author: JUSTICE PERLIN

text:
    ROBERT E. DUFFEK, Plaintiff-Appellant, v. WILLIAM VANDERHEI, Defendant-Appellee.—(STATE SECURITY INSURANCE COMPANY, Garnishee-Defendant-Appellee.)
    First District (2nd Division)
    No. 80-3168
    Opinion filed February 9, 1982.
    Sandman, Levy & Moltz, of Chicago (Bernard W. Moltz, of counsel), for appellant.
    Brody, Gore & Fineberg, Ltd., of Chicago (Timothy A. Kulp, of counsel), for appellee State Security Insurance Company.
   JUSTICE PERLIN

delivered the opinion of the court:

In a jury trial plaintiff, Robert E. Duffek, obtained a $25,000 personal injury verdict against defendant, William Vanderhei. Judgment was entered on the verdict. The trial court subsequently granted defendant’s post-trial motion for judgment notwithstanding the verdict. On plaintiff’s appeal we reversed the judgment n.o.v. and remanded the cause with directions to enter judgment for plaintiff. Duffek v. Vanderhei (1980), 81 Ill. App. 3d 1078, 1089, 401 N.E.2d 1145.

On remand the trial court, on June 9, 1980, entered judgment for $25,000 for plaintiff. On June 11, 1980, the garnishee defendant, State Security Insurance Company, the insurance carrier for defendant, tendered to plaintiff a check in the amount of $25,843.04. This figure represented the principal on the judgment, interest from the date of the original judgment (April 27,1978) to the date that judgment was vacated and judgment n.o.v. was ordered (August 31,1978), and interest from the date judgment was rendered pursuant to this court’s mandate (June 9, 1980), plus certain costs. Plaintiff refused the tender because it did not include interest for the period during which the judgment was vacated.

Plaintiff filed a garnishment action against State Security, and a petition to compel the payment of interest which he claimed was due during the pendency of the appeal of the trial court’s judgment n.o.v. The petition sought $3,385.89 in interest. After a hearing, the trial court ruled that it did not have jurisdiction to modify or alter this court’s mandate by adding prejudgment interest to the judgment and denied plaintiff’s petition.

Plaintiff appeals presenting the following question for our review: when a judgment notwithstanding the verdict is reversed and remanded with directions to enter judgment on the jury’s verdict, does interest on that judgment accrue from the date of the jury’s verdict? Resolution of this question turns on the proper interpretation of section 3 of the Illinois Interest Act. Ill. Rev. Stat. 1977, ch. 74, par. 1 et seq.

Section 3 provides, in part:

“Judgments recovered before any court shall draw interest at the rate of 8% per annum from the date of the judgment until satisfied, * ° *. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of rendering judgment upon the same, and made a part of the judgment. The judgment debtor may by tender of payment of judgment, costs and interest accrued to date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of appeal, or other steps to reverse, vacate or modify the judgment.” Ill. Rev. Stat. 1977, ch. 74, par. 3.

Under section 3 interest accrues on a jury verdict from the date of the verdict. (Commissioners of Lincoln Park v. Schmidt (1942), 379 Ill. 130, 138, 39 N.E.2d 1012.) It is mandatory upon the trial court to ascertain the interest accruing upon a verdict and include it in the judgment even though there may be a lengthy delay between the return of the verdict and entry of judgment thereon. Schmidt; Piper v. Epstein (1945), 326 Ill. App. 400, 414-15, 62 N.E.2d 139; Reitz v. Yellow Cab Co. (1928), 248 Ill. App. 287, 296-97.

In Gnat v. Richardson (1941), 311 Ill. App. 242, 35 N.E.2d 409 (abstract), the jury returned a verdict in plaintiff’s favor in the amount of $5,000. Judgment was entered upon the verdict. The trial court thereafter granted defendants’ motion for judgment notwithstanding the verdict and plaintiff appealed. The appellate court reversed the judgment n.o.v. and entered judgment for plaintiff in the amount of $5,000 “together with interest at the rate of 5% per annum from the date of the verdict, 6 * On defendants’ appeal the supreme court affirmed the appellate court in the following language: “The judgment of the [a]ppellate [c]ourt 000 reversing the judgment of the circuit court 0 0 0 and entering a judgment for the amount of the verdict, with interest from the date thereof, is affirmed.” Gnat v. Richardson (1942), 378 Ill. 626, 630, 39 N.E.2d 337.

While garnishee defendant contends that Gnat “never addressed the issue of interest” and “provides no guidance as to the interest question,” our review of later cases interpreting Gnat indicates otherwise. In Proctor Community Hospital v. Industrial Com. (1971), 50 Ill. 2d 7, 276 N.E.2d 342, the court, citing Gnat, stated that “interest accrues from the date of the award [verdict], notwithstanding that at an intermediate level of review the award was overturned and on further review reinstated.” (50 Ill. 2d 7, 9-10.) Again, in Wirth v. Industrial Com. (1976), 63 Ill. 2d 237, 347 N.E.2d 136, the court said, “[t]his court has 0 0 0 held that interest accrued from the date of verdict (Gnat v. Richardson, 378 Ill. 626), ° * * notwithstanding that at an intermediate level of review [the verdict was] overturned and on further review reinstated.” 63 Ill. 2d 237, 240-41.

We believe that Gnat, as it has been interpreted by the supreme court, is dispositive of the issue presented in this appeal and requires reversal of the trial court’s order. Moreover, we find no support for garnishee defendant’s position either in Freeman v. Leader Mercantile Co. (1943), 318 Ill. App. 224, 47 N.E.2d 516 (abstract), or in the interpretation Federal courts have given the Federal interest statute (28 U.S.C. §1961 (1976)). (See Briggs v. Pennsylvania R.R. Co. (2d Cir. 1947), 164 F.2d 21, aff’d without consideration of this point (1948), 334 U.S. 304, 92 L. Ed. 1403, 68 S. Ct. 1039.) We have examined the full text of the abstract opinion in Freeman and note that the court did not discuss the issue presented in this appeal.

The Federal interest statute provides, in part, that interest “shall be calculated from the date of the entry of judgment, # ° The statute does not, on its face, allow interest from the date of a verdict. (But see Annot., 1 A.L.R.2d 479 (1948), and cases collected therein.) More significantly, Rule 37 of the Federal Rules of Appellate Procedure states that “[i]f a judgment is modified or reversed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to allowance of interest.” The Federal rule “apparently gives Federal appellate courts considerable discretion in determining the date from which interest accrues, which discretion is not expressly authorized in the Illinois statute.” Thatch v. Missouri Pacific R.R. Co. (1979), 69 Ill. App. 3d 48, 54, 386 N.E.2d 1180; see also People ex rel. Holland v. Halprin (1975), 30 Ill. App. 3d 254, 256, 332 N.E.2d 501.

The result we reach in this case is compatible with the legislative philosophy behind section 3 of the Interest Act which is intended to “make the plaintiff whole.” (Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518, 525, 202 N.E.2d 512; First National Bank & Trust Co. v. Aluminum Coil Anodizing Corp. (1980), 86 Ill. App. 3d 842, 844, 408 N.E.2d 477.) A party in whose favor a verdict for damages has been awarded should not be deprived of the use of his money during the pendency of an appeal necessitated by the trial court’s erroneous granting of judgment notwithstanding the verdict.

In the case at bar, defendant could have avoided the accrual of interest while the first appeal was pending by tendering payment of the jury’s verdict to plaintiff. Garnishee defendant’s argument that no tender was possible because defendant was not, at the time of the appeal, a “judgment debtor” as that term is used in section 3 of the Interest Act, is without merit.

“Obviously a judgment debtor who terminates the accrual of interest in the manner provided in the statute runs the risk that even though he prevails in his appeal, the appellee will have dissipated the funds and he will be unable to effect recovery of the sums paid. There is nothing in the statute to prevent [a nondebtor] appellee from taking the same risk # * Proctor Community Hospital v. Industrial Com. (1971), 50 Ill. 2d 7, 9.

