author: JUSTICE ALLOY JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONTALYON JIMERSON, Defendant-Appellant.
    Third District
    No. 82—403
    Opinion filed December 20, 1982.
    HEIPLE, J., specially concurring.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

From his conviction of felony theft following a bench trial, the defendant, Dontalyon Jimerson, appeals. The defendant, who represented himself at trial, was given a three-year term of imprisonment. In this appeal, he raises only one issue: whether his sentence should be vacated and his cause remanded for resentencing because the trial court allegedly ruled erroneously that it must apply the penalty provisions for a Class 3 felony and failed to provide the defendant an opportunity to elect between specific sentencing alternatives. We affirm.

The factual basis for the defendant’s conviction was his taking of two boxes of cast aluminum cookware from a Montgomery Ward store on November 10, 1981. The value of the goods taken was $179.98. At the time of the offense, theft of goods valued in excess of $150 was charged as a Class 3 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 16— 1(e)(1), (e)(3).) Prior to the defendant’s trial in March 1982, the sentencing provisions of the theft statute were amended to read as follows:

“Sentence.
(1) Theft of property, other than a firearm, not from the person and not exceeding $300 in value is a Class A misdemeanor. A second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony.
* * *
(3) Theft of property from the person or exceeding $300 is a Class 3 felony.” (Ill. Rev. Stat. 1981, ch. 38, par. 16—1(e)(1), (3).)

Thus, under the provisions of the amended statute, which became effective January 1, 1982, the defendant’s theft offense is classified as a Class A misdemeanor rather than as a Class 3 felony.

The sentencing range for a Class 3 felony is two to five years and a maximum term of probation of 30 months. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—1(a)(6).) Class A misdemeanors are punishable by a term of imprisonment or probation of less than one year, while Class 4 felonies are punishable by a term of imprisonment of one to three years or a term of probation not to exceed 30 months. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005-8-3(a)(l), 1005-8-1(a)(7), 1005-6-2(b)(2), (3).) Because the defendant in the instant case had a prior theft conviction that was sufficiently established prior to sentencing, he was not eligible for Class A misdemeanor sentencing but for Class 4 felony sentencing under the statute as amended in January 1982.

At the conclusion of the defendant’s trial, at which he appeared pro se, the following exchange took place between the prosecuting attorney and the judge:

“The Court: Well, Mr. White, one question I had, that new statute that amends the jurisdictional amount for felony theft, when did that go in effect?
Mr. White: January 1st (1982).
The Court: So, at the time of this offense, the value in question is a hundred and fifty?
Mr. White: That is correct.”

The trial court then found the defendant guilty of felony theft. On April 30, 1982, the date set for the defendant’s sentencing hearing, the public defender was appointed to represent him, and the hearing was continued until May 10, 1982. Following two additional continuances, the defendant was sentenced to three years imprisonment on June 2,1982.

At the defendant’s sentencing hearing, his appointed counsel made an oral motion for a new trial, which was denied. No written motion for a new trial was ever filed in the trial court. The necessity for a written motion was excused by the trial judge, because the defendant’s counsel, who had not represented the defendant at trial, would have required a transcript of the trial proceedings before a written motion could be prepared.

In this appeal, the defendant contends that his sentence must be vacated and his cause remanded for a new sentencing hearing, because the trial court did not afford him an opportunity to elect the sentencing scheme under which he wished to be sentenced as required by section 4 of “An Act to revise the law in relation to the construction of the statutes,” which provides as follows:

“No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.” Ill. Rev. Stat. 1981, ch. 1, par. 1103.

The State first argues that the defendant has waived the issue he now raises on appeal by his failure to include it in his oral post-trial motion or in a written post-trial motion. Waiver is clearly not appropriate here, since the defendant’s nonspecific oral motion for a new trial preserved for review every proper ground for a new trial appearing in the record. People v. Irwin (1965), 32 Ill. 2d 441, 207 N.E.2d 76; People v. Biers (1976), 41 Ill. App. 3d 576, 353 N.E.2d 389.

Addressing the merits of the defendant’s contention on appeal, the State argues that the new theft statute changed a material element of the offense of theft, that is, the value of the goods taken necessary to raise an offense from a misdemeanor to a felony, and did not alter the penalty for theft. Thus, the State argues, the trial court properly sentenced the defendant for felony theft since the defendant’s offense constituted felony theft at the time it was committed, and the sentence for a felony theft was unchanged by the amendments to section 16 — 1 of the Criminal Code of 1961. In support of this proposition, the State cites to People v. Gibson (1976), 41 Ill. App. 3d 209, 354 N.E.2d 71, and People v. Poll (1979), 74 Ill. App. 3d 534, 393 N.E.2d 732, aff’d in part, vacated in part on other grounds (1980), 81 Ill. 2d 286, 408 N.E.2d 212.

In Gibson, the defendant was convicted of involuntary manslaughter. While his appeal was pending, the provisions governing involuntary manslaughter and reckless homicide were amended. These amendments reclassified the defendant’s behavior from involuntary manslaughter to reckless homicide. The reviewing court refused to reduce the defendant’s conviction from involuntary manslaughter to reckless homicide and to remand the cause for resentencing, because the court found that the amendments changed the nature of but not the penalty for the offense of involuntary manslaughter. The court concluded:

“We can find no authority holding that, if wrongful conduct is later defined as a lesser offense while the defendant’s appeal is pending, the defendant is entitled to have his sentence reduced to conform to the penalty provision for the lesser offense.” People v. Gibson (1976), 41 Ill. App. 3d 209, 211, 354 N.E.2d 71, 73.

Three years later, in People v. Poll, the reviewing court was faced with the same procedural sequence as in the present appeal: that is, an element of the offense was changed after the defendant had committed the offense but prior to his trial and sentencing. The defendant in Poll was charged with armed violence based upon aggravated assault. Prior to the defendant’s trial and sentencing, the armed violence statute was amended to remove misdemeanors, including aggravated assault. As in Gibson, the court in Poll rejected the defendant’s argument that this change in the substantive statutory law mandated a reduction in the nature of the defendant’s conviction and of his sentence.

In rebuttal, the defendant in the case at bar contends that, unlike Gibson and Poll, the statutory amendments here did not alter the offense but only the sentence imposed. He argues that his conviction for' theft remains substantively the same before and after the amendments to section 16 — 1 of the Criminal Code of 1961.

Authority exists for the proposition that any changes in sentencing provisions which are favorable to the defendant and which occur during the pendency of an appeal inure to the benefit of the defendant and require that the defendant be apprised of the changes and be' given an opportunity to elect the sentencing scheme under which he "will be sentenced. People v. Williams (1975), 60 Ill. 2d 1, 322 N.E.2d 819.

Applying the provisions of section 4 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1981, ch. 1, par. 1103) and the relevant case law to the facts of the case at bar, we conclude that the defendant is not entitled to a new sentencing hearing. The value of the goods taken is an essential element of the offense of theft. Public Act 82 — 318, section 1, which amended the theft statute effective January 1, 1982, to classify a Class 3 felony as the taking of goods valued in excess of $300 as compared with the previous statute classifying the taking of goods in excess of $150 as a Class 3 felony changed the substantive law of theft, not merely the sentencing provisions. We can find no authority nor has the defendant cited to any authority for the proposition that where wrongful conduct is later defined as a lesser offense, the individual convicted of the wrongful conduct is entitled to have his sentence reduced to conform to the penalties for the lesser offense.

For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

Affirmed.

SCOTT, J., concurs.

JUSTICE HEIPLE,

specially concurring:

On January 1, 1982, the demarcation line between misdemeanor theft and felony theft was increased from $150 to $300. Unchanged in the law was the provision making a second or subsequent offense of theft a felony regardless of amount. Ill. Rev. Stat. 1981, ch. 38, par. 16—1(e)(1).

The law also provides that when penalties are mitigated by a new law, the defendant is entitled to claim the benefit of the lesser penalty. Section 4 of “An Act *** in relation to the construction of the statutes” (111. Rev. Stat. 1981, ch. 1, par. 1103).

The change in the law and its application to a particular case is the basis for this appeal.

Defendant, Dontalyon Jimerson, shoplifted aluminum cookware from the Montgomery Ward store on November 10, 1981. The items taken had a fair market value of $179.88. He had a previous theft conviction. His trial took place on March 15, 1982. He was convicted and subsequently sentenced to a three-year term of imprisonment.

The judge based his sentence on the law applicable on the date of the offense. Based on the amount taken, which exceeded $150, the law made the offense a Class 3 felony punishable by imprisonment for a determinate term of not less than two years and not more than five years. Even if the amount taken had been less than the threshold $150, it would have constituted a Class 4 felony for this defendant since it was his second theft conviction. The Class 4 felony was and still is punishable by imprisonment for a term of not less than one year and not more than three years. The judge was explicit, however, that he was sentencing the defendant as a Class 3 felon for a three-year term of imprisonment.

The judge was aware of the change in the law but did not apply the new law since he did not believe that it was applicable.

The People argue that the judge was correct since the change in the law related to a change in an element of the offense rather than the penalty. This position is one of pure semantics. Though endorsed by a majority of this court, it cannot survive analysis.

In the interest of clear thought, the first step is to discard the use of labels. In the instant case, this means setting aside the labels of Class A misdemeanor, Class 3 felony and Class 4 felony. That is to say, let us look to the thing itself, the facts of the case. Regardless of label, a rose is a rose.

