by this procedure. The mere fact that the jury knew they were in a hospital, in view of the court’s safeguards, does not demonstrate any prejudice to the defendant. People v. Jenkins (1980), 88 Ill. App. 3d 719.

Under the circumstances of this case, we find that the trial court acted properly in granting the State’s motion to hear the testimony of Mrs. Zeisler outside the courtroom. Accordingly, we affirm the judgment.

Affirmed.

ALLOY, J., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully disagree with my colleagues as to the issue of whether it was error to permit the jurors to witness the testimony of the victim at the hospital. I believe that it was reversible error to do so.

The Illinois Supreme Court has stated that courts are not migratory and can only exercise their functions in the places appointed by law (People v. McWeeney (1913), 259 Ill. 161, 102 N.E. 233), and Illinois law clearly contemplates that legal proceedings will be held in county courthouses. Ill. Rev. Stat. 1981, ch. 37, pars. 72.33, 72.34.

Furthermore, in McCune v. Reynolds (1918), 288 Ill. 188, 123 N.E. 317, a will contest action, the court indicated it was error to allow the removal of the trial court to the home of a witness to the will for the purpose of taking his testimony, he being ill and unable to attend the proceedings. However, because the witness’ testimony was not essential in establishing a prima facie case of the lack of testimentary capacity or undue influence and the taking of the testimony at his home was agreed upon by the parties, such error was a harmless one. See People v. Jenkins (1980), 88 Ill. App. 3d 719, 419 N.E.2d 1125, for a contrary view; the court holding that it was not error to remove the trial court to a hospital to hear the victim’s testimony, the only error considered being the claim of defense counsel that he was deprived of an opportunity to voir dire the jury on any bias they might have about removal of the court to a hospital setting.

The law in this area among the other States does not clearly establish the propriety or impropriety of hearing a witness’ testimony outside of a courthouse. (Annot., 18 A.L.R.3d 572 (1968).) However, it appears in most cases holding that no error results, specific mention is made of either an agreement between the parties to hear a witness’ testimony outside of the courtroom, the fact that no statute exist which prohibits the holding of court outside of the courthouse or the fact that testimony was heard at a view in order to explain what was being seen by the.jurors. Conversely, in those cases holding that error does result in hearing a witness’ testimony outside of the courthouse, the decisions appear to be based upon jurisdictional grounds: holding court anywhere other than the legally designated place is not authorized by law and is therefore void.

As stated previously, Illinois statutory law contemplates that legal proceedings will be held in courthouses. Of probably even greater importance as applied to the circumstances of this case, is Supreme Court Rule 414(a) (73 Ill. 2d R. 414(a)), which provides for evidence depositions of witnesses who may be unavailable to testify in criminal cases. This rule specifically applies to the circumstances of the victim in this case and her apparent inability to testify at the trial. Granted the trial judge has discretion in the conduct of the trial, the discretion is exercisable in the context of guiding principles and rules and is limited by the applicable principles and rules. Neither the trial court nor the majority of this court suggest any reasons why Supreme Court Rule 414(a) was inapplicable or in any way suggest how or why the circumstances did not fall within its scope. Where there is as in the present case, a supreme court rule providing for the circumstances which have arisen, I am unable to agree with the majority that the general discretion of the trial court is adequate authority to adopt a contrary procedure. That the result achieved by transporting the jury and other court personnel a substantial distance to a converted hospital auditorium is unusual and prejudical is recognized by the majority when it emphasizes the “safeguards” which were employed by the trial court. If this was just an ordinary humdrum occurrence no “safeguards” would have been necessary or even appropriate. All the “safeguards” do is emphasize the artificiality of the circumstances in which the victim’s testimony is presented and clothe it with the appearance of special uniqueness or credibility. The subtle influence on a jury can only be speculated upon and consequently the procedure is lacking in fundamental fairness and ought not be approved. I believe that in the case at hand, hearing the victim’s testimony outside the courtroom setting in a hospital, over the objection of the defendant, placed undue importance upon such testimony regardless of any admonitions given by the trial court to the contrary.

The view of a scene by the jurors has a purpose which cannot be replicated by mere descriptive testimony; however, no additional purpose is served in hearing testimony of a witness outside the courtroom. In fact, a significant amount of prejudice can be created in the minds of the jurors when a witness’ testimony is heard outside the neutral atmosphere of the courtroom.

Therefore, it is my opinion that removing the trial to the hospital in order to hear the testimony of the victim was reversible error and this case should be remanded for a new trial.


source: Caselaw Access Project

author: JUSTICE RIZZI McNAMARA, P.J.,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN GILLIARD, Defendant-Appellant.
    First District (3rd Division)
    No. 81—913
    Opinion filed February 16, 1983.
    McNAMARA, P.J., dissenting.
    James J. Doherty, Public Defender, of Chicago (Richard E. Cade, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and Larry J. Crown, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

A jury found defendant, Steven Gilliard, guilty of robbery. Defendant, who is black, contends that the trial court erred in denying his motion for a mistrial because the prosecutor systematically used peremptory challenges during the voir dire examination of the prospective jurors to exclude blacks from the jury solely because they were blacks. It is defendant’s position that he was denied the. type of fair trial guaranteed under the sixth amendment of the United States Constitution because the State affirmatively frustrated his right to a jury drawn from a fair cross section of the community. We reverse the conviction and remand the case for a new trial.

The record demonstrates that the procedure for the selection of the jury began with the trial judge interrogating the prospective jurors. The attorneys then interrogated the prospective jurors in panels of four. The first panel contained one black and three whites. The State exercised a peremptory challenge to excuse the black. When another black was called to fill the panel, she, too, was excused by the State by the use of a peremptory challenge. When accepted, the first panel of jurors did not contain any blacks. The second panel contained no blacks at any time. The third panel contained three white prospective jurors and one black prospective juror. The State exercised a peremptory challenge to excuse the black, and the black was replaced by a white. When accepted, the third panel of jurors did not contain any blacks. One of the two alternate jurors who was selected was black. However, the trial court noted in the record that by that time the State had exercised all of its peremptory challenges, and the State “really had no choice” but to accept the black as an alternate juror. Defendant did not exclude any black prospective jurors.