For the foregoing reasons, the order of the trial court denying plaintiff’s petition for interest from the date of the original judgment on the verdict is reversed and the cause is remanded to the trial court with directions to award plaintiff all interest accruing on the jury’s verdict from the date of that verdict (April 27, 1978) to the date garnishee defendant tendered payment of the judgment (June 11, 1980), less any interest garnishee defendant has already paid plaintiff.

Reversed and remanded with directions.

DOWNING and HARTMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS KENDRICK et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 80-1271, 80-1305 cons.
    Opinion filed February 11, 1982.

      Thomas J. Royce, Ltd., of Chicago, for appellant Dennis Kendrick.
    Lawrence Wolf Levin, of Chicago, for appellant Francine Zeidman.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Mark E. Thompson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

At the conclusion of a jury trial in the circuit court of Cook County, defendants, Francine Zeidman and Dennis Kendrick, were found guilty of the offenses of delivery of a controlled substance (less than 30 grams of cocaine) (Ill. Rev. Stat. 1979, ch. 56*2, par. 1401(b)), and conspiracy (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2). In addition, defendant Kendrick was found guilty of possession of a controlled substance with intent to deliver (111. Rev. Stat. 1979, ch. 56*2, par. 1401(b)). Each defendant was sentenced to four years in the penitentiary and fined $2,000.

The defendants brought separate appeals which have been consolidated. On appeal, defendant Zeidman contends (1) she was not proved guilty beyond a reasonable doubt; (2) she was denied a fair trial by the State’s failure to comply with discovery; and (3) the trial court erred in sentencing her to four years because the court failed to determine properly whether a sentence of probation should have been imposed. Defendant Kendrick contends (1) the trial court erred in denying his motion for severance; and (2) he was denied his right to effective assistance of counsel because of a conflict of interest.

We affirm the convictions of both defendants. We reverse the sentences imposed upon the defendants and remand with directions that a new sentencing hearing be held before a judge different from the one who imposed the sentences in this case.

Background

Defendants’ arrests and convictions were the result of an undercover operation carried out by the Illinois Department of Law Enforcement. At the time of the alleged offenses, defendant Kendrick was a Chicago police officer and defendant Zeidman was employed by the Illinois Law Enforcement Commission as a public information officer (a non-law-enforcement position).

The principle undercover agent involved in the operation was Mark Hinchy. In August 1978, Hinchy learned from one of his sources, Thomas Buffo, that cocaine could be purchased from defendant Zeidman. Hinchy arranged a meeting with Zeidman in August 1978 to set up a purchase. Hinchy maintained intermittent contact with Zeidman for a month in an effort to purchase cocaine. Zeidman continuously informed Hinchy that she could get cocaine for him but that Hinchy would have to wait until one of her suppliers could get some. In early September 1978, Zeidman told Hinchy that she could get him one-half ounce of cocaine. Zeidman also told Hinchy that her supplier was a police officer.

On September 9, 1978, Hinchy telephoned Zeidman and set up the purchase for that night. By this time, Hinchy had learned that the supplier was a police officer named Hendrick or Kendrick who drove a silver Corvette. Zeidman and Hinchy made arrangements to make the purchase in the early morning hours of September 10, 1978. Zeidman told Hinchy that the purchase would have to be made at that time because her police officer supplier worked the afternoon shift and could not bring the cocaine until after midnight.

The significant events leading up to the purchase of cocaine and the arrests of defendants were as follows. Shortly after midnight, Hinchy went to Zeidman’s apartment in a high-rise building on Dearborn Street and gave her an envelope containing $1,350 in marked bills. Zeidman told Hinchy to call her at 2:15 a.m., when she would verify that the cocaine had arrived. Hinchy left and informed several agents who were on surveillance outside the apartment building that he had given Zeidman the money and the supplier would arrive shortly.

At approximately 1:15 a.m., the surveillance agents saw defendant Kendrick park his silver Corvette in front of the apartment building. Kendrick went inside the lobby for a few minutes and then returned to his car. Shortly thereafter, Zeidman and an unidentified woman came out of the lobby and went to the driver’s side of Kendrick’s car. Most of the surveillance agents were not in a position to see whether anything changed hands between Zeidman and Kendrick; however, one of them was close enough to see Zeidman reach toward the driver’s window. This agent could not verify that anything changed hands. Thereafter, Zeidman and the unidentified woman returned to the apartment building. Kendrick drove away.

At 2:15 a.m., Hinchy telephoned Zeidman. She told him the cocaine would be there in five minutes and Hinchy was to pick it up in 20 minutes. At approximately the same time, the surveillance agents saw Kendrick park his Corvette behind the apartment building. Kendrick went into the back of the building and was gone for several minutes before returning to his Corvette and departing. Some of the agents followed him.

At 2:35 a.m., Hinchy arrived at Zeidman’s apartment. She showed him the cocaine, which was tucked into a folded piece of paper inside a plastic bag. Hinchy asked for and received permission from Zeidman to use the bathroom. Once inside the bathroom, Hinchy pressed a button on a communication device which signaled to the agents outside that it was time to make an arrest. Hinchy came out of the bathroom and asked Zeidman if she had anything to weigh the cocaine. She said she only had a kitchen scale, and pointed it out to Hinchy. At this time, two agents knocked on the door and announced that they were police officers. Zeidman told Hinchy to get rid of the cocaine. The two agents entered, at which time Hinchy told Zeidman that he was a police officer. Zeidman was arrested, and Hinchy confiscated the cocaine and the scale as evidence.

Thereafter, the agents following Kendrick were told to make an arrest. Kendrick’s car was stopped and he was arrested. Kendrick and his car were searched. No cocaine and none of the marked money was found in the search. None of the money was ever recovered.

Besides the above evidence, which was testified to at trial by the agents, an expert also testified that the substance confiscated was cocaine. The expert also said that he found a fingerprint which matched Kendrick’s on the piece of paper in which the cocaine had been wrapped. Other evidence showed that Kendrick had been working the 4 p.m. to midnight shift as a Chicago police officer on September 9, 1978. Telephone company records were admitted to show that, on many of the dates Hinchy had contacted Zeidman to arrange a purchase, calls were made from Zeidman’s apartment to telephone numbers at two addresses, both registered in Kendrick’s name.

Defendant Zeidman did not testify on her own behalf. Defendant Kendrick testified that he had known Zeidman socially for a long time and had gone to Zeidman’s place on the day of the purchase because she had invited him to a party. When he arrived the first time and talked to Zeidman outside the building, she told him no one had yet arrived for the party and he should return later. When he returned the second time, he tried to contact Zeidman from the lobby but received no answer, so he left. Kendrick denied ever selling or using cocaine, and denied ever seeing Zeidman using or selling cocaine. He said he had talked to Zeidman on the phone many times before his arrest, but the calls were all social.

The jury found both defendants guilty of delivery of a controlled substance and conspiracy, and found Kendrick guilty of possession of a controlled substance with intent to deliver (defendant Zeidman had not been charged with this offense). The trial court sentenced both defendants to four years in the penitentiary and fined defendants $2,000 each.

Opinion

I

Defendant Kendrick

Defendant Kendrick alleges his pretrial motion for severance was improperly denied and he was denied the effective assistance of counsel because of his attorney’s conflict of interest. We will discuss these issues separately.

Severance

In a pretrial motion, Kendrick sought to be tried separately from his codefendant. Kendrick alleged he would be prejudiced by a joint trial because certain hearsay evidence that allegedly was admissible against Zeidman only (Zeidman’s repeated statements to Hinchy that her supplier was a police officer) would be used against him by the jury even if a limiting instruction were given. The court denied the motion, stating it believed a limiting instruction would be sufficient to protect Kendrick’s rights. At trial, Hinchy testified that Zeidman had told him many times during the course of this undercover operation that her supplier was a police officer. The court instructed the jury that this evidence was to be used by the jury only in its consideration of Zeidman’s culpability for the crimes alleged.

On appeal, Kendrick cited Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, alleging that the admission of Zeidman’s statements at trial denied Kendrick his right of confrontation (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8), and thus the motion for severance should have been granted to prevent the violation that occurred.