On November 10, 1981, the defendant stole property valued at $179.98. The then applicable law permitted imposition of a determináte sentence with a range of two to five years. In 1982, however, when the defendant was tried and sentenced, the penalty for theft of property valued at $179.98 was imprisonment for any term less than one year, excepting, however, second offenders. Regardless of the amount of the theft, second offenders could receive a determinate sentence of imprisonment of from one to three years.

It is clear that for identical conduct, there is a material difference in exposure to sentencing under the old and the new law. Under the old law, the defendant was exposed to a maximum sentence of five years; under the new law, to three. Had he not been a second offender, the spread would have been substantially greater. In such case, the maximum exposure would have been imprisonment of something less than one year under the new law.

As previously noted, the law provides that a defendant is entitled to claim the benefits of changes in the law which mitigate penalties. Since it is clear that the penalty was mitigated for the described conduct, it should be equally clear that the defendant was entitled to elect sentencing under the new law. He was not afforded that right.

Though purely coincidental, however, the three-year sentence actually imposed in reliance on the old law would have been a permissible sentence under the new law. That is to say, the three-year sentence imposed does not exceed the three-year maximum sentence under the new law. In short, though the judge misapplied the law, his sentence fit within the applicable law.

Was reversible error committed? I think not in this particular case for three reasons. First, the actual sentence imposed was within a permissible range. Second, a three-year sentence for a theft second offender is not unreasonable. And third, it is clear that the judge wanted to impose more than a minimum sentence. The judge thought that the minimum penalty was two years yet he imposed a three-year sentence. Thus, the judge’s misapprehension as to the law did not result in any actual prejudice to the defendant. Hence, the error is not reversible. Had the defendant not been a second offender, of course, the sentence would have to be reversed.

For the reasons stated, I specially concur with the result of the majority’s affirmance but not with the rationale.


source: Caselaw Access Project

author: JUSTICE HEIPLE JUSTICE SCOTT,

license: Public Domain

text:
    THE PEOPLE ex rel. JOAN KLINGELMUELLER et al., Plaintiffs-Appellees, v. FRED HAAS et al., Defendants-Appellants.
    Third District
    Nos. 81—734, 81—735 cons.
    Opinion filed December 20, 1982.

      SCOTT, J., dissenting.
    Gerald L. Timmerwilke, of Lewis, Blickhan, Longlett, & Timmerwilke, of Quincy, and Michael L. Neff and Stanley L. Tucker, both of Hartzell, Glidden, Tucker & Neff, of Carthage, for appellants.
    Daniel P. Nagan, of Bisbee & Nagan, of Macomb, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Hancock County declaring that the defendants had forfeited their positions as elected officials of the city of Nauvoo for failing to file economic interest statements while they were candidates pursuant to section 4A— 101(g) of the Illinois Governmental Ethics Acts (Ill. Rev. Stat. 1979, ch. 127, par. 604A—101(g)).

On April 7, 1981, defendant Fred Haas was elected mayor of Nauvoo and defendants Thomas Schmitz and Clarke Bergmeier were elected as aldermen. The defendants admit that they failed to file economic interest statements when they were candidates but since then have filed economic interest statements as elected officials. On July 8, 1981, the plaintiffs filed an application for leave to file a complaint in quo warranto. The application was allowed and the complaint was filed on September 22, 1981. On August 7, 1981, the plaintiffs also filed a complaint seeking a declaratory judgment. The two actions were consolidated and a bench trial was held on October 2, 1981. The court entered a declaratory judgment finding that the forfeiture penalty for failing to file an economic interest statement was mandatory and that the defendants had forfeited their offices. (Ill. Rev. Stat. 1979, ch. 127, par. 604A—107.) Having entered a declaratory judgment, the court found it unnecessary to rule on the complaint for quo warranto. After hearing post-trial motions by both sides, the court amended its judgment to include a judgment ousting the defendants from office pursuant to the plaintiffs’ complaint in quo warranto.

The defendants raise three issues on appeal but we need only concern ourselves with one, namely, whether the circuit court lacked subject matter jurisdiction due to the plaintiffs’ failure to exhaust their administrative remedies. We find that the plaintiffs waived any objection to the defendants’ status as candidates because they did not object to the sufficiency of the defendants’ nomination papers in the manner prescribed by statute.

Our decision today is a narrow one and is limited to a discussion of the statutory forfeiture provisions as they affect candidates who fail to file economic interest statements. We express no opinion as to how these provisions are to be enforced against office holders.

The status of a candidate for public office is temporary. It terminates when the candidate is either elected to the office, or defeated by an opponent. Until that time, the candidate’s eligibility for the office he seeks is governed by the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 1—1 et seq.) (hereinafter referred to as the Election Code). Section 10 — 5(3) of the Election Code requires that each candidate’s nomination papers include a statement of economic interest as described in the Illinois Governmental Ethics Act (Ill. Rev. Stat. 1979, ch. 127, par. 601—101 et seq.) (hereinafter referred to as the Ethics Act). The Election Code further provides that a candidate’s nomination papers are not valid if he fails to file a statement of economic interest. (Ill. Rev. Stat. 1979, ch. 46, par. 10—5.) Any challenges to the validity of a candidate’s nomination papers must be resolved according to section 10 — 8 of the Election Code. That section reads as follows:

“Certificates of nomination and nomination papers, and petitions to submit public questions to a referendum, being filed as required by this Code, and being in apparent conformity with the provisions of this Act, shall be deemed to be valid unless objection thereto is duly made in writing within 5 days after the last day for filing the certificate of nomination or nomination papers ***.” (Ill. Rev. Stat. 1979, ch. 127, par. 10—8.)

Section 10 — 8 goes on to designate various electoral boards to conduct hearings on any objections. In the present case, the Election Code designates the municipal officers electoral board as the proper tribunal to hear the plaintiffs’ objections. Reading these provisions as a whole, even though a candidate’s nomination papers are invalid due to his failure to file an economic interest statement, the papers are deemed valid unless an objection is made within five days after the last day for filing nomination papers. The plaintiffs in the present case skipped this procedure entirely. Instead, the plaintiffs waited until a month after the general election was held before taking 'any action.

In support of their actions, the plaintiffs contend that the forfeiture provisions of the Ethics Act are self-executing, relying on Illinois Attorney General’s Opinions, No. S-514 (Oct. 17, 1972). The plaintiffs argue that such a self-executing provision may be enforced through an election contest, quo warranto or by declaratory judgment. We disagree. The Ethics Act as it applies to candidates cannot be read in a vacuum. The specific requirements and procedures set out in the Election Code must also be taken into account. After careful consideration, we conclude that all objections to a candidate’s eligibility to run for office must be resolved by the procedures set out in the Election Code. It is vitally important that nomination objections be resolved at the earliest possible time. (Thurston v. State Board of Elections (1979), 76 Ill. 2d 385.) The Illinois Election Code sets out a procedure designed to accomplish that end and it must be followed.

Although to our knowledge, this is the first time that the forfeiture provisions of the Ethics Act have been applied to a candidate in this fashion, we are not the first Illinois court to hold that nomination objections are waived if they are not asserted before the general election. In Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 391, the Illinois Supreme Court held “ ‘that the failure of a candidate to object to his opponent’s certificate of nomination in the manner provided by statute waives the objection ***.’ ” The Election Code gave the plaintiffs ample opportunity to test the validity of the defendants’ nomination papers. In fact, section 10 — 10 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 10—10) sets out a procedure which clearly covers the objections raised by the plaintiffs:

“The electoral board shall take up the question as to whether or not the certificate of nomination or nomination papers or petitions are in proper form, and whether or not they were filed within the time and under the conditions required by law, and whether or not they are the genuine certificate of nomination or nomination papers or petitions which they purport to be, and whether or not in the case of the certificate of nomination in question it represents accurately the decision of the caucus or convention issuing it, and in general shall decide whether or not the certificate of nomination or nominating papers or petitions on file are valid or whether the objections thereto should be sustained and the decision of a majority of the electoral board shall be final subject to judicial review as provided in Section 10 — 10.1. The electoral board must state its findings in writing and must state in writing which objections, if any, it has sustained.”

To permit the plaintiffs to circumvent this procedure would work a great injustice on the defendants, who expended time, effort, and money on their campaigns, and on the public who have already made their choice at the polls. This is not the proper time or place for challenging the defendants’ status as candidates.

The plaintiffs make the final argument that the issue of laches, waiver or failure to exhaust administrative remedies was not properly preserved for appeal. Generally, matters such as waiver and laches must have been raised at the trial level and may not be raised for the first time on appeal. However, the subject matter jurisdiction of the trial court may be challenged at any time in the appellate process. Our reading of section 10 — 10.1 of the Election Code indicates that a circuit court has power to review the decision of an electoral board but has no original jurisdiction in such matters. (Ill. Rev. Stat. 1979, ch. 46, par. 10—10.1.) Therefore we find that the circuit court lacked jurisdiction over the subject matter of this suit and accordingly we reverse the judgment of the trial court.

Reversed.

BARRY, P.J., concurs.

JUSTICE SCOTT,

dissenting:

I disagree with the reasoning and the result in the majority opinion. The majority selects one provision of the Election Code (111. Rev. Stat. 1979, ch. 46, par. 10 — 8) which in substance provides that certificates of nomination and nomination papers filed as required by the Code shall be deemed valid unless objections thereto are filed within five days from the last day for filing said documents. The Election Code provides that:

“Such certificate of nomination or nomination papers in addition shall include as a part thereof, the oath required by Section 7 — 10.1 of this Act and a statement of candidacy for each of the candidates named ***. Each such statement shall set out the address of such candidate, the office for which he is a candidate, shall state that the candidate is qualified for the office specified and has filed a statement of economic interests as required by the Illinois Governmental Ethics Act ***.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 46, par. 10—5(3).