After the jury was selected, defendant moved for a mistrial on the basis that the State had systematically excluded all the black prospective jurors from the jury, in violation of the rights guaranteed him under the Constitution of the United States. The jury cards were made part of the record in conjunction with the motion. The prosecutor objected to the motion, and as his reasons for opposing the motion, he stated that defendant did not prove why the State excluded the black prospective jurors and that the State did not have to give any reasons for excluding the black prospective jurors. The prosecutor then cited and discussed Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, in which the Supreme Court held that the systematic striking of all blacks from the jury by the State in a single case did not violate the equal protection standard of the fourteenth amendment of the United States Constitution. The following statements were then made:

“[The prosecutor]: The People do not have to tell this Court why they excluded anyone from that jury. It [Swain] further says it’s without inquiry and without being subject to Court’s control. The whole basis and fact of the word ‘peremptory challenge,’ allows the State to exclude persons without telling you why.
We would further like to call the Court’s attention to People versus Fleming—
* * *
The court: Because you cited sufficient cases for appeal, there is no legal basis for a mistrial, Mr. [defense counsel].
[The prosecutor]: Could we do one more case?
The court: I have the jury waiting.
[The prosecutor]: If they appeal it—
The court: They can’t appeal it because the law is to the contrary, legally.
The legal basis, the cases, I have read them, I have read these that you have read plus others, but, however, I will say this:
I think that the attitude — I am not speaking of you individuals, I am talking about the attitude of the State’s Attorney’s Office, period. I find this is morally reprehensible and in my opinion there is a purposeful discrimination, in my opinion. It’s an invidious discrimination. It’s a bad policy that they have and I find the State’s Attorney’s attitude and policies towards removal of Black people from the jury is, to me, is personally offensive not only as a Black person, but as a Black lawyer and a Black judge.
Now, the first panel we selected, the State exercised three challenges, two of whom were Black ladies and the second panel, there were no Blacks in that group, so there was one challenge to one White person a Mr. Finney, and the third panel, there was one Black male and three Whites excluded.
* * *
In my past experience I found this same policy, the same procedures followed.
All right. Your motion is denied.
* * *
[The prosecutor]: If you say it’s purposeful, you have to exclude the jury.
The court: I said it’s my opinion, but it’s not the law.”

On appeal, the State argues that “a prima facie case of racial discrimination could never be established in just one particular case, even if in that case, all Blacks were excluded for the sole reason that they were Black.” We flatly rejected this argument in People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, appeal allowed (1982), 91 Ill. 2d 578. In Payne, we held that the State’s systematic exclusion of prospective jurors in any given case solely because of their race is invidious and unconstitutional at any stage of the jury selection. We based our decision in Payne on the defendant’s right to an impartial jury under the sixth amendment and upon the roles of the State, the prosecutor and the court itself in a criminal trial.

We believe that the present case truly demonstrates the value and importance of Payne. In this case, a trial judge experienced in conducting voir dire examinations concluded that the State was following the “same policy” and the “same procedures” of “invidious discrimination” that the State has followed in the past when selecting a jury. Although the trial judge found this “morally reprehensible,” he felt compelled by the insuperable burden imposed upon a defendant in Swain and its progeny to deny defendant’s motion for a mistrial. Payne unshackles trial judges in these situations and permits them to maintain justice and the appearance of justice in their courtrooms by allowing them to require the prosecutor in such situations to make a showing that he is not systematically excluding blacks from a jury solely because of their race.

In Payne, we held that in any given case, when it reasonably appears to the trial court, either by its own observation or after motion by the defendant, that the prosecutor is using peremptory challenges to systematically exclude blacks from the jury solely because they are blacks, the court should require the prosecutor to demonstrate, by whatever facts and circumstances exist, that blacks were not being systematically excluded from the jury solely because they were blacks. At this stage, the burden of demonstrating that the Constitution was not being violated is upon the prosecutor. If the trial court finds that as to any of the questioned challenges the State has not sustained its burden of demonstrating that it was not excluding blacks from the jury solely because they were blacks, the court must then conclude that the jury as constituted at that point fails to comply with the fair-cross-section requirement of the Constitution, and it must dismiss the jurors thus far selected. Also, it must quash the remaining venire, since the accused is entitled to a random draw from an entire venire, not one that has been partially or totally stripped of a cognizable group by unconstitutional means. Upon such dismissal, a different venire should be drawn, and the jury selection process should begin again. 106 Ill. App. 3d 1034,1040, 436 N.E.2d 1046,1050-51.

Here, after it reasonably appeared to the trial judge, as demonstrated by his observations and statements that appear on the record, that the State was using peremptory challenges to systematically exclude blacks from the jury solely because they were blacks, the trial judge should have required the State to demonstrate, by whatever facts and circumstances existed, that blacks were not being systematically excluded solely because they were blacks. The failure of the trial court to impose such a requirement on the prosecutor at that stage was error, and the error was of such magnitude that the conviction must be reversed and the case remanded for a new trial. People v. Payne (1982), 106 Ill. App. 3d 1034, 1045-46, 436 N.E.2d 1046, 1054; People v. Gosberry (1982), 109 Ill. App. 3d 674, 678, 440 N.E.2d 954, 958.

The State argues that because there is no transcript of the attorneys’ voir dire examination of the prospective jurors, the record is not sufficient to support defendant’s argument. However, in making his motion for a mistrial, defense counsel specified for the record the circumstances under which the State used its peremptory challenges, and defense counsel made the jury cards part of the record. In addition, the trial judge had interrogated the prospective jurors, and when he made his express finding that there was purposeftd discrimination against blacks by the State in selecting the jury, he expressly included on the record what had occurred during the jury selection. Under the circumstances, the State’s argument is unavailing.

The State next contends that the record is not sufficient to support defendant’s argument because the trial judge did not permit the prosecutor to make a complete record The pertinent part of the record on this point has been set forth earlier in this opinion. It shows that the trial judge merely precluded the prosecutor from citing an additional case authority after the judge had already decided to deny defendant’s motion. We therefore conclude that the State’s contention is without merit.

Although we base our decision in this case on Payne, we recognize that another division of this court has recently disagreed with Payne. (People v. Newsome (1982), 110 Ill. App. 3d 1043.) In our judgment, Newsome merely reiterates the arguments made in Swain and its progeny, without any meaningful change, improvement or benefit. Newsome, like Swain and the other cases relied upon in Newsome, is based solely on the fourteenth amendment, whereas Payne is based on the sixth amendment. Plainly, the two amendments are not the same. Unlike the nebulous and indefinite equal protection standard of the fourteenth amendment, the sixth amendment guarantee of an impartial jury in criminal cases is specific and certain.

By totally ignoring the defendant’s rights under the sixth amendment, Newsome disregards the distinction between the rights of a defendant under the sixth amendment and the fourteenth amendment. The Newsome court apparently assumes that whether a sixth amendment right or a fourteenth amendment right is involved in these cases, the issue remains the same — the power of the State to exercise peremptory challenges. However, the standard of judicial review is determined by the nature of the constitutional right assertedly threatened or violated rather than by the power being exercised by the State. (Cf. Schad v. Borough of Mount Ephraim (1981), 452 U.S. 61, 68, 68 L. Ed. 2d 671, 680, 101 S. Ct. 2176, 2182; Thomas v. Collins (1945), 323 U.S. 516, 529-30, 89 L. Ed. 430, 440, 65 S. Ct. 315, 322; Lubavitch Chabad House of Illinois, Inc. v. City of Evanston (1982), 112 Ill. App. 3d 222, 225-26.) Here, as in Payne, the right assertedly threatened or violated is defendant’s right under the sixth amendment to a fair and impartial jury, and therefore, it is that amendment which must be examined and applied. Since the decisions in Newsome and in Swain and its progeny are based solely on the fourteenth amendment and not upon a specific right under the sixth amendment, they are not controlling here.