The problem with Kendrick’s argument is his assumption that Zeidman’s statements were inadmissible as evidence against him. In Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the Supreme Court held that a codefendant’s confession inculpating the defendant as a perpetrator of a crime was inadmissible as evidence against the defendant unless defendant could subject his codefendant to cross-examination at trial. The court held that the lack of such an opportunity to cross-examine the codefendant violated defendant’s right of confrontation. The court went on to hold that giving a • limiting instruction could not cure the violation of defendant’s right because it must be presumed that the jury used the evidence in determining defendant’s guilt.

The present case does not concern the use of a codefendant’s confession against defendant. It concerns statements made by a co-conspirator in the course and furtherance of the conspiracy. At least until 1980, such hearsay statements always were considered to be admissible against a defendant despite his inability to cross-examine his co-conspirator as long as other evidence of the conspiracy was presented. (People v. Thomas (1976), 38 Ill. App. 3d 689, 348 N.E.2d 285.) It was also the rule that the Bruton analysis did not apply to such statements. (People v. Davis (1970), 46 Ill. 2d 554, 264 N.E.2d 140.) Kendrick does not deny that other evidence of the conspiracy was presented in this case. The fingerprint evidence, Kendrick’s presence at the scene of the alleged offense, and the phone calls made between Zeidman’s phone number and his phone numbers on the days Hinchy contacted Zeidman during the undercover operation were sufficient other evidence to allow Zeidman’s statements to be used as evidence against Kendrick.

On June 25, 1980, the Supreme Court decided Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597,100 S. Ct. 2531, which fundamentally changed the manner in which any hearsay statement used to prove the truth of the matter asserted can be used against a defendant without violating his right of confrontation. In Roberts the court set out two rules affecting the admissiblity of all hearsay used against a defendant: (1) in the usual case, hearsay is admissible against the accused only if the State produces the declarant so he can be subjected to cross-examination at trial, or, if not produced, the State has made an initial showing that the declarant is unavailable to testify; and (2) if the declarant is not available for cross-examination at trial, the hearsay declaration is admissible only if it bears adequate “indicia of reliability.” As to the second requirement, the court said that “indicia of reliability” could be presumed if the hearsay declaration falls within a firmly established exception to the hearsay rule. The statements in the present case obviously met the second requirement.

As to the first requirement, this court held in People v. Hines (1981), 94 Ill. App. 3d 1041, 419 N.E.2d 420, that a showing of unavailability in areas in which it had not been required before Roberts was intended by the Supreme Court to have prospective application only. Since the trial in the present case took place in 1979, and since before Roberts statements by a co-conspirator made in the course and furtherance of the conspiracy were admissible without a showing of unavailability, Zeidman’s statements were admissible as evidence against Kendrick. Since Zeidman’s statements were admissible as evidence against Kendrick, the basis for his motion for severance did not exist. The motion was properly denied simply because the evidence was admissible against him. He was not entitled to a severance based on an allegation that admissible evidence would be used against him. (See People v. Davis (1970), 46 Ill. 2d 554, 264 N.E.2d 140.) We note that before the case went to the jury, the trial court rescinded its previous limiting instruction concerning the evidence and allowed the jury to consider Zeidman’s statements as evidence against Kendrick. This ruling was proper, as was its ruling denying Kendrick’s motion for severance.

Conflict of Interest

At the beginning of the proceedings in this case, both defendants were represented by one attorney. Following the denial of Kendrick’s motion for severance, the court was informed that the first attorney would thereafter be representing Zeidman and that a second attorney would handle Kendrick’s defense. This second attorney was introduced to the court, the court allowed him to take over Kendrick’s defense, and he conducted Kendrick’s defense throughout the trial. In a post-trial motion seeking a new trial based on the ineffectiveness of Kendrick’s counsel, the court was informed for the first time that Kendrick’s attorney was an associate working for Zeidman’s attorney. On appeal, Kendrick alleges that because of this conflict of interest he should be entitled to a new trial.

In cases such as the present one, though defendant need not show he was prejudiced by a conflict of interest concerning his attorney, he must show that an actual conflict of interest existed before he can be entitled to a new trial. (Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708; People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert, denied (1979), 444 U.S. 833,62 L. Ed. 2d 42, 100 S. Ct. 63.) In other words, a defendant must show that his attorney actively represented competing interests at the time of trial. Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708.

Nothing in the record indicates that Kendrick’s attorney actively represented competing interests at trial. Kendrick contends that the two defendants’ defenses conflicted, but does not state how they conflicted. The defenses of both defendants were essentially the same. Both simply denied they had committed a crime and based their case on the ability or inability of the State to prove them guilty beyond a reasonable doubt.

Kendrick contends that an abundance of evidence was presented to the jury which shows an obvious conflict, but does not point to any evidence that supports this claim. The crux of Kendrick’s argument is that, simply because both attorneys were from the same law firm and that firm represented both defendants at trial, we automatically should conclude an actual conflict of interest existed. This argument is insufficient to prove such a conflict. See People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42,100 S. Ct. 63.

Thus, we find that Kendrick’s argument is without merit.

II

Defendant Zeidman

Defendant Zeidman raises three isues on appeal: (1) she was not proved guilty beyond a reasonable doubt; (2) she was denied a fair trial by the State’s failure to comply with discovery; and (3) the trial court erred in sentencing her to four years.

Reasonable Doubt

Zeidman claims she was not proved guilty beyond a reasonable doubt of the offenses of delivery of a controlled substance or conspiracy.

The evidence on both offenses was overwhelming. The testimony of the agents conclusively established the offense of delivery of a controlled substance. Zeidman points to minor discrepancies in some of the agents’ testimony and alleges these discrepancies prove the agents’ testimony was inherently incredible. One of these discrepancies is that one of the arresting agents could not remember whether she saw the cocaine on the scale, on the kitchen counter, or on the kitchen table when she entered the apartment to make the arrest. Another discrepancy pointed out by Zeidman is that the two agents who knocked on the door to effect an arrest each testified that it was the other who announced that they were police officers. Obviously, these discrepancies do not give rise to an inference that the overall testimony of the agents was inherently incredible.

The evidence also proved the offense of conspiracy. EssentiaUy, Zeidman argues that no one actually'saw Kendrick deliver the cocaine to Zeidman and thus there was no proof of conspiracy. Zeidman’s argument ignores all the other evidence in the record. Zeidman repeatedly told Hinchy that her supplier for cocaine was a police officer. Kendrick’s fingerprint was found on the paper containing the cocaine. Zeidman met Kendrick on the night of the purchase. Telephone calls were frequently made between Zeidman’s phone and Kendrick’s phones on the days Hinchy contacted Zeidman seeking cocaine. Though no one actually saw or heard Zeidman and Kendrick agree to commit an offense, this was not necessary to prove conspiracy. People v. Graham (1971), I Ill. App. 3d 749, 274 N.E.2d 370.

Accordingly, we find that Zeidman was proved guilty beyond a reasonable doubt of the offenses of delivery of a controlled substance and conspiracy.

Discovery

At trial, Kendrick’s fingerprint card taken after his arrest was introduced as evidence both to prove Kendrick committed the crimes alleged and to prove Zeidman’s involvement in a conspiracy. Also introduced was the scale found in Zeidman’s apartment. Zeidman contends the admission of this evidence was error because the State did not produce this evidence during discovery.

As to the fingerprint card, Zeidman and Kendrick made a pretrial motion to suppress it as evidence at trial, which motion was denied. Thus, Zeidman knew it was going to be introduced as evidence at trial. The objection at trial was that the card should not be introduced as evidence because the State had failed to give defendants a photostatic copy of the card before trial. Discovery rules are designed to prevent surprise and unfair advantage. (People v. Goodman (1977), 55 Ill. App. 3d 294, 371 N.E.2d 168.) Even if we were to assume that there may have been a technical failure to produce the card for defendants before trial, Zeidman’s attorney had an opportunity to examine the card when the pretrial motion was made, and Zeidman could hardly allege any surprise or unfair advantage when the card was introduced as evidence at trial.

As to the scale, though it was not produced before trial, we cannot see how Zeidman was prejudiced by its introduction at trial. Its evidentiary value was minimal, and even if it had been suppressed the outcome of the trial would have been the same.

Thus, we find that Zeidman’s contention is without merit.