The foregoing statutory provisions recognize that the filing of statements of economic interests is required by the Illinois Governmental Ethics Act (Ill. Rev. Stat. 1979, ch. 127, par. 601—101 et seq.), and in my opinion the sanctions for failure to comply are those provided in the Governmental Ethics Act and not the Election Code. It should be noted with interest that attached to the defendants’ brief filed in this appeal is correspondence dated July 21, 1981, from the General Counsel for the State Board of Elections directed to a party to this appeal which expresses the same opinion. The subject matter of the letter is the failure to file statements of economic interests and the correspondence contains the following statement: “Please note, however, that the State Board of Election has no authority nor responsibility concerning the Governmental Ethics Act.”

The Ethics Act contains the following pertinent provisions:

“The following persons shall file verified written statements of economic interests ***
* * *
(g) persons who are elected to an office *** in a unit of local government as defined by the Illinois Constitution ***.” Ill. Rev. Stat. 1979, ch. 127, par. 604A—101(g).

Section 4A — 105 of the Ethics Act provides for the filing of statements of economic interests. (Ill. Rev. Stat. 1979, ch. 127, par. 604A-105.) The penalty provisions for failure to file such statement provides as follows:

“Any person required to file a statement of economic interests under this Article who willfully files a false or incomplete statement shall be guilty of a Class A misdemeanor.
Failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture of, office or position of employment, as the case may be.” Ill. Rev. Stat. 1979, ch. 127, par. 604A-107.

The parties to this appeal are in agreement that the defendants are required to file statements of economic interests. Such statements should have been filed on January 26, 1981. They did not file until after they were elected and after they had taken their oath of office. Their statements were filed on May 6, 1981, or approximately 100 days after they should have been filed.

The record fails to support a finding that the failure to file was wilful and the statements after being filed fail to show that the defendants have any conflict of interest between their economic interests and the duty they would perform as officials of the city of Nauvoo. The defendants are nevertheless in violation, albeit a technical violation, of the Illinois Governmental Ethics Act for failure to file.

The trial judge correctly pinpointed the issue as being whether the failure to file on time is a mandatory forfeiture of office or directory only and thereby the imposition of sanctions is within the discretion of the court.

In determining this question the majority opinion ignores article XIII, section 2, of the 1970 Constitution of the State of Illinois, which provides:

“All candidates for or holders of state offices and all members of a Commission or Board created by this Constitution shall file a verified statement of their economic interests, as provided by law. The General Assembly by law may impose a similar requirement upon candidates for, or holders of, offices in units of local government and school districts. Statements shall be filed annually with the Secretary of State and shall be available for inspection by the public. The General Assembly by law shall prescribe a reasonable time for filing the statement. Failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture of, office. This Section shall not be construed as limiting the authority of any branch of government to establish and enforce ethical standards for that branch.”

The sanction of forfeiture of office imposed by the Ethics Act is the same as that prescribed by our State Constitution. The record of the proceedings of the Sixth Illinois Constitutional Convention (3 Record of Proceedings, Sixth Illinois Constitutional Convention 1791— 93), makes it abundantly clear that it is mandatory upon the courts to declare a forfeiture of office in a situation such as is presented in the instant case.

Declaring that the defendants should forfeit the office to which they have been elected may appear to be a harsh sanction, however, be that as it may, that is the sanction set forth in the constitution of our State and in the provisions enacted pursuant thereto and which are set forth in the Governmental Ethics Act.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NARCISCO CRUZ, Defendant-Appellant.
    First District (2nd Division)
    No. 81—2920
    Opinion filed December 14, 1982.
    Steven Clark and Allan R. Stasica, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Narcisco Cruz, charged with possession of cocaine and of marijuana with intent to deliver, was tried by the court and found guilty of the former charge but acquitted of the latter. He appeals the conviction for unlawful possession of a controlled substance.

The issues presented on appeal are whether: (1) the circuit court improperly denied Cruz’ motion for a pretrial evidentiary hearing concerning the truthfulness of a police officer’s affidavit submitted with his request for a warrant; and (2) he was not proved guilty beyond a reasonable doubt.

At trial Officer Thomas Bridges testified that on May 14, 1981, at about 2:30 p.m. he and three other policemen armed with a search warrant went to the rear of Cruz’ third-floor apartment at 1626 N. Richmond in Chicago. When Bridges was two steps from the third-floor rear landing, Cruz ran out of his apartment, looked in Bridges’ direction, and threw a paper bag into the yard below. Bridges then seized Cruz while one of his partners, Officer Contino, retrieved the bag. They searched Cruz’ apartment and found a tinfoil packet containing a white or tan-colored substance in Cruz’ freezer and a utility bill addressed to Cruz at 1626 N. Richmond. The bag Officer Contino recovered contained a number of clear plastic bags in which were crushed green plants. The parties stipulated that the foil packet contained 1.2 grams of cocaine and that the clear plastic bags contained 20 grams of marijuana. Bridges testified that he never lost sight of the paper bag Cruz threw into the yard and that Contino had no trouble finding it.

Miguel Izairy, who lived in the second floor apartment in Cruz’ building, testified for the defense. He saw many other bags and other garbage strewn in the backyard. It took Bridges’ partners 10 or 15 minutes to find the bag. Three or four other people lived in Cruz’ apartment, but Izairy did not identify them.

No other evidence was adduced. The circuit court found Cruz guilty, as first noted, and sentenced him to 30 months’ probation.

I

Cruz first contends that he was denied due process of law because his motion for an evidentiary hearing on the sufficiency of the search warrant issued against him was denied, relying primarily upon Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 and, in his reply brief, upon People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269.

In Franks defendant was convicted of burglary, kidnaping and rape. The United States Supreme Court there held that where a defendant makes a substantial preliminary showing that an affiant intentionally or knowingly made a false statement in the affidavit upon which the judge relied in issuing the warrant, and that statement was necessary to the finding of probable cause, the defendant is entitled to an evidentiary hearing on the matter, if he requests one. The Supreme Court went on to say, however, that affidavits supporting warrants are presumed to be valid and that to mandate an evidentiary hearing, defendant’s attack must be more than conclusory and must be accompanied by an offer of proof supported by affidavit. The Supreme Court specifically stated that it was only the affiant’s veracity — not that of his informant — that could be attacked by such a hearing. By requiring “a substantial preliminary showing” the court intended to prevent defendants from abusing such hearings for discovery purposes or to delay trial.

In People v. Garcia, defendant was found guilty of possession and possession with intent to deliver cocaine. A judge issued a search warrant for defendant’s apartment, based on a policeman’s affidavit. Defendant moved to suppress the cocaine recovered in his apartment on the ground that the officer had lied in every statement made in his affidavit. Defendant asserted by affidavit that he could not have sold cocaine that day, nor could the policemen have seen his car parked in front of his apartment because he was driving to Chicago from Miami at the time with his wife and children. The appellate court reversed and remanded the case for an evidentiary hearing on the issue of the truthfulness of the policeman’s representations concluding that the defendant’s affidavit constituted the kind of substantial preliminary showing Franks required.

Cruz argues that he was entitled to an evidentiary hearing as well because he denied, by affidavit, that he had sold marijuana on the day affiant, Officer Clifford Berti, stated that a reliable but undisclosed informant told him he bought marijuana from Cruz at his apartment. In his affidavit Cruz averred that he was unable to state whether the informant or Berti lied. Defense counsel, at the hearing on the motion, also suggested that Cruz himself could be lying. Cruz’ lawyer stated that the informant upon whom Berti may have relied admitted to Cruz that he told police he bought some marijuana from Cruz two or three weeks before, but not on the day Berti claimed. Counsel reasoned that if true, then Berti lied; but without definitely knowing the informant’s identity, he could not be sure. Essentially, then, Cruz denies that he sold anyone drugs as charged. His affidavit was devoid of detail material to the charge as would have subjected him to the penalties of perjury (Ill. Rev. Stat. 1981, ch. 38, par. 32—2), which were the circumstances in Garcia. The Supreme Court in Franks appears to prescribe at least this much before it would require an evidentiary hearing on the matter. As the following authorities also demonstrate, the request for an evidentiary hearing is without support.

In addition to Franks, the State relies on People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553. In Coleman, defendant was charged with possession of controlled substances, which he denied. He also asserted that the policeman lied in the affidavit submitted to the judge with his request for a search warrant. Defendant’s motion for an evidentiary hearing was denied. The appellate court affirmed, holding that defendant’s general and unsupported denial of crucial facts in the policeman’s affidavit did not constitute the substantial preliminary showing required in Franks. The same situation exists in the instant case.

In People v. Anderson (1979), 74 Ill. App. 3d 363, 392 N.E.2d 938, also cited by the State, defendant was convicted of possession of controlled substances. There, a policeman watched an informant enter and leave defendant’s house by the back door while another policeman watched the front door and saw no one enter or leave by that door while the informant was in defendant’s house. Before the informant entered the house, the policeman had searched him and found no drugs on his person. After he left the house, the informant gave them the cocaine which he had bought from the defendant. On the basis of the informant’s and policemen’s affidavits recounting the above facts, a search warrant issued and police recovered controlled substances from defendant’s premises. Prior to trial defendant moved to quash the warrant and suppress the evidence claiming that the informant lied. Defendant also sought to interrogate the informant to determine whether the policemen had also lied. The circuit court denied defendant’s motion and the appellate court affirmed holding, as we hold here, that defendant’s general denial of the sale did not constitute a sufficient challenge to the veracity of the policemen’s affidavits.