In Payne, we referred to the fact that in Taylor v. Louisiana (1975), 419 U.S. 522, 530, 42 L. Ed. 2d 690, 698, 95 S. Ct. 692, 697-98, the Supreme Court accepted “ ‘the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment’ ” and stated that “ ‘the requirement has solid foundation.’ ” We also pointed out that in the same case, the Supreme Court held that the State’s systematic exclusion from the jury of “ ‘identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.’ ” (106 Ill. App. 3d 1034, 1036, 436 N.E.2d 1046, 1052, quoting 419 U.S. 522, 530, 42 L. Ed. 2d 690, 698, 95 S. Ct. 692, 698.) In Payne, we stated:

“Although the Taylor case involved the exclusion of a discrete group during the venire selection rather than during the voir dire selection of jurors, we see no rational difference warranting the allowance of racial discrimination by the State in the latter instance but not the former. Obviously, the very purpose of refusing to tolerate racial discrimination in the composition of the venire is to prevent the State’s systematic exclusion of any racial group in the composition of the jury itself. The desired goal of interaction of a cross section of the community does not occur within the venire, but rather, is only effectuated by the petit jury that is selected and sworn to try the issues. It follows that the systematic exclusion of prospective jurors solely because of their race is equally invidious and unconstitutional at any stage of the jury selection, i.e., from the time the general jury list is prepared by the jury commissioner until the jury is actually selected and sworn. If we were to hold otherwise, the constitutional right to a jury drawn from a fair cross section of the community could be rendered a nullity through the use of peremptory challenges. We would have to resort to casuistry to hold that a State may do at the voir dire selection of the jury what it is constitutionally precluded from doing at the venire selection of the jury.” 106 Ill. App. 3d 1034, 1036-37, 436 N.E.2d 1046, 1048.

The Newsome court does not explain why it would be a violation of the sixth amendment for the State to systematically exclude women or blacks from the jury during the venire jury selection solely because of their gender or race but it would not be a violation of the sixth amendment for the State to systematically do so during the voir dire selection of jurors.

Moreover, Payne is based not only upon a defendant’s right to an impartial jury under the sixth amendment, but also upon the roles of the State, the prosecutor and the court itself in a criminal trial. New-some does not address any of these issues which we believe are essential to a determination of whether a prosecutor may systematically exclude blacks from a jury in any given case solely because of their race. Specifically, as to the role of the prosecutor, Newsome does not take into account the precept that the prosecutor is the representative of all the people, including the defendant, and it is as much his duty to safeguard the constitutional rights of the defendant as those of any other citizen. (People v. Oden (1960), 20 Ill. 2d 470, 483, 170 N.E.2d 582, 588; People v. Valdery (1978), 65 Ill. App. 3d 375, 378, 381 N.E.2d 1217, 1219-20.) Newsome also overlooks the fact that the prosecutor does not represent an ordinary party to a controversy, but represents a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. (Berger v. United States (1935), 295 U.S. 78, 88, 79 L. Ed. 1314, 1321, 55 S. Ct. 629, 633.) When a prosecutor systematically excludes blacks from the jury in any given case solely because they are blacks, he is not safeguarding the constitutional rights of the defendant. In fact, he is not seeking justice. He is only seeking to win a case and convict. This is a clear violation of his ethical and professional duty. See People v. Payne (1982), 106 Ill. App. 3d 1034, 1037, 436 N.E.2d 1046, 1048; Berger v. United States (1935), 295 U.S. 78, 88, 79 L. Ed. 1314, 1321, 55 S. Ct. 629, 633; People v. Oden (1960), 20 Ill. 2d 470, 483, 170 N.E.2d 582, 588; People v. Valdery (1978), 65 Ill. App. 3d 375, 378, 381 N.E.2d 1217, 1219-20; ABA Standards, The Prosecution Function 1.1(c) (1974); ABA Code of Professional Responsibility, EC 7 — 13 (1979).

As to the role of the court itself in a criminal prosecution, we must be mindful that the appearance of justice in a criminal trial is as important as justice in fact. Clearly, if nothing else, the appearance of justice affects the integrity of the judicial process itself. (Rose v. Mitchell (1979), 443 U.S. 545, 555-56, 61 L. Ed. 2d 739, 749, 99 S. Ct. 2993, 3000.) This is one of the important reasons why the judiciary must not blink at the reality of what the State is seeking to do here and in cases such as Payne and Newsome. The State is seeking to establish, by judicial approval, the right to practice racial discrimination in the prosecution of its citizens. To us, if the State succeeds, it will not only destroy the appearance of justice in our courtrooms, but it will also cast grave doubt on the integrity of the judicial process. Those citizens who are selected as jurors in a criminal case are expected to judge the defendant solely on the basis of his acts and not on the basis of his race. The selected jurors can hardly be expected to accomplish this task if they see that they, themselves, were selected by the State not on the basis of their individual qualities, but as members of a particular race. Thus, in order to maintain the appearance of justice and the integrity of our judicial process, we believe that in selecting a jury in a criminal case, the State, like our Constitution, must be color-blind. See Plessy v. Ferguson (1896), 163 U.S. 537, 559, 41 L. Ed. 256, 263,16 S. Ct. 1138, 1146 (Harlan, J., dissenting).

This leads to what we believe is another major shortcoming of Newsome and cases similarly decided. Newsome does not forthrightly recognize and acknowledge that prosecutors are actually excluding blacks from serving on juries in criminal cases solely because of their race when there are black defendants. However, it is an open secret that prosecutors in Chicago and elsewhere have been using their peremptory challenges to systematically eliminate all blacks, or all but token blacks, from juries in criminal cases where the defendants are blacks. (See Waltz, Now It’s Harder for Lawyers to Pick Biased Jury, Chicago Sun-Times, July 13, 1982, at 30, col. 1.) Since all others can see and understand this, how can we properly shut our minds to it? (Child Labor Tax Case (1922), 259 U.S. 20, 37, 66 L. Ed. 817, 819, 42 S. Ct. 449, 450.) There comes a point when we should not be ignorant as judges of what we know as men. Watts v. Indiana (1949), 338 U.S. 49, 52, 93 L. Ed. 1801,1805, 69 S. Ct. 1347,1349.

We believe that the judiciary must not only forthrightly recognize and acknowledge that prosecutors are practicing racial discrimination in the selection of juries in criminal cases where there are black defendants, but the judiciary should also demonstrate an awareness of the effect of the problem on our society. The systematic exclusion of blacks from jury service in any given case solely because of their race impairs the confidence of the public in the administration of justice. Such racial discrimination by the State is at war with our basic concept of a democratic society and a representative government. The harm is not only to the accused, but to society as a whole. See Rose v. Mitchell (1978), 443 U.S. 545, 556, 61 L. Ed. 2d 739, 749, 99 S. Ct. 2993, 3000; People v. Payne (1982), 106 Ill. App. 3d 1034, 1038, 436 N.E.2d 1046, 1049.

We also believe that judicial awareness of the existence of the problem and its effect upon our society is essential because our system of law is not based upon some transcendental revelation, but upon the conscience of our society ascertained as best it can be by a tribunal disciplined for the task. We believe the conscience of our society can no longer tolerate the State’s systematic exclusion of blacks from juries solely because of their race. It does not matter what procedure or form the State uses to accomplish such pernicious discrimination. The simple fact is that it should not be done by the State under any procedure or form. (People v. Gosberry (1982), 109 Ill. App. 3d 674, 683, 440 N.E.2d 954, 960.) Racial discrimination by the State is no longer acceptable in our society — period. See cases cited and discussed in R. Kluger, Simple Justice 750-78 (1977).