Sentencing

The offenses committed by defendants were Class 2 felonies. (Ill. Rev. Stat. 1979, ch. 56/á, par. 1401(b).) They were the first offenses for which either of the parties had ever been arrested. At the time of the sentencing hearing, both defendants were employed at different jobs from the ones which they held at the time the offenses were committed.

Besides the above factors, other factors in mitigation were argued before the trial court. The offenses did not threaten any serious physical harm to another. Defendant Kendrick had three children who relied on him for support. Defendant Zeidman had medical problems that required a doctor’s care. Counsel for defendants indicated that the defendants were willing to accept a fine so that the money lost by the State could be recovered.

In aggravation, the State argued that the crimes committed were very serious and that Kendrick, as a police officer, had breached his duty to prevent crime.

After hearing this evidence, the court imposed sentences of four years and fines of $2,000 on both defendants. The issue presented here is whether the court properly considered probation as a possible sentence.

Under section 5 — 6—1 of the Unified Code of Corrections, “[e]xcept where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstances of the offense, and to the history, character and condition of the offender, the court is of the opinion that: (1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or (2) probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1.

After hearing the evidence in mitigation and aggravation, the trial court imposed sentence on the defendants. The transcript of the trial court’s remarks in doing so indicates that the trial court ignored even the possibility of probation for either defendant. The court admitted that rehabilitation was not a factor in the case because both defendants could obviously comply with the law after their convictions. However, the trial court stated that what he had before him was a “kinky cop” and two people from excellent backgrounds. The trial court stated it could not give the parties probation “any more ® ” ” than the man on the moon.” essentially because “[i]f they were people from the ghetto they would be talking about hanging them.” The trial court said that it saw no difference between the defendants and implied that Zeidman, simply because she had worked for the Illinois Law Enforcement Commission in a non-law-enforcement position, had the same duty as Kendrick to prevent crime. Finally the trial court stated, in effect, that it had to impose a long sentence on both defendants to send a message to everyone that people like defendants should always go to jail.

It is apparent from the trial court’s remarks that the court was predisposed to giving the defendants prison terms even before the sentencing hearing began, and that the trial court failed to consider even the possibility of probation as required by law. Nothing in the trial court’s remarks indicates that it considered whether imprisonment was necessary for the protection of the public, or whether probation would be inconsistent with the ends of justice. See People v. MacRae (1977), 47 Ill. App. 3d 302, 361 N.E.2d 685, and subsequent opinion following remand, People v. MacRae (1979), 78 Ill. App. 3d 266, 397 N.E.2d 509.

Though defendant Zeidman is the only party who has challenged the sentence in this case, the error in sentencing defendant Kendrick is just as plain. Accordingly, we reverse the sentences imposed on both defendants and remand with directions that a new sentencing hearing be held before a judge different from the one who imposed the sentences in this case. See People v. Cross (1975), 27 Ill. App. 3d 785, 327 N.E.2d 81.

For the reasons noted, the convictions of both defendants are affirmed; their sentences are reversed and the cause remanded with directions.

Affirmed in part, reversed in part, and remanded.

JOHNSON, P. J., and JIGANTI, J., concur.


author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH PAVIC, Defendant-Appellant.
    First District (5th Division)
    No. 80-1307
    Opinion filed February 11, 1982.

      Patrick A. Tuite and David S. Mejia, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was convicted of rape, deviate sexual assault, robbery, burglary, and home invasion. (Ill. Rev. Stat. 1979, ch. 38, pars. 11 — 1, 11 — 3, 18 — 1, 19 — 1, and 12 — 11, respectively.) The trial court sentenced him to serve three 25-year prison terms and two 14-year terms, to run concurrently. On appeal, defendant contends that (1) by erroneously admitting “modus operandi” evidence that defendant had committed two other rapes, the trial court denied defendant a fair trial; (2) because the State failed to prove the elements of robbery and home invasion, the convictions on those counts must be reversed and the defendant resentenced; (3) the court erred in tendering to the jury five “guilty” verdict forms and only one “not guilty” form, which may have confused the jury; and (4) newly discovered evidence requires that defendant be granted a new trial.

Defendant was indicted for the rapes of three women, C.R., K.K., and G.S. The prosecutors elected to try defendant on the third indictment only and to call the other two women as witnesses for the prosecution. In a pretrial motion in limine defendant sought to bar the testimony of the other two alleged rape victims. The trial court denied the motion, holding that the evidence was admissible to show defendant’s modus operandi or identity.

The trial began on February 4, 1980. The complaining witness, G.S., testified as to the events of February 16,1979, when she was raped in her apartment. After leaving work at 5 p.m., she stopped at a grocery store two blocks from her home. She arrived at her second floor apartment in the 1300 block of West Greenleaf in Chicago at 7 p.m. After showering, dressing, and straightening the apartment she began to cook dinner. She partially opened her back door because the kitchen had become warm. Approximately 15 minutes later the electricity in her apartment went off. She then went upstairs to a neighbor’s apartment and her neighbor accompanied her to the basement where they found that two electrical circuit breakers were in the “off” position. After returning to her apartment, G.S. entered her bedroom and began to brush her hair. It was now about 8 p.m. Noticing a strong odor that smelled of stale clothes, she looked around for the source. As she approached the bedroom closet the door flew open and a man leaped out. G.S. later identified the man as defendant, and testified that she had a clear view of his face.

G.S. further testified that after he came out of the closet, defendant grappled with her and they travelled across the room until she fell on the radiator. Defendant fell on top of her and grabbed her throat, choked her, and told her to stop screaming or he would stab her. He also demanded money, which she said was in her purse. Defendant then pulled her up from the floor and threw her across the bed, where she lay on her back at a right angle to the normal sleeping position. Still choking G.S., defendant removed her jeans and pulled her shirt up. He also pushed a pillow over her face. Defendant then pulled down his own pants and had sexual intercourse with the victim for several minutes. During this time she pushed the pillow off her face several times. Next defendant stood, pulled G.S. up by the hair and neck, and forced her to perform fellatio on him. Afterward, he pushed her back on the bed on her stomach and again forced her to have sexual intercourse for several moments. After he finished, he left her on the bed and went into the living room. She heard him rummaging around. He reentered the bedroom three times to say to the victim that he knew he had done something wrong and to ask if she would turn him in.

After defendant left, G.S. went to her neighbor’s apartment to call the police. She discovered later that $35 in cash and a number of record albums were missing from her apartment. When police arrived she described her assailant as a white male in his early twenties, approximately 5'8", 120 pounds, with a full, round face, wearing a blue knit cap and a khaki jacket. Subsequently, she picked defendant’s photograph from a book of photographs and also identified him in a lineup.

The physician who attended G.S. when she arrived in the emergency room of the hospital testified that she had appeared to be extremely agitated. Also, she had bruises, scratches, and abrasions on her body. The doctor further testified as to the results of a pelvic examination he performed on G.S. According to stipulated evidence, a smear taken from G.S. indicated the presence of spermatozoa in her vagina.

Police officers also testified as to their investigation of the February 16, 1979, occurrence and to their subsequent procedures relating to the photo identifications and lineups.

Next to testify was C.R., who related the circumstances of February 5, 1979, when she was raped in her apartment in the 1300 block of West Greenleaf. She left work at 5 p.m., stopped at the grocery store, and then returned to her apartment. She went into the bathroom to undress. She then heard a sound and saw a man enter her apartment through the door. She later identified this man as defendant. C.R. closed the bathroom door and grabbed a back brush to use as a weapon. Defendant forced his way into the bathroom and grabbed her around the throat. He also threatened to stab her, although he did not show her a knife. He then forced her into the bedroom and onto the bed. He held her on her back across the bed at a right angle to a normal sleeping position. After she refused to remove the thermal underwear she was wearing, he choked her again and pulled them off. He also fondled her and kissed her breasts. Defendant then unfastened his own pants and had sexual intercourse with her. Defendant fastened his pants and told C.R. to put the pillow over her head, but instead she pulled the covers up over her eyes. She heard him tell her to stay there. After about 20 seconds she heard defendant leave. Then she called her sister from a neighbor’s apartment.