II

Cruz next argues that he was not proved guilty beyond a reasonable doubt. As Cruz notes, the State must establish (1) that he had knowledge of the presence of the cocaine in his apartment, and (2) that the cocaine was within his immediate and exclusive control, before he can be convicted for unlawful possession of a controlled substance. (People v. Townsend (1980), 90 Ill. App. 3d 1089, 1093, 414 N.E.2d 483.) He contends that the State failed to meet its burden of proof because it presented no direct evidence that Cruz knew of the substance’s presence and because it also failed to establish that he handled, sold, or in any other way exercised control over the cocaine seized. In order to meet its burden, however, the State need not prove actual possession as Cruz suggests, but only constructive possession. People v. Townsend.

The leading case on this issue is People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361. In Nettles, the police found 30 small bags of drugs in a paper bag behind the front door of defendant’s apartment. Even though three other people were in the apartment when the police searched it, the trial court apparently gave little credence to defendant’s testimony that he did not know how the drugs got into his apartment. The supreme court noted that narcotics are rarely, if ever, found unaccountably in a person’s home. It held that the State •need only show that defendant controlled the premises in which the narcotics were found in order to establish unlawful possession, absent other facts or circumstances which might create reasonable doubt in the minds of the jury. (People v. Nettles (1961), 23 Ill. 2d 306, 308-09.) See also People v. Brownstein (1982), 105 Ill. App. 3d 459, 434 N.E.2d 505; People v. Munoz (1982), 103 Ill. App. 3d 1080, 432 N.E.2d 370; People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072; People v. Townsend (1980), 90 Ill. App. 3d 1089, 414 N.E.2d 483; and People v. Hester (1980), 87 Ill. App. 3d 50, 409 N.E.2d 106.

Cruz argues that because Izairy testified that three or four other people lived in Cruz’ apartment, the State failed to show that the cocaine was in his exclusive possession. Cruz’ position, however, is undercut by People v. Embry (1960), 20 Ill. 2d 331, 335-36, 169 N.E.2d 767, where the court held that “exclusive” possession does not mean “sole” possession. In Embry, defendant and five other people were present when the police searched defendant’s apartment and found drugs there. In People v. Ortiz, the court affirmed defendant’s conviction for possession of heroin. There, the police found the heroin in a cabinet in the basement of the three-flat which defendant owned and in which he also resided. Before searching his apartment and the basement below, the police had observed several men approach defendant, speak with him for a few moments, enter his apartment, and then leave a short while later. At trial, defendant’s son and a friend said that the cabinet in which the heroin was found was theirs — that defendant kept his things in another part of the basement. In light of this uncontradicted testimony, defendant argued on appeal that the State had failed to meet its burden of proof. The appellate court was not persuaded because: (1) defendant’s argument assumed the truth of his witnesses’ testimony, which the trial court was not bound to believe; and (2) even if believed, the court concluded it still could have found defendant guilty of possession because possession by one does not preclude a finding of possession by another. The court also noted that defendant will not defeat a charge of constructive possession by simply establishing that others have access to the place where the drugs were found, citing People v. Mack (1957), 12 Ill. 2d 151, 145 N.E.2d 609, where two other people were observed leaving defendant’s apartment shortly before narcotics were found there.

Cruz cites People v. Wolski (1975), 27 Ill. App. 3d 526, 327 N.E.2d 308, as a case “almost identical” on its facts in which the court held that the State had failed to meet its burden of proof. In Wolski defendant established: (1) that he and his brother shared the apartment in which marijuana had been found; (2) that he had not been to the apartment for a period of three days beginning the day before the search; and (3) that there were always a lot of people.going in and out of the apartment. These facts were sufficient to raise a reasonable doubt in the court’s mind as to defendant’s guilt and required that the State would have had to come forward with more evidence linking defendant to the contraband in order to prevail. See People v. Hester (1980), 87 Ill. App. 3d 50, 53-54, 409 N.E.2d 106, in which the court in considering Wolski came to the same conclusion.

In contrast, here Cruz was present and close when the cocaine was found. Further, just moments before, as the police were climbing the stairs to his apartment, he had run out onto the back porch landing of his apartment and thrown a bag that contained marijuana into the yard below. The only evidence that anyone else lived in the apartment was Izairy’s testimony that three or four other people, whom he did not identify lived there too. At a post-trial hearing, the trial judge indicated that he gave little credence to Izairy’s testimony in this respect. As the court noted in People v. Ortiz (1980), 91 Ill. App. 3d 466, 471, 414 N.E.2d 1072, a trial court’s findings should not be disturbed unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt concerning defendant’s guilt. In the instant case, the court’s assessment of Izairy’s credibility and the weight to be accorded his statement is supported by the evidence.

Cruz correctly cites People v. Ireland (1976), 38 Ill. App. 3d 616, 348 N.E.2d 277 for the proposition that mere knowledge of the presence of a controlled substance in one’s home does not, in and of itself, establish a voluntary possession of the requisite control. That case is unusual and distinguishable. There defendant admitted that he knew that marijuana was in his house but because they were in difficult financial straits his wife, over his objection, was selling it and had threatened to leave him if he did not permit her to continue. The court concluded that he had reluctantly acquiesced in her activities and, in reversing his conviction, stressed that possession must be voluntary.

Cruz contends that the only piece of evidence tending to show knowledge and control on his part was an electric bill addressed to him that the police found in his apartment the day they searched it. This argument is misleading. His affidavit in support of his motion for an evidentiary hearing asserts that Cruz rented the apartment as the tenant. At trial it was revealed by Izairy that Cruz rented and resided in the apartment searched. Further, Cruz’ lawyer admitted at the post-trial hearing: “I don’t think there is any question that it was established that it was his [Cruz’] apartment and that there was cocaine present in what I would consider a common area of the apartment [refrigerator freezer].” The court inferred knowledge and control from the fact that Cruz rented the apartment and resided there — not from the existence of the utility bill found there. It could be argued that the bill was not hearsay evidence if it were simply offered as circumstantial evidence that Cruz was receiving mail at that address, from which it might be inferred that he resided there as well. (See People v. Hester (1980), 87 Ill. App. 3d 50, 409 N.E.2d 106.) As the court noted in People v. Torres (1974), 18 Ill. App. 3d 921, 310 N.E.2d 780, a murder case, reversal is not warranted where the matter to which the hearsay testimony relates was proved by other properly admitted evidence.

From the foregoing, we conclude that the motion for an evidentiary hearing was properly denied and the defendant was proved guilty beyond a reasonable doubt. Accordingly, we affirm.

Affirmed.

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


author: PRESIDING JUSTICE STAMOS JUSTICE HARTMAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS KNIELING, JR., Defendant-Appellant.
    First District (2nd Division)
    No. 81—428
    Opinion filed November 23, 1982.
    HARTMAN, J., concurring in part and dissenting in part.
    Phillip J. Zisook, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Peter M. Delongis, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant Thomas Knieling was charged by indictment with attempted murder, aggravated battery causing permanent disability, aggravated battery causing permanent disfigurement, aggravated battery using a deadly weapon, aggravated battery causing great bodily harm, and armed violence based on the predicate felony of aggravated battery using a deadly weapon. All the counts of the indictment were based on the May 20, 1980, shooting of the complainant. After a jury trial, defendant was convicted of aggravated battery causing great bodily harm, aggravated battery using a deadly weapon, and armed violence. Judgment was entered on the armed violence conviction only, and defendant received a sentence of 10 years. On appeal, he contends that: (1) the conviction for armed violence must be reversed pursuant to People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627; (2) he was not proved guilty beyond a reasonable doubt because the State’s evidence was circumstantial and was not inconsistent with a reasonable hypothesis of innocence; (3) the trial court erred in limiting the testimony of one of defendant’s expert witnesses; (4) the trial court erred in failing to instruct the jury on the lesser included offense of reckless conduct on its motion; and (5) the trial court erred in denying defendant’s motion for a new trial which was based on affidavits which purport to reveal new evidence.

The evidence presented by the State at trial consisted of the testimony of the complainant and the two police officers who arrived at the scene shortly after complainant was shot. The complainant testified that she and defendant lived together in an apartment in Justice, Illinois. On May 20, 1980, she came home from work at some time after 4 p.m. and began to cook dinner. Defendant was already home from work when she arrived. While she was cooking, she and defendant began to argue about their respective mothers. Blows were exchanged, and defendant ran from the kitchen towards the bedroom. The complainant followed him with a pot of rice in her hand. Defendant reached the bedroom first, said “I’ve got something for you,” and came out of the bedroom holding a .357 Magnum revolver in his right hand while gripping his right wrist with his left hand. Defendant pointed the revolver at the complainant and she turned to flee. She was completely turned around when she was shot in the back. She fell forward on the floor. Defendant knelt down beside her and told her the shooting was an accident. He then made a telephone call for help. The complainant’s legs are paralyzed as a result of the injuries she received in the shooting.

Officer Slepicka of the Justice police department arrived at the apartment in response to a radio call. He looked through a window and observed the complainant lying on the floor and defendant lying on top of her. He entered the apartment and ordered defendant to get away from the complainant and to lie on the floor. Defendant told the officer that the shooting was an accident and that the gun was under the couch. The officer recovered a .357 Magnum from under the couch.