The Newsome opinion states that “ ‘[t]his court does not condone the use of peremptory challenges to exclude prospective jurors on the basis of race.’ ” (110 Ill. App. 3d 1043, 1055, quoting People v. Allen (1981), 96 Ill. App. 3d 871, 878, 422 N.E.2d 100, 106.) However, in our judgment, the Newsome opinion does something worse then condone the practice of which it speaks because, in effect, it serves to perpetuate the practice of racial discrimination by the State in the selection of juries. In our view, racial discrimination in the selection of juries by the State, whether accomplished subtly or brazenly, must be stopped by the judiciary in no uncertain terms, or the judiciary will be serving as an accomplice to such discrimination by allowing its continuation in our courtrooms. This goes beyond mere condonation.

The Newsome court suggests that the problem should be solved by the legislature. (110 Ill. App. 3d 1043, 1055.) However, the problem exists in the courtrooms and not in the halls of the legislature. Therefore, we in the judiciary cannot afford to allow the problem to continue within our own realm by labeling it one of legislative domain. (People v. Gosberry (1982), 109 Ill. App. 3d 674, 681-82, 440 N.E.2d 954, 960.) We must not forget that the appearance of justice in the courtroom is as important as justice in fact. Thus, the judiciary itself must stop even the appearance of racism by the State in selecting a jury-

The Newsome opinion also states that Payne “sets forth no specific standard or guidelines to be followed as an aid to the trial courts or the bar.” (110 Ill. App. 3d 1043, 1054 n.3.) We reject this criticism of Payne. A prosecutor’s systematic exclusion of blacks from a jury solely because they are blacks occurs under varying circumstances which are not susceptible of precise definition. It is for this reason Payne holds that when it reasonably appears to the trial judge by his own observation or after motion by the defendant-, that the prosecuting attorney is using peremptory challenges to systematically exclude blacks from the jury solely because they are blacks, the trial judge should require the prosecutor to demonstrate, by whatever facts and circumstances exist, that blacks were not being systematically excluded from the jury solely because they were blacks. No further standard or guideline is needed or advisable. Plainly, trial judges, given their presence in the courtroom during the entire proceeding and their ability to observe all facets of the voir dire selection, should be able to distinguish bona fide reasons for exclusion from contrived declarations of motives. If trial judges are fit to make all the other meaningful decisions during the course of a trial, then they are fit to make the decisions required here. Moreover, if errors are made, they are subject to review the same as any other errors that may occur during trial.

The Newsome court states that our system of peremptory challenges would be significantly altered under Payne. (110 Ill. App. 3d 1043, 1055.) We disagree. If the prosecutor seeks to peremptorily excuse people from jury service for any reason other than the fact that they happen to belong to a discrete group, then Payne has no applicability or relevance. Moreover, it should be recognized that Payne has no application to peremptory challenges used by the defendant. This is so because the Bill of Rights (specifically, in this case, the sixth amendment) only protects citizens against acts by the government. The government has no such reciprocal constitutional entitlement. This point is made very clear by Associate Professor James P. Carey, Loyola University of Chicago, School of Law, who states:

“Against this background one immediate response to Payne is to ask, if the defense operates in this way, why should the State be handicapped? Isn’t the State entitled to a fair trial? It is Payne’s answer to these very questions which mark it as a special decision.
In every criminal prosecution the power of the State is arrayed against the individual. Our constitution, and especially the first eight amendments, limit the power of government. The State is limited precisely because it is the State. This is the essence and genius of our constitutional scheme.
Although the State is a party to a criminal lawsuit and is entitled to a fair trial, it is not entitled to the protections of the Bill of Rights, which were adopted to curtail State power vis-avis the individual. Therefore it is entirely irrelevant that defense counsel use peremptory challenges in the same way that the State does. For what is crucial is that the State’s use erodes a precious right, the right to trial by a jury composed of a fair cross section of the community.
In basing [its] decision upon the sixth amendment right to jury trial and upon the general constitutional premise that the power of the State is limited, [Payne] is on solid ground. ***
It is clear then that even though defense counsel use peremptories in this way, it is impermissible for the State to do so.” Some Thoughts on People v. Payne, Ill. St. B.A. Newsletter, 13 Judicial Ad. 7 (August 1982).

Accordingly, Payne does not significantly alter our system of peremptory challenges. Rather, Payne requires the State to justify its actions in excluding prospective jurors only in certain instances, based on a rational perspective of the relationship between the State and the individual. In effect, Payne merely gives real meaning to what would otherwise be vacuous statements by the courts regarding the State’s systematic exclusion of blacks from the jury solely because of their race. People v. Gosberry (1982), 109 Ill. App. 3d 674, 681, 440 N.E.2d 954, 959.

The right to a fair and impartial jury as guaranteed by the sixth amendment is one of the most precious rights we have as citizens of this country. It follows that we in the judiciary have a compelling duty to scrupulously see that this right is not compromised or denied as to any single defendant, lest the right be eroded or lost for all citizens. We have applied this perspective to this case, and we conclude that for the reasons stated in this opinion, defendant’s sixth amendment right to a fair and impartial jury, which includes the right to a jury drawn from a fair cross section of the community and the corresponding right not to have the State affirmatively frustrate that entitlement, was violated. Therefore, defendant’s conviction cannot stand.

In addition, we believe that the roles of the State, the prosecutor and the court itself in a criminal trial preclude the State from using peremptory challenges to systematically exclude blacks from the jury solely because they are blacks in any given case and at any stage of the selection of the jury. Applying this perspective to this case, we conclude that this presents an additional reason why defendant’s conviction cannot stand.

Accordingly the judgment is reversed, and the case is remanded for a new trial.

Reversed and remanded.

WHITE, J., concurs.

McNAMARA, P.J.,

dissenting:

I dissent. I find no infirmity, constitutional or otherwise, in the State’s exercise of its peremptory challenges. (Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824; People v. Harris (1959), 17 Ill. 2d 446, 161 N.E.2d 809; People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066; People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330.) This is particularly true in the present case, where by agreement of the parties no report of proceedings was made of the voir dire process and where defendant first objected two days after selection of the jury.

Since defendant’s only assignment of error is the State’s use of its peremptory challenges, I would affirm the judgment of conviction.

       In Swain, the court stated that a defendant may establish a bona fide equal protection violation only if he could show “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be,” that the prosecutor “is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever served on petit juries.” (380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.) It is doubtful that our courts maintain the comprehensive records of peremptory challenges “in case after case” that would be necessary to sustain a defendant’s burden under Swain. As an example, it is unlikely that there are very many cases in which the races of excluded jurors would be indicated in the court records, let alone the circumstances under which the jurors were excluded. In Commonwealth v. Soares (1979), 377 Mass. 461, 475-76 n.10, 387 N.E.2d 499, 509 n.10, the possibility of a defendant being able to sustain his burden under Swain was described as “illusory.” Moreover, it is obvious that under the "case after case” requirement, the first few defendants to be unconstitutionally deprived of an impartial jury by the prosecutor’s use of peremptory challenges would not be able to sustain their burden of showing that their constitutional rights had been violated.