Subsequently, C.R. talked to police and identified defendant from photographs and a lineup. In her testimony at trial, she recalled that her attacker was 18 to 20 years old and wore a blue knit cap, a nylon jacket, and a blue T-shirt with the word “Superkid” across the front.

The State’s final witness was K.K. She testified that on January 29, 1979, she left work at 5 p.m. and went to her third floor apartment on West Farragut in Chicago. The light on the third floor landing was out and when she opened the door to her apartment, she was grabbed around the neck and choked from behind by a man who pushed her into the apartment. He kept pushing her, through the kitchen and dining room. She turned around and saw her assailant’s face. In court, she identified defendant as her attacker. She said he wore a blue jacket, jeans, and a blue knit cap. She also described him as being 5'8" tall and approximately 24 years old.

After shoving K.K. into the bedroom, he pushed her onto the bed, at a right angle to the normal sleeping position. He slapped her when she tried to resist him. Then he removed her clothes and put a pillow over her face. He lowered his own pants and lay on top of K.K., kissing and fondling her. She removed the pillow from her face, and he slapped her again. He put his fingers in her vagina and then had sexual intercourse with her. Afterwards, he slapped her again and told her to shut up.

Defendant then left K.K. and entered the kitchen. He came back into the bedroom and demanded all of her money. He left and again returned, to tell her to shut up and stay put. After a few minutes, K.K. got up, saw that defendant had left, and called the police. She noted that her wallet was gone from her purse. She subsequently talked to the police and identified defendant from some photographs. She also identified him in a lineup.

After the State rested, defendant took the stand on his own behalf. His testimony, and that of fifteen witnesses, related to his alibi defenses to the rapes of.G.S., C.R., and K.K. Regarding the January 29, 1979, charge involving the complaining witness, defendant testified that he had purchased a van that night and had worked on it with two friends, in the parking lot of the Big Pit restaurant until about 7 or 7:30 p.m. Then they went into the restaurant and stayed until about 8:30 p.m. From that time until about 10:30 or 11 p.m., defendant and six of his friends rode in the van for awhile. They returned to the restaurant at 11 p.m.

Defendant further testified that on the evening of February 5, 1979, he was with his girlfriend most of the day and evening. Defendant’s girlfriend, her mother, and anothér person testified that defendant was at their house from 7 p.m. to midnight.

On February 16, 1979, defendant spent most of the night with friends, driving around in his van and drinking beer. According to the testimony of various defense witnesses, he was in the company of others continuously from 12 noon until about 11 or 11:30 that evening.

Defendant also denied owning a blue knit ski cap or a T-shirt that had “Superkid” written on it. He admitted owning a green Army jacket because he was in the Marines Corps Reserves. Other defense witnesses, personal friends of defendant for 6 years, stated that they had never seen him wear a hat of any kind and had not seen him in a blue ski jacket. One witness stated that defendant bought a “Superkid” T-shirt on January 30, 1979, but another witness said defendant owned a T-shirt that had “The Kid” printed on it.

Other evidence indicated that defendant was 18 years old at the time of the offense. He lived within three blocks of the apartments where G.S. and C.R. were raped. On January 31,1979, defendant had been placed on probation for burglary.

After both sides rested, an instruction conference was held. The State submitted guilty verdict forms for each offense and one general “not guilty” verdict form. Defense counsel pointed out that the jury could find him guilty of one of the five charges and not guilty of others. The court replied that “whatever they find him guilty on, they will sign it. If not, automatically it is not guilty * * The defense did not object or tender any of its own forms or instructions on that point.

The jury found defendant guilty on all charges. Subsequently defendant filed a post-trial motion for a new trial, based on newly discovered evidence. He alleged in the motion that another white male had been charged with four rapes that happened in November and December of 1979 near the 1300 block of Greenleaf, where two of the rape victims in the present case resided. The court denied the motion and entered judgment on the jury’s verdict.

After a sentencing hearing, the court imposed three concurrent prison terms of 25 years for rape, deviate sexual assault and home invasion, plus two concurrent prison terms of 14 years for the burlary and robbery convictions. After the sentence was announced the court granted the prosecution’s motion to s.o.l. the indictments against defendant for the rapes of C. R. and K.K.

Opinion

I

Defendant contends that the trial court committed reversible error in permitting evidence of the other two rapes to be admitted on the basis of modus operandi. He first argues that the three crimes lack the striking similarities necessary to indicate a common scheme or method. Further, he claims that the prejudicial impact of the testimony involving the other rapes outweighs its probative value and should have been excluded on that basis.

According to the pertinent law, evidence that a defendant committed crimes other than the one for which he is being tried is inadmissible to show that he has a propensity to commit crimes. (E.g., People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Such evidence may be admitted, however, for numerous other purposes as long as its probative value outweighs its prejudicial impact. (People v. Butler (1978), 63 Ill. App. 3d 132, 379 N.E.2d 703.) For example, evidence of other crimes may be used to prove a fact in issue, defendant’s motive, intent, identity or modus operandi. (People v. McDonald.) The latter exception to the general rule of inadmissibility has been recognized as “nothing more than circumstantial evidence of identity, the rationale being that crimes committed in a similar manner suggest a common author.” (People v. Watson (1981), 98 Ill. App. 3d 296, 298, 424 N.E.2d 329, 331.) While the crimes need not be “identical” (People v. Osborn (1977), 53 Ill. App. 3d 312, 368 N.E.2d 608), they generally share features that are highly distinctive or peculiar. (People v. Butler.) These common features may be insufficient to raise the modus operandi inference individually; however, they “may yield a distinctive combination if considered together.” People v. Haston (1968), 69 Cal. 2d 233, 245-46, 444 P. 2d 91, 99, 70 Cal. Rptr. 419, 427, quoted in People v. Butler (1978), 63 Ill. App. 3d 132, 141, 379 N.E.2d 703, 709.

In the pending case, although defendant argues that the evidence of the three crimes reveals nothing that is not common to any rape, we find that the record reveals enough similarities between the attacks to justify the admission of C.R.’s and K.K.’s testimony. In all three rapes the asailant wore a blue knit cap, attacked the women after entering their apartments at night, grabbed them by their necks and choked them until their resistance was overcome; forced them to lie across the width of their beds while he raped them, used or referred to a pillow, and took money from each victim’s purse before leaving. In addition, each rape occurred during a three-week period, in close geographical proximity. It is true that there were differences in the attacks, but we do not find them substantial. Defendant points out that the attacker gained entrance to the three apartments in a different manner each time, spoke different words to the victims, had a strong odor in only one of the crimes, and mentioned a knife in only two of the crimes.

We do not believe that these differences overcome the strong pattern of similarity shared by all three attacks. In People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999, defendant, who was on trial for rape, was linked to another sexual attack by the following similarities: (1) the defendant entered the ground floor apartments of both victims through a kitchen window; (2) the rapes occurred during a one-month period, within five blocks of each other; (3) defendant used a gun; and (4) the victims were raped in bedrooms. In People v. Oliver (1977), 50 Ill. App. 3d 665, 365 N.E.2d 618, during defendant’s trial for a rape-robbery, evidence of a second, similar offense was permitted into evidence. The crimes occurred one hour apart in homes that were four blocks apart. Both victims were approached on the street by a man with a gun who initially demanded money. Both were told that defendant was trying to obtain money for his brother’s drug problem. One victim, however, was raped in a yard, while the other was raped in her home. And in People v. Emmett (1975), 34 Ill. App. 3d 167, 340 N.E.2d 235, similarities in two deviate sexual assaults included the geographical proximity of the attacks, the short time period between the attacks, and the fact that the assailant used a knife, attacked each victim in her apartment, and made both perform oral sex upon him. One difference was defendant’s method of entering the apartments; he forced his way into one apartment, but entered the other apartment after volunteering to help that victim carry her groceries.