Defendant testified that he was employed as a Cook County Hospital policeman and as a security guard at a bank and that he carried a .357 Magnum while working. On May 20, 1980, he left work at 3:30 p.m. and purchased a quart of beer on the way home. When he arrived home, he poured a glass of beer and took it into the bedroom, where he changed clothes and put his uniform, gun, and holster across the foot of the bed. He woke up when he heard the complainant in the front of the apartment. He got up and went to the kitchen, where the complainant was cooking dinner. The complainant looked at him and asked him what was wrong with his eyes. He told her that he had just woke up. She asked if he had been drinking and he began walking away. The complainant grabbed his arm and he knocked her hand away. He walked to the bedroom and began to put away his uniform. As he picked up his gun, he looked up and saw the complainant in the bedroom doorway. She had a pot in her hand and a startled expression on her face. She turned away and began to run. He started to walk toward the bedroom door to see where she was going. He tripped over a plastic bag filled with laundry that was lying on the floor. He fell forward, striking his arm on the doorway, and the gun went off. He went to where the complainant was lying, told her it was an accident, and called for an ambulance and for the police. When he hung up the phone, Candice Thomas, the upstairs neighbor, entered the apartment. The police arrived shortly thereafter. Defendant stated that the shooting was entirely accidental, and that he had not struck the complainant or told her that he “had something for her.”

Candice Thomas testified that she was in her apartment on May 20, 1980, when she heard loud noises coming from the apartment below, followed by what sounded like a shot. She sent her daughter to the downstairs apartment to check on the complainant’s children and then she went downstairs herself. She entered the apartment and observed complainant lying on the floor. Thomas obtained the complainant’s mother’s phone number and called her to inform her that there had been an accident. After she made the call, the police and paramedics arrived. At some point the police asked Thomas how old the complainant was, and she went to the bedroom to look for the complainant’s identification. Thomas testified that there was a plastic bag containing laundry on the bedroom floor near the doorway, and that she pushed the bag out of the way as she entered the room.

Officer Slepicka was called as a rebuttal witness, he testified that Thomas stood near the entrance to the apartment during the time that he was in the apartment, that he did not see her go into the bedroom and that he saw no plastic bag on the floor when he went into the bedroom. Officer Weinberg, who arrived on the scene shortly after Officer Slepicka, testified that he saw no laundry bag in the bedroom, that he did not see Thomas go into the bedroom, and that she left the apartment before he secured the scene of the shooting.

Dr. Enrick Palacio, a radiologist, testified that the two X rays that were received into evidence indicated that the entry wound was on the right side of the complainant’s lower back and that the bullet traveled in an upward trajectory in the complainant’s body, coming to rest to the left of the spinal column. The defense also attempted to present the testimony of Professor Joseph D. Nicol as to the trajectory of the bullet when it struck the complainant. Professor Nicol is a forensic scientist specializing in criminalistics. The State’s objection to the opinion testimony of Professor Nicol was sustained and he was withdrawn as a witness.

Defendant was convicted of aggravated battery using a deadly weapon, aggravated battery causing great bodily harm, and armed violence. Judgment was entered on the armed violence conviction, and this appeal followed.

Defendant’s first contention on appeal is that his conviction for armed violence based on the predicate felony of aggravated battery using a deadly weapon (Ill. Rev. Stat. 1979, ch. 38, par. 12—4(1)) must be reversed because the conviction constitutes a “double enhancement” of the misdemeanor of battery because of the use of a deadly weapon in the commission of the offense, and therefore the conviction is impermissible under our supreme court’s holding in People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.

In People v. Van Winkle (1981), 88 Ill. 2d 220, 430 N.E.2d 987, the supreme court, expanding on the language of Harón, expressly held that aggravated battery using a deadly weapon can not serve as the predicate felony for a charge of armed violence. In the instant case, as in Van Winkle, the defendant was specifically charged with armed violence based on aggravated battery using a deadly weapon. Although the conviction for armed violence could have been presumed to have been based on the conviction for aggravated battery causing great bodily harm had the indictment been silent as to which count of aggravated battery the charge of armed violence was predicated on (see People v. Ross (1981), 100 Ill. App. 3d 1033, 1037, 427 N.E.2d 955), no such presumption is available where, as here, the indictment specifies aggravated battery using a deadly weapon as the predicate felony. See People v. Post (1982), 109 Ill. App. 3d 482, 486-87.

The State’s contention that defendant has waived this issue by failing to raise it in the trial court is meritless. An indictment for armed violence based on aggravated battery using a deadly weapon does not charge an offense. An indictment which does not charge an offense may be challenged at any time and the issue is not waived by a failure to raise it in the trial court. (People v. Gresham (1982), 104 Ill. App. 3d 81, 85, 432 N.E.2d 654.) Defendant’s conviction for armed violence must be vacated.

Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt because the evidence of his intent to harm the complainant was circumstantial and therefore any reasonable hypothesis consistent with innocence must be adopted. The central issue in this case is defendant’s intent. Intent is typically proved by circumstantial evidence. (See People v. Mikota (1971), 1 Ill. App. 3d 114, 118, 273 N.E.2d 618.) Circumstantial evidence is generally sufficient to support a conviction if it is inconsistent with any reasonable hypothesis of innocence. (People v. Rhodes (1981), 85 Ill. 2d 241, 249, 422 N.E.2d 605.) The complainant testified that as she approached the bedroom door she saw defendant pointing the revolver at her while standing with his left hand bracing his right. She then turned to run away and was shot in the back. The complainant’s observation of defendant is circumstantial evidence of defendant’s intent. The evidence that defendant was standing in a “combat” position while pointing the gun at the complainant is inconsistent with the theory that the shooting was accidental, and is inconsistent with any other reasonable hypothesis of innocence. We find that defendant was proven beyond a reasonable doubt.

Defendant’s next assignment of error is that Professor Nicol should have been allowed to give opinion testimony as to the trajectory that the bullet was following when it struck complainant. The following hypothetical question was posed to Professor Nicol:

“Assume a bullet is discharged from a .357 Magnum and strikes a twenty-two year old female in the right lower flank or back; assume further that this twenty-two year old female is standing in an upright position with her back towards the muzzle of the weapon when the bullet strikes her; assume further that this bullet lodges with a large fragment to the left of the mid-line posterior to the spinal canal at the level of T-seven and eight and that a smaller fragment is lodged in the spinal canal itself at about the same level; now, based on these facts do you have an opinion, based on a reasonable degree of scientific certainty, as to what the trajectory of this bullet would have to have been before it entered the back of this twenty-two year old female?”

The State objected to the question, on the basis that the record contained no evidence going to the type or weight of the bullet. The court sustained the objection to the question, noting that the record was also devoid of evidence as to whether the bullet struck a rib or other obstruction after it entered the body.

Our supreme court has addressed the question of the propriety of hypothetical questions to expert witnesses which omit material facts which could have a bearing on the opinion expressed:

“The more expedient and more widely prevailing view is that there is no rule requiring that all material facts be included. The safeguards are that the adversary may on cross-examination supply omitted facts and ask the expert if his opinion would be modified by them, and further that the trial judge if he deems the original question unfair may in his discretion require that the hypothesis be reframed to supply an adequate basis for a helpful answer.” Wirth v. Industrial Com. (1974), 57 Ill. 2d 475, 480, 312 N.E.2d 593, quoting McCormick, Evidence sec. 14, at 34 (2d ed. 1972).

Accordingly, we find that the trial court erred in refusing to allow the expert to answer the question as stated, because the proper procedure in this situation would have been to allow the State to alter the hypothetical on cross-examination. (See Joynt v. Barnes (1979), 71 Ill. App. 3d 187, 200, 388 N.E.2d 1298.) However, we hold that this error is harmless. The test of whether error is harmless or reversible is whether the reviewing court can say beyond a reasonable doubt that the error at trial did not contribute to the conviction. (See People v. Smith (1967), 38 Ill. 2d 13, 17, 230 N.E.2d 188.) In the instant case, defendant had already attempted to prove, through the testimony of Dr. Palacio, that the bullet was following an upward trajectory when it struck complainant. Although Dr. Palacio did state that the bullet followed an upward course through the body, he stated on cross-examination that it was “likely” that complainant had a rib at the point where the bullet entered her body. The colloquy between court and counsel concerning the propriety of the question propounded to Professor Nicol demonstrates that the court and counsel were aware that the hypothetical could be altered so drastically that the original opinion of the expert would be rendered meaningless. We find that the trial court’s refusal to allow this time-consuming process is harmless error where, as here, it is obvious from the record that the expert could not possibly give a persuasive opinion because of the speculative nature of the facts upon which he would have had to base such an opinion.

We also note that the defense theory concerning the trajectory of the bullet was presented to the jury through other testimony and was argued extensively. Defendant had established the possibility that the bullet was traveling in an upward trajectory through Dr. Palacio’s testimony that the bullet followed an upward path through the complainant’s body. Professor Nicol stated on direct examination that although he had some familiarity with the human anatomy, his knowledge of anatomy fell short of that of a doctor or an anatomist. Dr. Palacio’s testimony had already established that the upward trajectory of the bullet after entry did not necessarily reflect the trajectory of the bullet before it entered the complainant’s body. Professor Nicol’s lack of qualifications to give expert testimony concerning the human body would have made it impossible for him to give more than a vague and speculative opinion concerning the relationship of the trajectory of the bullet after it entered the body to its trajectory before it struck the complainant. We find that the exclusion of such an opinion, while error, is harmless because defendant was not denied his right to fully develop his theory of the case. (See People v. Moore (1980), 89 Ill. App. 3d 202, 210, 411 N.E.2d 579.) Dr. Palacio’s testimony established that the bullet traveled upward through the body, and Professor Nicol’s testimony could not have more fully apprised the jury of the possibility that the bullet was also following an upward path before it struck the complainant.