       The court reporter was excused by both the State and defendant during this part of the voir dire examination.

       In this regard, Newsome misreads Payne when it states that Payne is the first Illinois case to adopt People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (which prohibits the State’s use of peremptory challenges to remove prospective jurors based solely on group bias). (110 Ill. App. 3d 1043, 1053.) While Payne agrees with the rationale and holding of Wheeler in all respects, Payne is based on the sixth amendment of the Constitution of the United States, whereas Wheeler is based solely on a particular provision of the California Constitution.

       The distinction between the two amendments is manifest in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, where the court held that a Louisiana statute exempting women from jury service unless they chose to serve was unconstitutional because the systematic exclusion of women from jury panels from which petit juries are drawn violates the fair-cross-section rule of the sixth amendment. In reaching its conclusion, the court distinguished Hoyt v. Florida (1961), 368 U.S. 57, 7 L. Ed. 2d 118, 82 S. Ct. 159, where a challenge to a similar statute on the basis of the fourteenth amendment had been rejected. The Taylor court stated: “It is true that Hoyt *** held that such a system did not deny due process of law or equal protection of the laws because there was a sufficiently rational basis for such an exemption. But Hoyt did not involve a defendant’s sixth amendment right to a jury drawn from a fair cross section of the community and the prospect of depriving him of that right if women as a class are systematically excluded. The right to a proper jury cannot be overcome on merely rational grounds.” 419 U.S. 522, 533-34, 42 L. Ed. 2d 690. 700. 95 S. Ct. 692. 699-700.

       Although Taylor v. Louisiana involved the systematic exclusion of women from juries because of their gender and Payne involved the systematic exclusion of blacks because of their race, the holding and principles in Payne are applicable whenever the members of any discrete group are systematically excluded by the State during the selection of the jury solely because of their membership in the discrete group. People v. Payne (1982), 106 Ill. App. 3d 1034, 1037 n.2, 436 N.E.2d 1046, 1048 n.2.

       The list of cases in which the issue has been raised on appeal in some form continues to grow. (See People v. Newsome (1982), 110 Ill. App. 3d 1043; People v.

        Turner (1982), 110 Ill. App. 3d 519, 442 N.E.2d 637; People v. Gosberry (1982), 109 Ill. App. 3d 674, 440 N.E.2d 954; People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066; People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046; People v. Belton (1982), 105 Ill. App. 3d 10, 433 N.E.2d 1119; People v. Dixon (1982), 105 Ill. App. 3d 340, 434 N.E.2d 369; People v. Batteast (1982), 105 Ill. App. 3d 1201 (Rule 23 order); People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046; People v. Mims (1981), 103 Ill. App. 3d 673, 431 N.E.2d 1126; People v. Lavinder (1981), 102 Ill. App. 3d 662, 430 N.E.2d 243; People v. Clearlee (1981), 101 Ill. App. 3d 16, 427 N.E.2d 1005; People v. Vaughn (1981), 100 Ill. App. 3d 1082, 427 N.E.2d 840; People v. Tucker (1981), 99 Ill. App. 3d 606, 425 N.E.2d 511; People v. Allen (1981), 96 Ill. App. 3d 871, 422 N.E.2d 100; People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029; People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117; People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330; People v. Attaway (1976), 41 Ill. App. 3d 837, 354 N.E.2d 448; People v. Thornhill (1975), 31 Ill. App. 3d 779, 333 N.E.2d 8; People v. King (1973), 54 Ill. 2d 291, 296 N.E.2d 731; People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409; People v. Petty (1972), 3 Ill. App. 3d 951, 279 N.E.2d 509; People v. Fort (1971), 133 Ill. App. 2d 473, 273 N.E.2d 439; People v. Butler (1970), 46 Ill. 2d 162, 263 N.E.2d 89; People v. Cross (1968), 40 Ill. 2d 85, 237 N.E.2d 437; People v. Dukes (1960), 19 Ill. 2d 532, 169 N.E.2d 84; and People v. Harris (1959), 17 Ill. 2d 446, 161 N.E.2d 809.) In addition, the issue has been substantially raised in People v. Banks, 1st Dist., No. 79 — 1550, a case which has been argued but has not yet been decided. All but four of these cases were tried in Cook County.

       We note that in England, since 1305, peremptory challenges may be exercised only by the defendant. Except for challenges for cause, the Crown can only require jurors whom it wishes to challenge to stand aside from the panel until the defendant has exercised all his challenges. Then, if a jury has not been selected, the jurors who have stood aside will be used unless the Crown can challenge them for cause. The procedure of having a juror stand aside is not a peremptory challenge because, even when the procedure is employed by the Crown, which is seldom, the juror who has been stood aside may be actually seated as a juror after the defendant has exercised all his challenges. Specifically, 26 Halsbury’s Laws of England par. 624 (4th ed. 1979) states: “The Crown has no right to make peremptory challenges.” People v. Payne (1982), 106 Ill. App. 3d 1034,1039 n.4, 436 N.E.2d 1046,1050 n.4.

       Significantly, Swain makes the same requirement, except Swain holds that the requirement comes into play only after the prosecutor has practiced racial discrimination in the use of peremptory challenges in “case after case.” The term “peremptory challenge” does not mean “absolute” or “without any exception” under Swain, and we know of no case which holds that there are no exceptions to the prosecutor’s privilege to exercise peremptory challenges. The peremptory challenge privilege has always been subject to control by the trial court if it is used by the prosecutor in violation of a right guaranteed to the defendant under the Constitution. See Swain v. Alabama (1965), 380 U.S. 202, 224,13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 838.


author: PRESIDING JUSTICE STAMOS

text:
    THE TRAVELERS INSURANCE COMPANY, Plaintiff-Appellee, v. ROBERT R. ANDERSON COMPANY et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81—2345
    Opinion filed January 18, 1983.
    Rehearing denied March 10, 1983.

      Schaffenegger, Watson & Peterson, Ltd., and Crooks & Gilligan, Ltd., both of Chicago, for appellants.
    Johnson, Cusack & Bell, Ltd., of Chicago (John W. Bell and Thomas Fegan, of counsel), for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Robert R. Anderson Company (Anderson) and Cook County appeal from a judgment requiring them to indemnify the Travelers Insurance Company (Travelers) for payments made to Edward Burns in satisfaction of a judgment entered on a jury verdict finding Howell Tractor and Equipment Company (Howell), Travelers’ insured, liable in negligence for certain personal injuries sustained by Burns. Anderson and Cook County contend that post-judgment interest was improperly included in the indemnification award, that a new trial should be granted, and that the trial court erred in denying Cook County’s motion for a judgment n.o.v.