In light of these and similar cases, we do not find the differences in the instant case to be substantial. The differences in the manner of entry are just one factor to consider, as indicated in People v. Emmett. That defendant did not have a strong body odor in the rapes of C.R. and K.K. is hardly material, for obvious reasons. We further emphasize that, although individual similarities in the rapes may be common to rapes in general, the courts view the pattern of events in their entirety, on a case-by-case basis. Thus, in People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251, the court upheld the admission of evidence linking defendant to a rape other than the one for which he was being tried, recognizing that no single common factor or group of factors is essential to the competency of the evidence. (People v. Burgin (1979), 74 Ill. App. 3d 58, 68, 392 N.E.2d 251, 258, citing People v. Osborn (1977), 53 Ill. App. 3d 312, 368 N.E.2d 608.) The evidence in Burgin revealed that both victims were Northwestern University students, raped on campus after being approached by a man on a bicycle. The attacks occurred within a few blocks of each other, two weeks apart, on Saturday evenings. The assailant in both cases first spoke to the women, then grabbed them and raped them in a darkened area where few people were around. The Burgin court concluded that the evidence of the second attack was highly probative on the one in issue. (See also People v. Sievers (1978), 56 Ill. App. 3d 880, 372 N.E.2d 705 (evidence of other crimes was admissible against defendant despite differences in the details of the attacks).) We conclude that the testimony of C.R. and K.K. shared enough common features, distinctive in combination, to justify application of the modus operandi principle.

We next address defendant’s alternative contention regarding the admissibility of this evidence. In essence, defendant argues that the State did not demonstrate sufficient need for the testimony of C.R. and K.K. because of the other identification evidence provided by G.S., the complaining witness. Accordingly, he maintains, the cumulative rape evidence prejudicially outweighed its probative value. Defendant relies on People v. Triplett (1981), 99 Ill. App. 2d 1077, 425 N.E.2d 1236, to support his position. In Triplett, the murder and armed robbery convictions of defendant were reversed and the case was remanded for a new trial because of certain errors, including the erroneous admission of evidence that defendant had participated in a prior armed robbery of a Clark station. The evidence of the second offense was offered to show defendant’s knowledge of the Clark station’s bank deposit procedures. The appellate court rejected this use of the evidence, noting that defendant’s familiarity with the procedures had already been clearly established by defendant’s admission that he had worked for several Clark stations and was familiar with their procedures. The court went on to hold that the prior offense was also inadmissible under the modus operandi principle, citing the numerous differences in the two crimes. The similarities between the two incidences were that defendant had previously worked at both stations and the stations were robbed in the morning by someone with a gun, who drove off in a car. The methods of committing the two crimes differed in that the assailant, with another person, approached the manager of the first station on a pretext but in the second offense, a lone offender directly confronted the manager with a gun. The first robbery involved a black gun and a green two-door sedan, while the second involved a “shiny” gun and a green station wagon. The crimes were committed in a three-month period, several miles apart. The Triplett court held that the evidence of the prior offense had little if any bearing on the crime being tried because of these differences and that therefore the prejudicial impact of the evidence outweighed its minimal probative value.

We find Triplett distinguishable on its facts; the offenses in the instant case are much more strongly connected. Regarding the State’s need for the evidence of the other rapes, it is true that G.S., the complainant, clearly and positively identified defendant. However, we disagree with defendant’s suggestion that when the State has positive identification evidence it cannot proffer additional evidence that is based on other alleged crimes. Identification of defendant was a central issue in the case and he presented many alibi witnesses. To the extent that the evidence of the other rapes strengthened the identification of defendant, it was fulfilling its purpose under the modus operandi principle. We conclude that the trial court did not abuse its discretion in allowing C.R. and K.K. to testify regarding their rapes.

II

Defendant next contends that the robbery and home invasion convictions must be reversed because the State failed to prove the essential elements of each offense. Further, he argues that the burglary conviction should be vacated as a lesser included offense of home invasion.

A.

The Elements of Robbery

Robbery is the taking of property “from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1.) Defendant concedes that within the meaning of the statute, the victim was “present” when the property was stolen. (See People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289.) He maintains, however, that the necessary force or threat of force was missing; that the force involved in the rape cannot be imputed to the taking of the victim’s property. For support, defendant relies on three cases, People v. Patton (1979), 76 Ill. 2d 45, 389 N.E.2d 1174, People v. King (1979), 67 Ill. App. 3d 754, 384 N.E.2d 1013, and People v. Pack (1976), 34 Ill. App. 3d 894, 341 N.E.2d 4.

We find these cases inapposite to the facts of the pending case. In People v. Patton the supreme court held that the simple taking of a purse from the fingertips of an unsuspecting person did not constitute sufficient force to sustain a robbery conviction. The court noted that had the purse snatching been accompanied by injury to the victim, or had defendant overcome any resistance or struggling by the victim, robbery would be the appropriate charge. Because this element was missing, however, the supreme court affirmed the appellate court’s order reducing the robbery conviction to theft.

The instant case, unlike Patton, does not involve a simple taking of property from an unsuspecting victim. Here, it has been proved beyond a reasonable doubt that defendant exerted brutal force against G.S. when he grabbed her and choked her and raped her. It cannot seriously be contended that the victim was not subdued by defendant’s actions. Defendant nevertheless adheres to the view that this force was unrelated to the taking of the victim’s property, relying on People v. Pack and People v. King. In People v. Pack the Fifth District Appellate Court held that where the defendant entered a woman’s home, choked her and left her for dead, and also took money from her nearby purse, there was no factual basis to establish the force element of robbery, because the force used against the victim was to kill, not steal. In Pack the facts indicated that defendant may have borne a grudge against the woman, his former part-time employer, and stole the money presumably as an afterthought.

The Fourth District Appellate Court, in People v. King, followed the reasoning of Pack and reversed a robbery conviction in a rape case. The court noted that the rape occurred in the bedroom and the victim’s purse was taken from the kitchen, 15 to 30 feet away. The court stated that “[n]owhere in the record is there any indication that the purse was taken from the presence of the victim with the use of force as required by the robbery statute.” (Emphasis added.) (67 Ill. App. 3d 754, 759, 384 N.E.2d 1013, 1016-17.) The court added that the force involved in the rape did not appear from the record to be related to the taking of the purse.

In contrast to the facts of Pack and King, the present case involves evidence that defendant demanded money from G.S. at the beginning of the attack. The jury could well have inferred that he intended to rob her all along. After choking and raping her, moreover, defendant hardly had reason to anticipate any further resistance; his force against her remained in effect. Therefore, we hold that since defendant’s use of force was not limited to the sexual assault and thus satisfies the robbery statute, defendant’s robbery conviction must be affirmed.

B.

The Elements of Home Invasion

Defendant further contends that the evidence fails to establish the offense of home invasion. (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11.) The statute defines the offense as follows:

“(a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or
has reason to know that one or more persons is present and
$ #
(2) Intentionally causes an injury to any person or persons within such dwelling place.”

Defendant argues that he cannot be charged with knowing that the victim was in the apartment when he entered because she was not, in fact, physically present at that time. Accordingly, he maintains, one of the elements of the offense was not established.

The disingenuousness of this contention is readily apparent; it conveniently ignores the reason she was briefly out of the apartment. Defendant’s brief admits that “[t]he clear import of the evidence was that the perpetrator had switched [the victim’s] circuit breaker to ‘off,’ then entered her apartment, knowing that she was gone, hiding [sic] in the closet awaiting her return.” Notwithstanding this admission, defendant urges us to construe the statute in a narrow and literal manner that would exempt his actions from its coverage. During oral arguments, however, defense counsel conceded that the statute might be applicable if, for example, an offender rang someone’s doorbell and pulled the victim out of his dwelling, then entered and forced the victim back inside with him.