Defendant’s next contention is that the trial court erred in failing to give an instruction on the lesser included offense of reckless conduct on its own motion. All the instructions given to the jury were tendered by the State, and defense counsel tendered no instructions and made no objection to the instructions which were given. No error concerning the instructions was raised in defendant’s post-trial motion.

Supreme Court Rule 366(b)(2)(i) provides that no party may raise the failure to give an instruction on appeal unless he tendered the instruction at trial. (73 Ill. 2d R. 366(b)(2)(i); see People v. Underwood (1978), 72 Ill. 2d 124, 129, 378 N.E.2d 513.) We hold that this issue has been waived.

Supreme Court Rule 451(c) (73 Ill. 2d R. 451(c)) authorizes the reviewing court to overlook the waiver of. errors in jury instructions if the interests of justice require. The object of this exception to the waiver rule is to insure that the criminal defendant is not denied his right to a fair and impartial trial. (People v. Underwood (1978), 72 Ill. 2d 124, 130, 378 N.E.2d 513.) In the instant case, the defendant was not denied a fair trial by the court’s failure to offer an instruction on reckless conduct on its own motion. The entire theory of defendant’s case was that the shooting of complainant was an accident which occurred when defendant tripped over a laundry bag. No evidence was offered tending to show that the shooting was a result of reckless conduct. We also note that it is reversible error to instruct the jury on a lesser included offense, and thus permit the jury to reach a compromise verdict, when there is no evidentiary basis for the instruction. (See People v. Keagle (1967), 37 Ill. 2d 96, 102, 224 N.E.2d 834.) We hold that defendant was not denied a fair trial by the trial court’s failure to give a reckless conduct instruction.

Defendant’s final contention is that the trial court erred in refusing to grant a new trial based on affidavits submitted to the court with defendant’s post-trial motion. The affidavits are from defendant, his father, and Sheila Pamon, a probation officer who knew both defendant and the complainant. Defendant asserts that these affidavits constitute new evidence which requires the granting of a new trial.

Sheila Pamon’s affidavits memorialize two telephone conversations that she had with the complainant after defendant’s trial, during which complainant stated that she was told by police officers and the State’s Attorney that defendant would be sentenced to probation or at the most one year because of the shooting; that she had to testify as she did because she could not continue living with her mother if she did not; that she “heard the policemen lie and she wondered why the attorney did not ask her about these statements”; that had she been asked she would have testified that she did not believe that defendant had intended to hurt her; that if she had been asked to, she would have testified about the presence of the laundry bag in the bedroom; and that she had been told by the Attorney General’s office that if defendant was convicted, she would be entitled to a $15,000 award under the Illinois Victim’s Act.

Defendant’s father’s affidavit stated that he received a telephone call from the complainant after the trial of this case in which complainant stated that had she been asked, she would have testified concerning the presence of the laundry bag in the bedroom.

Defendant’s affidavit stated that the complainant called him on the telephone prior to trial and said that if he did not give her $5,000, she would tell lies on the witness stand, and that defendant did not give any sum of money to the complainant.

For a new trial to be granted on the basis of newly discovered evidence, the evidence

“must be of such conclusive character that it will probably change the result on re-trial, must be material to the issue and not merely cumulative, and must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. The burden is upon the applicant to rebut the presumption that the verdict is correct and to show that there has been no lack of diligence. Granting the motion is largely discretionary with the trial court except in case of manifest abuse.” People v. Hughes (1973), 11 Ill. App. 3d 224, 228, 296 N.E.2d 643.

We hold that the trial court did not abuse its discretion in denying defendant’s motion for a new trial. All of the statements which were alleged to have been made by the complainant after trial concern matters about which she might have been questioned at trial. Although defense counsel asserted at the hearing on the motion that he did not question the complainant on these matters because he did not know what her answers would be, this assertion does not serve to characterize those matters as evidence which could not have been discovered prior to trial. The complainant also could have been impeached at trial with the matter alleged in defendant’s affidavit. Nothing in the affidavits conclusively contradicts the factual content of the complainant’s testimony, although the matter alleged in the affidavits might impeach the complainant’s credibility as a witness. However, evidence which is merely impeaching, as opposed to conclusive, affords no basis for a new trial. People v. Johnson (1978), 60 Ill. App. 3d 183, 191, 376 N.E.2d 381; see People v. McCullough (1904), 210 Ill. 488, 518, 71 N.E.2d 602.

For the reasons stated herein, the judgment entered on the armed violence conviction is vacated, the aggravated battery convictions all affirmed, and the cause is remanded with directions to impose sentence on the aggravated battery convictions.

Judgment vacated in part; affirmed in part; and remanded with directions.

DOWNING, J., concurs.

JUSTICE HARTMAN,

concurring in part and dissenting in part:

I concur with the majority opinion except for that part finding harmless error in the trial court’s refusal to allow the testimony of Professor Nicol concerning the hypothetical trajectory of the bullet that struck the victim. I respectfully submit the circuit court committed reversible error when it did not allow the expert witness to answer the hypothetical question posed to him concerning the angle at which the bullet crippling the victim entered her body and I would reverse and remand for a new trial. Defendant contends that the shooting was an unfortunate accident. He testified that the gun accidently discharged as he fell over a plastic bag of laundry when his hand struck the side of the doorway leading out of his bedroom. The question posed sought to establish the angle at which the bullet entered the victim’s body because if it had been moving upwards when it struck her, this fact would have supported defendant’s testimony that the gun had gone off as he was falling over the bag. If he had aimed the gun and deliberately shot her in the back as the victim suggests, the bullet more probably would have entered her body at the approximate horizontal.

A defendant is entitled to every reasonable opportunity to present evidence which might tend to create reasonable doubt as to his guilt. (People v. Cole (1964), 30 Ill. 2d 375, 380, 196 N.E.2d 691.) The testimony which defense counsel had attempted to elicit from the expert in the instant case would have been positive evidence of defendant’s innocence, in corroboration with and in support of other defense evidence. Had that evidence been submitted to the jury, it would have had a much more direct bearing on his guilt or innocence than argument of counsel which the jury was instructed to disregard if not based upon the evidence. (People’s Instruction No. 3, Illinois Pattern Jury Instructions, Criminal, No. 1.03 (2d ed. 1981).) The fact that this theory was argued to the jury, as noted in the majority opinion, is therefore of little solace to the defense. Realistically, this court cannot weigh the effect of such evidence and as the supreme court held in People v. Watson (1966), 36 Ill. 2d 228, 232, 221 N.E.2d 645, one who is charged with a crime should be allowed to present a proper defense and, if the evidence offered is competent, it should be permitted to go to the jury for whatever it is worth. This is particularly crucial in the present case where the evidence was close. Had defendant’s expert witness been allowed to testify and had the jury believed him, it might very well have accepted defendant’s version of events, that the shooting was accidental, caused by his tripping over a plastic bag, which was seen in the bedroom doorway after the shooting by an independent witness, Candice Thomas, a neighbor. See, e.g., People v. Calhoun (1972), 4 Ill. App. 3d 683, 281 N.E.2d 363.

The State’s contention that this issue was waived when defendant failed to make an offer of proof, relying on Simon v. Plotkin (1977), 50 Ill. App. 3d 603, 365 N.E.2d 1022, and Tolefree v. March (1981), 99 Ill. App. 3d 1011, 425 N.E.2d 1247, appeal denied (1981), 85 Ill. 2d 582, is in my opinion without merit. In Tolefree, the appellate court held that no offer of proof is necessary where, as here, the evidence sought to be introduced or the questions asked in themselves demonstrate their purpose and materiality. See also Volvo of America Corp. v. Gibson (1980), 83 Ill. App. 3d 487, 491, 404 N.E.2d 406; Schusler v. Fletcher (1966), 74 Ill. App. 2d 249, 253, 219 N.E.2d 588, appeal denied (1967), 35 Ill. 2d 630.

For the foregoing reasons I would reverse and remand for a new trial.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES LINDGREN, Defendant-Appellant.
    Fourth District
    No. 17007
    Opinion filed December 23, 1982.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edmond H. Rees, State’s Attorney, of Carlinville (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

A 75-year-old man was robbed and murdered.

His body was mutilated.

After a second trial, Lindgren was sentenced to 85-135 years.

We affirm.

Lindgren was charged with murder, armed robbery, and robbery. His original conviction was reversed by this court because prior-bad-acts testimony was erroneously admitted. (People v. Lindgren (1979), 68 Ill. App. 3d 141, 386 N.E.2d 87.) The supreme court affirmed and the cause was remanded for a new trial. People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.

A change of venue was allowed and jury trial began on January 20, 1981. The jury returned verdicts of guilty and Lindgren was sentenced to concurrent terms of 25-75 years for armed robbery and 85-135 years for murder. No sentence was imposed on the robbery conviction.

On this appeal, Lindgren alleges that the State’s testimony referred to the exercise of his right to remain silent and his right to counsel, and informed the jury of his prior trial. Lindgren also claims: that he was denied the right to confront witnesses against him when his cross-examination of a State witness was limited; that letters admitted into evidence improperly called attention to his failure to testify; that the prosecutor’s closing argument was improper and deprived him of a fair trial; and that the cumulative effect of all the errors deprived him of a fair trial. Although Lindgren raises no question as to the sufficiency of the evidence upon which he was convicted, a somewhat extended review is necessary to the resolution of the issues he does raise.