This is the second time that this case has been before this court. The facts most pertinent to the first appeal are set forth in detail in our prior opinion (see Burns v. Howell Tractor & Equipment Co. (1977), 45 Ill. App. 3d 838, 360 N.E.2d 377), and need be summarized only briefly here. Burns, the plaintiff in the original action, was injured while operating a machine called a vibratory roller which was leased from Howell for use on a Cook County road resurfacing project. The project was jointly supervised by Cook County and Anderson, a contractor hired by Cook County and Burns’ employer. Burns was using the roller to compact asphalt chunks taken from the old surface of the road so that the compacted asphalt could be used as a subbase for the new surface. The decision to use the asphalt chunks as a subbase had been made by Anderson and acquiesced in by Cook County. When the roller was driven over the large chunks of asphalt, it began to tilt and bounce. Gravel was spread over the chunks at a foreman’s direction. After this was done, the machine began to operate properly in areas where the gravel was thickly spread. Burns was injured when the roller went over an area where the gravel thinly covered the asphalt. The roller began to bounce and tip over, and Burns unsuccessfully attempted to put the roller in reverse. He leapt from the machine and the roller toppled over, pinning him to the ground.

Burns brought suit against Howell and Cook County to recover for his injuries. Howell filed a third-party complaint against Anderson. Howell and Cook County also filed cross-complaints against each other. The jury returned a general verdict in favor of Burns for $300,000 against Howell and Cook County, and a general verdict in favor of Howell in its actions against Cook County and Anderson. The jury also answered a special interrogatory finding that Howell was actively negligent prior to and at the time of the accident, and that that negligence proximately caused Burns’ injuries. The trial court entered judgment on the general verdict in favor of Burns, and granted a motion for a new trial to determine the liabilities of Howell, Cook County, and Anderson.

On appeal, Howell contended that judgment should have been entered on the general verdict in its favor against Cook County and Anderson; Cook County contended that it should have been granted a judgment n.o.v. in its favor; and Anderson contended that the answer to the special interrogatory should have controlled the general verdict in favor of Howell, and that judgment should have been entered in its favor accordingly.

We held that the answer to the special interrogatory was against the manifest weight of the evidence, that Cook County was not entitled to a judgment n.o.v., and that the trial court did not abuse its discretion in ordering a new trial on the cross-claims and third-party action rather than entering a judgment on the general verdict or the special finding.

After petitions for rehearing in this court and for leave to appeal to our supreme court were denied, Travelers paid the principal judgment of $300,000 to Burns. Travelers also paid Burns post-judgment interest in the amount of $62,975.34.

The parties proceeded to a second trial on their liabilities inter se, with Travelers entering the cause as the subrogee of Howell. During the pendency of the second trial, the trial court entered an order reciting that, as a matter of law, the post-judgment interest which was paid to Burns would not be included in any award of indemnity to Travelers. The second trial ended in a hung jury, and a new trial was ordered.

In the third trial, the jury returned a general verdict finding that Travelers was entitled to reimbursement from Cook County and Anderson. The trial court granted Travelers’ post-trial motion to fix the amount of the judgment at $362,975.34, the exact amount paid out to Burns. Anderson and Cook County appeal. Anderson contends that post-judgment interest is not recoverable in an action for indemnity and that another new trial should be granted. Cook County adopts the issues as raised and argued by Anderson, and also contends that it should have been granted a judgment n.o.v. in the indemnity action because its conduct cannot be considered to be active negligence when compared with the conduct of Howell.

Anderson and Cook County’s primary contention on appeal is that, as a matter of law, Travelers is not entitled to recover the post-judgment interest which accrued during the pendency of the first appeal of this case. No Illinois case has squarely faced the issue of whether post-judgment interest is recoverable by a tortfeasor/indemnitee. The Illinois rule is, however, that the indemnitee is entitled to recover the full amount of the judgment paid out to the plaintiff. (See Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 1058, 399 N.E.2d 216.) The plaintiff’s right to post-judgment interest arises by operation of statute rather than through any agreement between the parties. (Noe v. City of Chicago (1974), 56 Ill. 2d 346, 349, 307 N.E.2d 376.) That statutory interest is “made a part of the judgment.” (Ill. Rev. Stat. 1981, eh. 17, par. 6403, superseded by Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1303.) An implied indemnitee is not entitled to recover attorney fees and costs of the underlying suit under Illinois law (see Kerns v. Engelke (1979), 76 Ill. 2d 154, 166-67, 390 N.E.2d 859) because such items are expenses which are incidental to the defense of the earlier litigation rather than part of the judgment itself. In view of the rule that the indemnitee is entitled to recover the full amount of the judgment, we hold that the post-judgment interest pqid to Burns is properly recoverable by Howell. This holding is in accord with the weight of authority from other jurisdictions. See Prickett v. Hawkeye-Security Insurance Co. (10th Cir. 1960), 282 F.2d 294, 300; Singer v. Dorr (E.D. La. 1967), 272 F. Supp. 931, 937; Holley v. The Manfred Stansfield (E.D. Va. 1960), 186 F. Supp. 805, 811; Missouri, Kansas & Texas Ry. Co. v. Pacific Ry. Co. (1918), 103 Kan. 1, 17, 175 P. 97, 104; see also 42 C.J.S. Indemnity sec. 24, at 602 (1944); 41 Am. Jur. 2d Indemnity sec. 36, at 725-26 (1968); but see Otis Elevator Co. v. Maryland Casualty Co. (1934), 95 Colo. 99,110, 33 P.2d 974, 978.

Anderson also contends that Traveler’s should not be allowed to recover the interest on the judgment because its failure to pay the judgment immediately after it was entered was completely voluntary and amounts to a failure to mitigate damages, and that Travelers should not be allowed to profit at the expense of its indemnitors through its voluntary refusal to pay. In this regard, it should be noted that Travelers paid Bums the amount of the judgment and the interest thereon promptly after the appellate process was exhausted. The enforcement of that judgment had been stayed pending appeal. The stay was originally entered in response to the post-trial motions of Cook County and Howell, and was conditioned on the posting of a bond in the amount of $350,000. The trial court later determined that Cook County was entitled to a stay without bond pursuant to Supreme Court Rule 305(g). (87 Ill. 2d. R. 305(g).) It does not appear that a bond was ever posted. Travelers made prompt payment of the judgment as soon as it became enforceable. Cook County was jointly and severally liable fqr the amount of the judgment, and was instrumental in staying enforcement of the judgment without bond. Cook County has adopted Anderson’s argument concerning the unfairness of allowing Travelers to collect the interest when it had the use of, and presumably obtained a higher rate of return on, the money pending appeal, but Cook County made it possible for it and Travelers to retain the use of the money by obtaining the stay without bond, and Cook County as well as Travelers profited from retaining the use of the money owed to plaintiff. The statutory rate of interest is set by the legislature, and a complaint that a judgment debtor might obtain a greater rate of return on the amount of the judgment during the pendency of the appeal should be addressed to that body. Defendants cite Gatto v. Walgreen Drug Co. (1974), 23 Ill. App. 3d 628, 640, 320 N.E.2d 222, rev’d on other grounds (1975), 61 Ill. 2d 513, 337 N.E.2d 23, cert, denied (1976), 425 U.S. 936, 48 L. Ed. 2d 178, 96 S. Ct. 1669, for the proposition that an indemnitee should not be permitted to profit at the expense of his indemnitor. In that case the indemnitee and the plaintiff were parties to a secret agreement under which the plaintiff would enforce any judgment only up to a certain maximum amount. The court held that the indemnitee would not be allowed to recover the full amount of the judgment from the indemnitor because his true liability was limited to a much smaller amount by the agreement. The court allowed the indemnitee to recover only the amount that the plaintiff could collect under the agreement. In the instant case, the indemnitee is seeking only to recover the exact amount that it paid out to the plaintiff. The fact that Travelers withheld payment of the principal amount until such time as the judgment became enforceable is hardly an indication of bad faith on its part, and we find that allowing Travelers to recover the post-judgment interest that it paid to Burns works no unjust enrichment in Travelers favor.