We need not speculate upon numerous hypothetical situations because we find that the facts of this case strongly support the jury’s conclusion that defendant entered G.S.’s dwelling place with the requisite knowledge of her “presence” therein. We have found no cases that directly bear on this issue. We believe, however, that there are two logical ways to interpret the statute to bring the facts within its coverage. First, we believe that the basement of G.S.’s apartment building could be construed as part of her “dwelling place” without inappropriately extending the meaning of the terms. According to the statutory definition of “dwelling,” it means “a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home, or residence.” (Ill. Rev. Stat. 1979, ch. 38, par. 2 — 6.) Although apartment dwellers live in their individual units, they necessarily use other portions of the building, to get to and from their apartments, to do their laundry, etc. We need not definitively conclude, however, that the basement of G.S.’s apartment building was part of her dwelling because we believe that she was constructively “present” in her own apartment during defendant’s course of conduct. The evidence supports the inference that he knew she was home and deliberately lured her out of the apartment by subterfuge so that he could gain entrance. Moreover, dinner was cooking and even if he did not actually switch off the circuit breakers, it appears that he would have had ample reason to know that she was “home” and that her immediate absence was temporary. This is not a case in which an offender is burglarizing an apparently empty home when the owner suddenly appears or returns and the offender then harms that person before leaving. Under those facts, the offender’s primary criminal intent upon entering the home is to steal property. The burglary statute adequately proscribes such conduct. The emphasis of the home invasion statute, on the other hand, is solely to protect the personal safety of people in their homes. We have no doubt that the legislative purpose of the home invasion statute would be effectuated by our holding that G.S. was within the class of people the statute was designed to protect and that defendant’s conduct was of the type of harm the statute was enacted to prevent. Therefore, defendant’s conviction for home invasion must stand.

C.

Next, defendant argues that his conviction for burglary must be reversed and he should be resentenced because both the home invasion and burglary offenses are based on the “identical act of entry.”

In People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845, the supreme court held that “when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, [multiple] convictions with concurrent sentences can be entered.” The dispositive question pertinent to defendant’s contention, therefore, is whether burglary is “by definition” a lesser included offense of home invasion. In People v. Bitner (1980), 89 Ill. App. 3d 1106, 412 N.E.2d 721, the only case we have found that discusses this issue, the court held that burglary and criminal trespass to land are not lesser included offenses of home invasion, although battery is. Without extended discussion the Bitner court noted that “[b]urglary requires entry with intent to commit a felony or theft (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1(a)), while criminal trespass to land requires notice of forbidden entry (Ill. Rev. Stat. 1977, ch. 38, par. 21 — 3(a)). As neither of these elements was here established, we are precluded from [reducing defendant’s home invasion conviction to a lesser offense].” (89 Ill. App. 3d 1106, 1111, 412 N.E.2d 721, 726.) We agree with Bitner that burglary requires a different mental element than does home invasion and therefore is not an included offense. This conclusion is based on the applicable law, which provides that to be a lesser included offense, the greater offense must include every element in the lesser offense plus one or more elements; the lesser offense does not have any element that is not included in the greater one. In other words, it is impossible to commit the greater offense without necessarily committing the lesser also. (People v. Foust (1980), 82 Ill. App. 3d 516, 523, 401 N.E.2d 1329, 1334-35; see Ill. Rev. Stat. 1979, ch. 38, par. 2 — 9(a).) Depending on the facts underlying a home-invasion charge, a burglary might or might not have been simultaneously committed by an offender. In the pending case, the elements of burglary are satisfied by defendant’s unauthorized entry into the victim’s apartment (regardless of his “knowledge” of her presence) as long as he then had the intent to commit a theft or a felony. The evidence supports the inferences that he had the intent to steal property and to rape G.S. at that time. By definition, however, home invasion does not require that a person have a felonious intent or intent to steal at the time he or she enters a dwelling without authority. The intent requirement is “knowledge” or “reason to know” that a person is present. The home invasion offense is not completed until the offender, armed with a deadly weapon, either uses or threatens force against the person (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11(a)(1)) or injures him or her (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11(a)(2)). Under the Foust test, therefore, it would not appear that every element of burglary is included in home invasion. Moreover, it would be possible to commit a home invasion without simultaneously committing a burglary if, for example, the offender entered a house, knowing someone was there, but had no intent to steal or commit a felony. If the offender struck the house’s occupant with his fist (battery) and then left, the elements of home invasion would be present but the necessary commission of a felony would be lacking. Therefore, there would be no burglary. We conclude that the facts of the pending case support separate convictions of home invasion and burglary. Consonant with the supreme court’s reasoning in People v. King, defendant’s interrelated acts adequately support the multiple convictions and concurrent sentences because burglary is not, by definition, a lesser included offense of home invasion. Accordingly, we affirm the convictions of all counts as well as the corresponding sentences.

Ill

Defendant next contends that he was denied due process of law because the jury was given five separate “guilty” verdict forms but only one “not guilty” form. He argues that the jury could have been confused and misled because the court failed to tell the jury that by not signing a particular “guilty” form, defendant would “automatically” be acquitted of that charge. Thus, he maintains, the jury might have believed they were restricted to finding him either not guilty or guilty of all charges; they would not have known that he could have been found not guilty of one or more of the offenses.

Initially, we note that defendant did not proffer alternative instructions or object to the court’s determination to give the State’s verdict forms. Nevertheless, we will address the merits of this issue. The case law supports the practice of submitting one general not guilty form along with separate guilty forms for each count of a charge. (E.g., People v. Brown (1980), 87 Ill. App. 3d 368, 409 N.E.2d 81; People v. Cole (1977), 50 Ill. App. 3d 133, 365 N.E.2d 133; see Illinois Pattern Jury Instructions, Criminal, Nos. 26.02, 27.01, 27.02, 27.03 (2d ed. 1971).) Further, we cannot agree that the judge’s oral instructions caused confusion. He simply read each verdict form in succession and told the jury to sign them according to their verdict. Although the judge did not specifically state that if they left one of the five guilty forms unsigned defendant would be acquitted as to that charge, we believe that this was implicit; the jurors undoubtedly understood that they must sign each form that corresponded to an offense for which they found defendant guilty and had they not been persuaded beyond a reasonable doubt as to a particular count, they presumably would have left it blank. Significantly, they did not ask the court to clarify the verdict forms on that point. Therefore, there is no indication from the record that the jury was misled or confused as to the possibility of finding defendant not guilty on one or more counts and we will not presume otherwise. We conclude that the State’s verdict forms were not erroneous, nor the judge’s oral instructions confusing, and defendant was not denied a fair trial. See People v. Brown.

IV

Defendant finally contends that the trial court abused its discretion by denying his motion for a new trial based on newly discovered evidence.

After examining the record and considering the pertinent law, we reject this argument also.

The “newly discovered” evidence involves a series of sexual assaults that occurred in the same neighborhood as the one where G.S. and C.R. lived, approximately 10 months later. The suspect who was arrested for those assaults, a white male with a physical description generally similar to defendant’s, apparently gained entrance to the apartment of some of the alleged victims by posing as a plumber. Defendant contends that the evidence involving this other assailant would tend to rebut the State’s evidence against him.

The trial court, in its discretion, may allow a new trial based on newly discovered evidence, but must evaluate such evidence in light of the following guidelines: (1) the evidence must be conclusive and likely to change the result upon a retrial; (2) it must be material and noncumulative; (3) it must have been discovered after the trial; and (4) it must be of such a character that it could not have been discovered before trial by the exercise of due diligence. People v. Ramos (1980), 80 Ill. App. 3d 722, 725, 400 N.E.2d 676, 679.

The new evidence in the instant case fails to meet these standards. The record contains a discussion between the judge and parties’ counsel, before trial, which indicates that defense counsel knew a man had been indicted in connection with those other rapes. He asked for and received two photographs of lineups containing this man. Moreover, during trial, the photographic lineups were shown to the complainant, C.R., and K.K., who said that no one in the photographs resembled their attacker. Thus, it is evident that defendant was on notice of the suspect in the other series of rapes and, had the evidence seemed worthy of further investigation, he could have taken the appropriate steps to offer it into evidence. Accordingly, this cannot be viewed as evidence discovered after trial. Furthermore, this evidence appears to be immaterial to defendant’s case; the only similarity between the two series of sexual assaults is the geographical location of some of them. The rapes perpetrated by defendant occurred 10 months earlier and where characterized by a different modus operandi. The record does not reveal any substantial connection between the assaults or the other alleged offender and defendant. We conclude, therefore, that defendant failed to establish that the newly discovered evidence was unavailable to him at trial, or that it was conclusive, material, or would change the result upon a retrial.

For the foregoing reasons, the trial court’s judgment is affirmed in its entirety.

Affirmed.

LORENZ and MEJDA, JJ., concur.