FACTS

The State’s case rested largely on the testimony of Lindgren’s girlfriend, Ina Lewis. She testified that she and Lindgren spent the day together on April 17, 1977, traveling to Otter Lake, west of Girard, where Lindgren obtained a fishing license. They parted at 8:30 or 9 p.m., and the next time Ina saw Lindgren was when she was awakened by her mother and told that he wanted to speak to her. Ina’s mother testified that the time was 2:30 a.m.

Ina arose and went outside. Lindgren, whom Ina characterized as being drunk, stated that he had killed her paternal grandfather and asked her to return with him to the deceased’s residence in Girard. Lindgren was wearing an orange, blue, and white striped shirt, jeans, a blue or black jacket, and gloves. The shirt and gloves had blood on them. According to Ina, Lindgren pushed her into his car and drove towards Girard. On the way, she noticed a tire tool on the seat of the car and placed it on the floorboard.

Upon arrival at the deceased’s residence, Lindgren took Ina by the arm and led her, crying, to the house. She stood by while he searched, unsuccessfully, for a large sum of money reputed to be in the house. As they were leaving, defendant kicked the deceased in the ribs, made a crude remark about the deceased’s genitalia being amputated, and stated that the deceased had “jumped” when his body was mutilated.

The two then left, wiping their feet on the grass on the way to the car. On their return trip to Virden, they became stuck in a ditch. Lindgren left his jacket and gloves in the car and he and Ina sought aid. They were initially unsuccessful but they eventually got a ride to Ina’s mother’s home. Defendant cautioned Ina not to say anything and forbade her to turn on any lights.

Ina’s mother transported them to 995 North Grove, Virden — the residence of Ina’s maternal grandmother and where Ina and Lindgren periodically resided.

At North Grove, the two went directly to a bedroom where Lind-' gren produced a wallet containing nearly $400. Ina identified the wallet as belonging to the deceased. When she inquired about what Lindgren had done, he related that he had gone to the deceased’s house, entered with a key his stepson had stolen and given him, and demanded the deceased’s money. When he was ordered out, a struggle ensued, and Lindgren — who was carrying a tire tool — struck the deceased in the head.

Lindgren then removed his clothes and instructed Ina to burn them and the wallet. Upon her return from performing this task, Lindgren was standing at the kitchen sink washing himself. He told her to wash their shoes, which she did. The two then retired. The next morning, with the assistance of Ina’s mother, Lindgren found someone to extract his car from the ditch.

Ina testified that while waiting for the tow truck, Lindgren got something out of the passenger side of his car and walked a short distance down the railroad track that was nearby. Ina turned away and when she looked back, Lindgren was returning and the police were arriving. He told her to “be cool” and handed her a gun, wallet and keys. She put the wallet and gun underneath the seat of her mother’s car. Ina and Lindgren were both arrested and charged with murder, armed robbery, and robbery.

Ina’s testimony was substantially corroborated. The body of the deceased was as she described it. The cause of death was trauma to the head and resulting brain damage. The time of death was between 1 and 5 a.m. on April 18, 1977. The pathologist who testified for the State stated that in his opinion the amputation of the deceased’s genitalia after death could have caused his body to jump or quiver. Scientific analysis established that hair strands similar to a sample of Lindgren’s head hairs were found on the pants worn by the deceased. Blood on his jacket, the money found in his wallet, and the gun he gave to Ina was found to have similar characteristics to the deceased’s blood, but dissimilar from Lindgren’s. Lindgren’s body was examined following the arrest and was cut or scraped on the biceps in a manner consistent with injury in a struggle. Also, a wallet, a Levi Strauss button, a zipper tab, and zipper teeth were found in the trash barrel at 995 North Grove, Virden.

Defendant and Ina’s movements on the day of the crime were also corroborated. The operator of the concession stand at Otter Lake testified that Lindgren had purchased a fishing license from him at 5 p.m. Ina’s mother testified that she saw Lindgren at her house and transported Ina and him to 995 North Grove, picked them up there the next morning, and took them to look for a tow truck. Chief Dalton of the Girard police testified that he saw Lindgren in Girard at 2 a.m. on the 18th. Two men testified that they picked up Ina and Lindgren between Virden and Girard and took them to Virden. Neither they nor Ina’s mother saw Lindgren in good light that night; however, Ina’s grandmother and uncle substantiated Ina’s testimony as to the activities at 995 North Grove. Officer Malone testified that while on patrol at 3:40 a.m. on April 18, he noticed a fire in the trash barrel at that address and saw a shadow in the northwest window of the residence.

Physical evidence tending to support Ina’s testimony included: a set of keys fitting the deceased’s residence and his car found in the northwest bedroom of 995 North Grove; a handgun (which testimony established belonged to Lindgren’s stepson) and a wallet containing $399 found in Ina’s mother’s car. Further, excerpts from letters written by Lindgren and sent to Ina while he was in jail were admitted into evidence. In them, Lindgren told Ina where they were and what they did on the night in question. The excerpts also stated that Ina should memorize the facts contained therein and testify to them at trial so both she and Lindgren could “win.”

Lindgren’s attempt to establish an alibi was also evidenced by a letter he wrote to Joann Branson, indicating that she should tell the police she saw Ina and him in Auburn at 11 p.m. on the night of the murder, and Branson’s subsequent testimony that she had in fact not seen him at that time or place.

The testimony of Ina Lewis was not without some weaknesses, however. Ina testified that the charges against her had been reduced to obstruction of justice after she made a statement to the State’s Attorney and that she had been released on her own recognizance after pleading guilty to that charge. Also, Ina admitted that she hated her grandfather. She was unable to explain why — if Lindgren was covered with blood — he had openly sought her out, had sought aid when his car became stuck, and why — if she was afraid of him — she had never tried to run away or seek aid, and why she had written love letters to him while in jail.

The only evidence to contradict Ina, however, came from defense witness Cheryl Howell. She testified that she was incarcerated for a time with Ina and that during that time Ina admitted she had killed her grandfather and bragged that she was going to get away with murder by blaming it on her boyfriend. Ina denied making these statements.

I

The first issue raised by Lindgren regards the testimony of Trooper Michael Koval and Detective Randall Rushing. In the course of examination of these witnesses, the State inquired as to Lindgren’s initial interrogation. Trooper Koval related Lindgren’s comments (that he had been fishing all night and didn’t know what was going on) and indicated that Lindgren requested counsel. Rushing related that after being given Miranda warnings, Lindgren had also made a statement about being out fishing but had declined to say anything further.

It is clearly error to comment on a defendant’s post-arrest silence or his exercise of his right to counsel. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (holding that defendant’s exercise of his right, after being given Miranda warnings, was insoluably ambiguous); People v. Kennedy (1975), 33 Ill. App. 3d 857, 338 N.E.2d 414 (holding that it was plain error to elicit testimony of defendant’s exercise of his right to counsel and to comment upon it in closing argument).) However, both Doyle and Kennedy are factually dissimilar to the case at bar. In both cases, the offending testimony was argued by the prosecution as an indicia of guilt. Here, it is apparent that the prosecutor was in each instance not trying to elicit testimony that the defendant had exercised his constitutional rights, but that he had made statements prior to doing so.

It is not error to elicit a complete recitation of police procedure, even if the recitation includes reference to a defendant’s exercise of his constitutional rights, so long as the recitation is not argued to be indicative of guilt. (People v. LaSumba (1980), 92 Ill. App. 3d 621, 414 N.E.2d 1318, cert. denied (1981), 454 U.S. 849, 70 L. Ed. 2d 138, 102 S. Ct. 170; People v. Martinez (1980), 86 Ill. App. 3d 486, 408 N.E.2d 358; People v. Foster (1980), 81 Ill. App. 3d 915, 401 N.E.2d 1221.) Because the State did not elicit the testimony to establish guilt and did not capitalize upon it in closing argument, no error occurred.

II

Lindgren’s second assignment of error also involves testimony of Ina Lewis. On direct examination, she was asked when and how long she was incarcerated in connection with the murder of her grandfather. She responded, “Until April 18, until after Charlie’s trial it was October or sometime I think when I got out in November.”

This reference to defendant’s previous trial was inadmissible evidence of prior bad acts. Although defendant’s objection was a bit delayed, the error is preserved here. However, in view of the overwhelming evidence of defendant’s guilt, we find the error to be harmless. (See People v. Zynda (1977), 53 Ill. App. 3d 794, 368 N.E.2d 1079 (holding that repeated and unnecessary reference to a fingerprint card defendant had made on a previous occasion was error, but did not require reversal of his conviction).) The case for harmless error is even stronger here, because the reference was not unnecessarily repeated, but was isolated and apparently inadvertent. And, this situation is distinguishable from People v. Goodwin (1979), 69 Ill. App. 3d 347, 387 N.E.2d 433, which held that inadvertent references did not negate the harm to defendant. Here, the State was retrying a defendant whose first conviction had been reversed because this same type of evidence was admitted. The record revealed that all parties were otherwise very careful to avoid reference to the previous trial. It is unlikely that the reference was planned or premeditated. See People v. Nelson (1973), 12 Ill. App. 3d 67, 298 N.E.2d 256 (isolated reference to “another victim” did not require reversal).

Finally, the evidence against Lindgren was strong. The testimony of Ina Lewis directly implicated him and her testimony was substantially corroborated by other testimony, by physical and scientific evidence which linked defendant to the crime, and by letters written by defendant and introduced into evidence which show defendant’s consciousness of guilt in his attempt to establish an alibi. Reversal is not required by this error.