Anderson also contends that the finding of the trial court in the second trial that post-judgment interest was not recoverable as a matter of law was improperly ignored by the judge in the third trial. That finding was made prior to the time that the second trial judge ordered a new trial. A new trial is a trial de novo, and the subsequent trial judge is not bound by the findings of his predecessor. (See Indiana Harbor Belt R.R. Co. v. Green (1919), 289 Ill. 81, 85-86, 124 N.E. 298.) We find that this contention is without merit.

Cook County contends that a judgment n.o.v. should have been entered in its favor because Travelers’ pleadings and the evidence at trial were not sufficient to establish that Howell’s fault was “passive” or “minor” as compared to the fault of Cook County. A judgment n.o.v. is appropriate only when “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) In the instant case, there was substantial evidence that Cook County was guilty of major fault. Cook County acquiesced in Anderson’s decision to use the roller to compact the asphalt. That work continued even after it became obvious that the work could not be performed safely. Evidence that the machine was defective or in disrepair was sharply disputed at trial, and the jury answered a special interrogatory asking whether Howell was guilty of major fault which proximately caused Burn’s injuries in the negative. The evidence in favor of Cook County is far from overwhelming. We find that Cook County was not entitled to a judgment n.o.v.

Finally, Anderson contends that Howell and Travelers “acquiesced” in the original jury verdict of negligence by failing to appeal that verdict, and that therefore they are in some way estopped from seeking indemnity by that acquiescence. Anderson concedes that the jury verdict was for simple negligence only, but asserts that Howell, as “a confessed supplier of a dangerous and defective piece of machinery,” should not be able to recover complete indemnity from a negligent employer. Anderson concludes that it is entitled to a new trial.

It is difficult to ascertain how a judgment of simple negligence against the indemnitee could estop it from seeking indemnification from its joint tortfeasors. Anderson attempts to recast this case in strict liability terms. If this action were in strict liability, it is true that Travelers might be entitled only to contribution rather than to full indemnity. (See Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 14-15, 374 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849.) Howell’s liability is based on negligence, however, and in attempting to characterize Howell’s failure to appeal the judgment as an admission of strict liability, Ander-. son ignores the fact that its counterclaim against Howell sounding in strict liability was dismissed at the close of the first trial for lack of proof, and no appeal was taken from that ruling. (Burns v. Howell Tractor & Equipment Co. (1977), 45 Ill. App. 3d 838, 845, 360 N.E.2d 377.) We find that Anderson’s attempts to recast this case in strict liability terms are meritless.

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

Affirmed.

BERLIN and HARTMAN, JJ., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFERY MOLSTAD, Defendant-Appellant.
    First District (2nd Division)
    No. 81-2770
    Opinion filed February 15, 1983.
    J. E. McKeigue, of Hazel Crest, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Marie Quinlivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant Jeffery Molstad was one of nine defendants indicted for attempted murder, two counts of aggravated battery, armed violence and criminal damage to property. Prior to trial, the armed violence count was nolle prossed by the State. At the close of the State’s case, the circuit court entered a finding in favor of codefendant Edward Kroll as to all counts. Following trial, codefendants Edward Rzab and Rodney Phillips were acquitted, and Molstad and four codefendants, David Kroll, Mark Schmidt, David Kent and Jose Flores, were found guilty of criminal damage to property and aggravated battery. Each was given concurrent sentences of 30 months’ felony probation and ordered to make restitution of $500.

The principal issues raised on appeal include whether: the circuit court improperly denied Molstad’s post-trial motion, supported by affidavits, to introduce the exculpatory testimony of six codefendants; Molstad was proved guilty beyond a reasonable doubt; and Molstad was properly ordered to pay $500 restitution on the criminal damage to property conviction.

For the reasons given below, we remand the cause for an evidentiary hearing on Molstad’s motions.

Only the facts relevant to disposition of this appeal need be recited. At approximately 11:45 p.m. on April 2, 1981, the victim, Tom Bonner, left Wendy Albritton’s house in his father’s car accompanied by Wendy and Sandy Bonner. In the vicinity of 145th and Kilpatrick, an orange pickup truck pulled in front of their car, blocking their progress. A blue station wagon joined the truck in front of their car and a brown pickup truck pulled in from behind. Approximately eight to 10 persons, some armed with bats and pipes, jumped out of their vehicles and attacked their car.

Albritton testified that she and Sandy got out of the car as the windows were being hit. She recognized David Kent, Mike Guerra, David Kroll and Mike Schmidt as some of the attackers. Eddie Rzab was the driver of the brown pickup truck. Geary opened the front door and hit the victim in the head with a bat. Jose Flores hit the victim. She saw an individual, known to her as Jethro (identified later as Molstad), hitting the back window of the car with “an object!” She had seen Molstad on about 10 occasions prior to the incident.

The victim testified he was first hit in the head while seated in the car. He got out of the car and ran until he fell into a ditch. He was hit repeatedly with a pipe and a bat. It was stipulated that the victim was hospitalized for six days and sustained multiple bruises of various parts of his body, traumatic lacerations of the skull, possible brain contusion and fracture of the right phalange. It was also stipulated that the victim told hospital personnel that he had been admitted to the hospital in the previous month with head and finger injuries.

Molstad testified that on April 2, 1981, he returned to his home between 10:10 and 10:30 p.m., sat in the living room for 30 to 45 minutes, and then went upstairs to bed. He did not leave his home or come downstairs for the rest of the night. His testimony was corroborated by that of his father and mother. His mother retired at the same time as Molstad. Patrick Smith testified that he last saw Molstad at about 10:15 p.m. in front of his house.

Molstad’s counsel filed a post-trial motion to reopen his case-in-chief or in the alternative for a new trial, in support of which he presented affidavits of four convicted codefendants, David Kent, David Kroll, Jose Flores, Mike Schmidt and one acquitted codefendant, Edward Kroll. None of the convicted affiants had been sentencted as of the time the affidavits were submitted. Molstad’s counsel subpoenaed a sixth codefendant, Edward Rzab, who had been found not guilty. Counsel for Rzab moved to quash the subpoena and stated that his client did not want to testify on this matter. The motion was allowed. The circuit court denied Molstad’s post-trial motions without an evidentiary hearing.