Ill

Lindgren’s next contention is that he was deprived of his right to confront witnesses against him and denied a fair trial when he was prohibited from cross-examining Ina Lewis regarding a juvenile adjudication.

A defendant’s right to confront the witnesses against him is fundamental to a fair trial. (Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065.) An essential part of the right to confront is the right to cross-examination. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038.) Further, Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, and People v. Norwood (1973), 54 Ill. 2d 253, 296 N.E.2d 852, indicate that a juvenile witness may be impeached by examination regarding pending juvenile matters or matters for which the witness was under the continuing supervision of the juvenile court. The stated rationale is that a defendant has the right to show bias on the part of a witness against him. That is, he may show that the juvenile witness is predisposed to testify favorably to the State in order to receive lenient treatment on the juvenile matters.

However, Davis and Norwood do not apply in the present situation. First, delinquency adjudications are admissible under certain circumstances to impeach a witness because In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428, eliminated the informalities and the departures from accepted standards for criminal trials in juvenile proceedings. Prior to Gault, juvenile adjudications were considered to lack the general probative value of a criminal conviction. The adjudication Lindgren sought to use was one of neglect. Section 4 — 6 of the Juvenile Court Act provides that the standard of proof and the rules of evidence in a civil proceeding apply to neglect proceedings under the Act. (Ill. Rev. Stat. 1981, ch. 37, par. 704—6.) Thus, the Gault rationale does not apply and the evidence is inadmissible. See People v. Puente (1981), 98 Ill. App. 3d 936, 424 N.E.2d 775.

Second, even if Lindgren had sought to use a delinquency adjudiction, the reason for the holding of Davis and Norwood is absent here. There is no showing that Ina Lewis expected leniency or favorable treatment in the juvenile proceeding because of her testimony. On the contrary, there was no showing that she was still under the authority of the juvenile court at the time of her testimony. See People v. Clark (1977), 55 Ill. App. 3d 379, 370 N.E.2d 1111, cert. denied (1978), 439 U.S. 858, 58 L. Ed. 2d 165, 99 S. Ct. 173.

Finally, in determining whether a defendant has been denied the right to confront witnesses against him, a court must look to what was allowed, not what was prohibited. (People v. Baugh (1981), 96 Ill. App. 3d 946, 422 N.E.2d 166.) If the jury is made fully aware of all the factors concerning the relevant areas of impeachment, there is no denial of the right to confront. The jury was told that Lewis had pleaded guilty to reduced charges and had been released on her own recognizance in exchange for her testimony. They were fully aware of any bias, interest, or motive to testify falsely. The evidence of Ina’s neglect adjudication would not have added significantly to their store of knowledge and no error occurred. See People v. Yancey (1978), 57 Ill. App. 3d 256, 372 N.E.2d 1069.

IV

Lindgren next argues that the admission into evidence of the letters he wrote to Ina Lewis while he was in jail impermissibly called attention to his failure to testify. Specifically, Lingren complains of the following excerpt:

“Study it, memorize it all. Study and memorize it all. The times and everything I said. Cause that’s what we did and if I get on the stand our storys [sic] are gonna have to be the same, unless you tell me you got scared and told em wrong.”

In general, comment upon a defendant’s failure to testify is reversible error. (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; People v. Potter (1974), 20 Ill. App. 3d 1049, 314 N.E.2d 201.) The error occurs even if the comment is indirect. (Potter.) However, this case falls within an exception to the general rule. Assuming that the letter constituted a reference to defendant’s failure to testify (and we do not hold that it does), it is not to be viewed with the same suspicion as a comment made in closing argument. People v. Seel (1979), 68 Ill. App. 3d 996, 386 N.E.2d 370 (comment made in opening statement).

Lindgren claims that when he did not take the stand, the jury was left to wonder why he stood mute. While this is undoubtedly true, the question is more likely planted in the jury’s mind by the failure to testify itself, and not any reference in a letter read during the prosecution’s case in chief. Thus, there was no error.

V

Lindgren also claims that he was denied a fair trial when the prosecution made the following remarks in rebuttal:

“Ladies and Gentlemen, you’ve heard defense counsel’s theory about this, and I suggest to you that they are pulling these inconsistencies like a magician pulls rabbits out of his hats. I also suggest to you that once you realize how the trick is done you find out that there’s a very simple explanation for it and what looks like magic is simply an illusion. They are trying to present illusions to you and to get you away from the actual facts and the facts of how these things were actually done.”

Counsel then attempted to explain inconsistencies raised by defense counsel and concluded:

“The question is do you disbelieve everything that has been presented here? Do you disbelieve the testimony of Ina Lewis and believe solely the testimony of Cheryl Howell? I would submit to you that the testimony of Ina Lewis has been undisputed.”

A reading of the cases reveals that it is not so much what the prosecutor says, but whether his comments find support in the record that determines whether or not error occurred. Compare People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880, and People v. Suggs (1977), 50 Ill. App. 3d 778, 365 N.E.2d 1118, with People v. Weaver (1972), 7 Ill. App. 3d 1104, 288 N.E.2d 669.

This court has adopted the same position. In People v. Moore (1979), 71 Ill. App. 3d 451, 389 N.E.2d 944, references to defense tactics as being a smoke screen and clouding the issues were held permissible because defense counsel had claimed a prosecution witness’ testimony was untrue. The court said that the defendant could not complain when the prosecution argued in response. And, in People v. Griggs (1977), 51 Ill. App. 3d 224, 366 N.E.2d 581, comments such as occurred here were held to be permissible when they were designed to point out to the jury that defense counsel’s argument was comprised of attempts to emphasize minor inconsistencies in the testimony of witnesses for the prosecution.

Taken in context, the prosecutor’s remarks here were proper. Defense counsel’s argument had pointed out minor inconsistencies in prosecution testimony. The State was simply responding to this argument. The response was based on the record, and while it did employ some poetic license, it was not inflammatory. See also People v. Hicks (1981), 101 Ill. App. 3d 238, 427 N.E.2d 1328, and People v. Ortiz (1976), 44 Ill. App. 3d 124, 357 N.E.2d 1270.

Lindgren further claims that the above-quoted portion of the prosecutor’s closing argument, in referring to the testimony of Ina Lewis as undisputed, improperly drew attention to his failure to testify. This argument is without merit. People v. Smith (1978), 67 Ill. App. 3d 672, 385 N.E.2d 44, held that there was nothing improper in characterizing a prosecution witness’ testimony as uncontradicted even though the defendant was the only person who could contradict it. Further, Smith held that a witness’ testimony may properly be characterized as undisputed even though it may contain minor inconsistencies.

While the credibility of Ina Lewis is subject to debate, the only evidence which can be said to dispute her testimony is that of Cheryl Howell. A fair reading of the prosecutor’s rebuttal argument reveals that she was simply trying to point out this fact to the jury and to argue that the testimony of Cheryl Howell was not worthy of belief. This being the case, the testimony of Ina Lewis could properly be characterized as undisputed.

Also, since it was the credibility of Cheryl Howell and not the defendant which was pitted against that of Ina Lewis, the prosecutor’s rebuttal cannot be construed as referring to the defendant’s failure to take the stand. Even if it can be so characterized, the State correctly points out that Lindgren did not object to this argument. Any error has thus been waived. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.) Further, as the evidence here was not closely balanced, and because this error is not of such a magnitude as to deprive defendant of a fair trial, there is no need to consider it under the plain error doctrine. Jackson.

VI

Finally, defendant argues that the cumulative effect of the errors which occurred at his trial require reversal of his conviction even if no single error was sufficient. The doctrine of cumulative error is an ethereal, elusive concept — one so subjective and intangible that it is infrequently applied and viewed with skepticism. See People v. Sullivan (1977), 48 Ill. App. 3d 787, 362 N.E.2d 1382.

Even so, People v. Patterson (1976), 44 Ill. App. 3d 894, 358 N.E.2d 1164, and People v. Killian (1976), 42 Ill. App. 3d 596, 356 N.E.2d 423, on which defendant relies, are distinguishable. In both cases, the defendant raised reasonable doubt as an issue on appeal. Here, he does not. In Killian, this court indicated that the effect of the doctrine was that small errors take on relatively greater significance where the evidence against the defendant is weak. Because the evidence against defendant here was strong, the doctrine does not apply-

This position is reinforced by People v. Ballard (1978), 65 Ill. App. 3d 831, 382 N.E.2d 800, cert. denied (1979), 444 U.S. 925, 62 L. Ed. 2d 180, 100 S. Ct. 262, which refused to find cumulative error where it did not appear that real justice was denied or that the verdict resulted from the error.

“However, we are of the opinion upon viewing the trial as a whole, that no single error committed warrants reversal, nor do we agree with defendants’ contention that their cumulative effect warrants reversal of the decision in this case. A conviction will not be reversed merely because error has been committed by the trial court unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error. (People v. Sanchez (1973), 11 Ill. App. 3d 1079, 297 N.E.2d 230.) In view of the amount of competent, relevant evidence of defendants’ guilt introduced at trial, the guilty verdict returned by the jury could not be attributed to the cumulative effect of any trial errors.” (65 Ill. App. 3d 831, 842, 382 N.E.2d 800, 809.)

This case presents a situation similar to Ballard.

Finding no merit in any of the issues raised by the defendant, we affirm.

Affirmed.

TRAPP and LEWIS, JJ., concur.