On appeal Molstad contends that the circuit court improperly denied his motions for a new trial or to reopen his case-in-chief. He admits that he was aware of the exculpatory information before trial, but contends that this testimony was not legally available to him during the trial. For this reason, he argues that his motion is similar to a motion for a new trial based upon newly discovered evidence. The State counters that Molstad meets none of the requirements which would authorize a new trial on grounds of newly discovered evidence.

Applications for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts and must be closely scrutinized. (People v. Reese (1973), 54 Ill. 2d 51, 59, 294 N.E.2d 288; People v. Nolden (1980), 91 Ill. App. 3d 532, 542, 414 N.E.2d 1124.) The matter is largely discretionary with the circuit court, and its determination will not be disturbed except in the case of a manifest abuse. (People v. Holtzman (1953), 1 Ill. 2d 562, 569, 116 N.E.2d 338.) To warrant a new trial, the new evidence must be of such a conclusive nature that it will probably change the outcome on retrial. (People v. Thompson (1980), 91 Ill. App. 3d 1111, 1117, 415 N.E.2d 648.) It must also be noncumulative, discovered after trial, and be of such a character that it could not have been discovered before trial by the exercise of due diligence. People v. Miller (1980), 79 Ill. 2d 454, 464, 404 N.E.2d 199.

Applying these principles and general precepts of due process to the instant controversy, it is clear that the proposed evidence could have demonstrated Molstad’s absence from the scene of the crime, which was material to the issue of his guilt or innocence, and thereby would have been of a conclusive nature.

Molstad argues that the evidence set forth in the affidavits was not available to him until after the trial; however, the record shows that he knew of the evidence before trial and decided as a matter of strategy to do nothing. Molstad’s counsel had a duty to move for a severance at that time, which he failed to do. (See People v. Lee (1981), 87 Ill. 2d 182, 186, 429 N.E.2d 461.) Nevertheless, codefendants/affiants asserted that they did not testify on Molstad’s behalf because such evidence would have damaged their own defensive interests. Additionally, there was no assurance that the motions would have been granted or that codefendants would have relinquished their fifth amendment rights. (Wharton’s Criminal Procedure sec. 403 (12th ed. 1975).) To be noted further is the fact that the affidavits were presented prior to sentencing, which lends credence to the argument that Molstad was not “*** attempting to practice fraud or imposition upon the court in order to escape the consequences of an adverse verdict.” People v. LeMorte (1919), 289 Ill. 11, 23, 124 N.E. 301, cited in People v. Holtzman.

The circuit court characterized the evidence contained within the affidavits as cumulative of alibi evidence; in doing so, however, the court overlooked the difference between proving that a defendant was at some other place than where the crime was committed and proving that he was not at the scene at that time. This difference was explicated by the supreme court in People v. Fritz (1981), 84 Ill. 2d 72, 417 N.E.2d 612. In Fritz, the supreme court reversed a conviction and remanded the cause for a new trial, in part because the distinction between proving alibi and proving absence from the scene was misunderstood by the circuit court. The supreme court stated:

“Since the State must prove that the defendant was present at the time an offense allegedly occurred (People v. Pearson (1960), 19 Ill. 2d 609, 614), a defendant may introduce the testimony of an occurrence witness that the witness did not see the defendant at the time and place in question. Such testimony is elicited to rebut the State’s case. It is not designed to establish that a defendant was at any other definite place.
We think there is a difference between attempting to prove that a defendant was in some definite place other than where the crime occurred, and attempting to prove that the defendant was not at the scene of the offense at the time it allegedly occurred.” (84 Ill. 2d 72, 78.)

Each affidavit submitted here purported to establish that the affiant: was charged with criminally attacking and injuring the victim; was either found not guilty, as in the case of Edward Kroll, or guilty, as in the cases of Kent, David Kroll, Flores and Schmidt; knew Molstad for a long time prior to the incident; then knew that Molstad was not present at the time of the attack and did not participate in it; and did not testify at trial or come forward earlier because of his own “defensive” position. These affidavits would not have established an alibi for Molstad. Furthermore, the evidence offered would have shown not where Molstad was at the time of the attack, in other words, the alibi evidence, but where he was not, quite a different proposition.

Affidavits relating to newly discovered evidence should be construed fairly as they may affect a defense or, as in this case, tend to rebut the State’s evidence (see Hamilton v. United States (D.C. Cir. 1944), 140 F.2d 679; 24 C.J.S. Criminal Law sec. 1484, at 284 (1961)) since the State was required to prove that Molstad was present at the time the offense was alleged to have occurred. (People v. Pearson (1960), 19 Ill. 2d 609, 614, 169 N.E.2d 252; People v. Fritz (1981), 84 Ill. 2d 72, 78.) Further, none of the affiants had testified at trial; yet the court stated, “Their credibility, however, is strained with this court,” without further inquiry or opportunity for examination into this aspect of the case. Because credibility is dependent not only upon the willingness of a witness to tell the truth, but also, his or her ability to observe, recall and relate his or her knowledge of a fact or event, it is difficult to perceive how the credibility of one who has not yet testified in a case can be considered “strained,” as characterized by the circuit court in the present case. See People v. Hilliard (1978), 65 Ill. App. 3d 642, 645, 382 N.E.2d 441.

For the foregoing reasons, it was error to dismiss the proposed evidence related to Molstad’s intended rebuttal of the prosecutor’s evidence concerning his presence at the scene without an evidentiary hearing. (See People v. Bland (1978), 67 Ill. App. 3d 716, 384 N.E.2d 1380, appeal denied (1979), 75 Ill. 2d 591.) Accordingly, the conviction must be vacated and the cause remanded for consideration of the proffered evidence of Molstad’s alleged absence from the scene of the crime at the time it took place, from the standpoint of rebuttal, rather than alibi evidence. If the circuit court chooses to accept the rebuttal evidence, it may enter appropriate orders respecting Molstad’s motions. If the court rejects such evidence, it may reinstate the conviction.

Assuming the circuit court reinstates Molstad’s conviction, other issues raised in this appeal will become operative and material and we consider them here in the event such contingency comes to pass. Molstad’s argument, that he was not proven guilty beyond a reasonable doubt of either criminal damage to property or aggravated battery, is without merit, in the event the circuit court believes he was at the scene. Albritton’s testimony was sufficient to support the conviction. (People v. Manion (1977), 67 Ill. 2d 565, 367 N.E.2d 1313; People v. Jackson (1973), 54 Ill. 2d 143, 295 N.E.2d 462.) Although Molstad did not actually strike the victim’s body, the circuit court could have reasonably found from Albritton’s testimony that he was legally accountable (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c)) for the blows inflicted by codefendants. Albritton’s testimony, if believed, that Molstad hit the back window of the victim’s car with an object, established that Molstad had “concurrent specific intent” to promote the commission of the aggravated battery offense. People v. Campbell (1979), 77 Ill. App. 3d 804, 396 N.E.2d 607.

In view of our disposition of this appeal, we find it unnecessary to address the other arguments raised.

For the reasons above stated, the judgment of the circuit court is vacated and remanded for an evidentiary hearing on defendant’s post-trial motions.

Vacated and remanded.

DOWNING, P.J., and PERLIN, J., concur.

       Indicted as Mike Geary.