       The Pack court apparently believed that the victim was not “present” during the taking of the property, but did not cite or consider cases that would support an opposing view. E.g., People v. Braverman (1930), 340 Ill. 525, 173 N.E. 55 (to satisfy the robbery statute, property may be taken from the presence, custody, or control of a person, and it is not necessary that the property is in the actual or immediate presence of the owner).

       To the extent that the Pack and King courts held that the force element of robbery was lacking when the taking of the property occurred “incident” to the physical assaults in those cases, we disagree with the soundness of the reasoning and decline to adopt it.

       Similarly, if an offender watched someone leave his house through the back door to take out the garbage and the offender slipped inside the door and then attacked the returning person, the purpose of the home invasion statute would be vindicated by construing the occupant of the house as “present” when the offender entered.

       The jury did ask the judge in writing if they needed a unanimous decision on each count for a guilty verdict, but while the court was waiting for counsel to arrive before answering, they reached their verdict.


author: PRESIDING JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE PITTS, Defendant-Appellant.
    First District (4th Division)
    No. 80-1489
    Opinion filed February 11, 1982.

      Steven R. Decker, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean Morask, and Sheila M. King, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Following a jury trial, defendant, Eddie Pitts, was found guilty of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 1). On September 3, 1979, defendant received a sentence of not less than 150 years and not more than 300 years imprisonment.

On appeal, defendant raises the following issues for review: (1) whether the trial court erred in failing to give an instruction outlining the procedure to be followed upon a verdict of not guilty by reason of insanity; (2) whether the trial court erred in denying defendant the right to question prospective jurors on the voir dire examination with respect to any bias or prejudice they might have against the defense of insanity; (3) whether the trial court erred in allowing the State to call rebuttal witnesses to testify where these witnesses were not listed on the State’s list of witnesses; (4) whether the trial court erred in admitting hearsay testimony when it allowed the State to question Dr. Bogan about reports which he had never seen and which were never tendered to defense counsel prior to trial; (5) whether the State failed to meet the burden of proving the defendant sane beyond a reasonable doubt; and (6) whether defendant was deprived of a fair trial by prosecutorial misconduct during the closing argument by deliberately misstating evidence and by making prejudicial remarks.

We affirm.

The testimony at trial was as follows. Winston McCain testified that on November 30, 1976, he and Jerry Keane were employed by People’s Gas Company. They answered complaint calls principally concerning gas leaks. On that date, November 30, they were called to repair a gas leak at 6620 South Harvard Avenue, in Chicago. Edward Stewart answered the door and informed them that the gas odor was emanating from the bedroom. Eddie Pitts, whom the witness later identified as defendant, walked toward them. Stewart, Keane, the witness and defendant all proceeded up the stairs to the bedroom. Defendant neither said nor did anything unusual at this time. Defendant was dressed in dark clothing and wore a purple fez.

The four men left the bedroom and proceeded to the basement where Keane examined the furnace. Keane went over to inspect the flue of the furnace and to remove the furnace door. Stewart was standing in the doorway of the basement. When McCain saw that Keane was having some difficulty in removing the furnace door, he started upstairs to get a screwdriver. As McCain was going up the stairs, Keane screamed, “Winston, run, get help.” He ran back downstairs and saw defendant with his left arm around Keane’s neck, hitting or “stabbing” him in his chest with his right hand. McCain then ran outside to radio for help.

Edward Beale testified that he is a Chicago police officer and that he was called to the scene. He was admitted into the house by Donna Petty and Edward Stewart. He entered the basement where he found Keane lying on the floor with bloodstains all over his body. When he went over to Keane, he could not find any vital signs. Approximately 3 feet from the body, he found a small pocketknife, a book of matches, and a flashlight.

John Smith testified that he is a Chicago police investigator and that on November 30, 1976, he conducted a homicide investigation at 6620 South Harvard. On December 1, 1976, he interviewed defendant and informed him of his constitutional rights. In response to questions asked by Smith, defendant stated that he had thrown away the knife used in the killing. Defendant said he had spent the night in a vacant building. Smith stated that defendant acted normally and spoke in normal tones.

Dr. Gilbert Bogan was called on behalf of the defendant. Bogan, a psychiatrist, testified as to the mental state of defendant. In February 1979, Bogan examined defendant for fitness and sanity. At that time, he found defendant was not fit. On April 5, 1979, he again examined defendant and again found defendant unfit for trial. Subsequently, on September 12, 1979, he examined defendant and diagnosed him as schizophrenic, paranoid type in remission with medication. He stated that at the time of the alleged murder, defendant could appreciate the criminality of his conduct but was unable to conform his conduct to the requirements of the law.

During Bogan’s examination of defendant in February 1979, defendant told him that he was going to plead not guilty, and that he was psychotic at the time of the incident, and that he heard voices. Defendant told Bogan that he first began hearing voices at the age of 12 or 13 and that the affliction became much worse after taking drugs. Defendant also said that he began taking drugs 3 days prior to the alleged offense.

In the psychological reports, defendant told the psychologist that he stabbed a gas man whom he did not know because a voice told him to do so. The trial court sustained the State’s objection to Bogan’s testimony of what someone else wrote down in the psychological reports as to what defendant said. The trial judge instructed the jury that the conversations between defendant and Bogan were to be received for the limited purpose of the fact that Dr. Bogan had those conversations with defendant and not to prove the truth of the matter asserted.

On cross-examination, Dr. Bogan reiterated his opinion that defendant was insane at the time of the alleged offense. He changed his opinion when the State introduced certain reports not previously read or relied upon by Dr. Bogan. The trial judge overruled defendant’s objection to the reports as hearsay and allowed the reports to be admitted. The reports of April 1, 1977, stating that defendant had no recollection of the alleged murder were written by social worker Dillingham, and those of April 13, 1977, were written by Dr. Armil. On April 18,1977, Dr. Jewitt Goldsmith’s report stated that defendant remembered only that he returned to the scene of the incident to find a body on the floor and a knife in his hand.

Three reports were admitted regarding whether defendant was under the influence of drugs: the first report, written by Dr. Tuteur, stated that defendant began taking drugs 3 days prior to the incident; the second report, by Dr. Goldsmith, stated that defendant had not taken drugs at least 1 day prior to the killing; and the final report, by Dr. Kaplan, stated that defendant had stopped using drugs 6 to 9 months prior to the killing.

On redirect, Dr. Bogan testified that a schizophrenic, paranoid type in partial remission could undertake certain actions which would seem commonplace and would be normal under certain circumstances. Defendant could suffer from a mental disease or defect by which he would be unable to conform his conduct to the requirements of the law on one day, and the next day the same person could conform his conduct to the requirements of the law even though he still had the mental disease.

The State then called rebuttal witnesses. Defense counsel objected to two of the State’s rebuttal witnesses, Investigator Elbert Fitzpatrick and Dr. Gerson Kaplan, because they were not included in the State’s answer to discovery. Defendant’s objections were overruled and both were allowed to testify.

Investigator Fitzpatrick testified that on April 22, 1976, defendant answered questions regarding his name, age, date of birth, and physical description. He stated that, in his opinion, defendant was in contact with reality and sane on that date.

Investigator Smith was recalled and stated that defendant gave responsive answers to questions regarding his name, date of birth, place of birth, and social security number. He also stated that defendant was calm and composed and spoke coherently during the interview.

The defense was allowed to reopen its case in chief and called Dr. Verna Tuteur who testified that he examined defendant on July 14, 1979. He discussed with defendant the incident that occurred on November 30, 1976. Defendant stated that the victim was unknown to him, that he was under the influence of “pot,” “red devils,” and “PGP.” Defendant told Tuteur that the voices told him to “kill the man.” Defendant also felt that the whole world was going to kill him.

Dr. Tuteur’s diagnosis indicated that defendant was suffering from a psychosis or drug intoxication. In Tuteur’s opinion, defendant, on November 30, 1976, due to the mental disease, did not appreciate the criminality of his acts and could not conform with the requirements of the law. Dr. Tuteur stated that defendant was not faking the symptoms of a mental disease. On cross-examination, Dr. Tuteur did not change his opinion, even considering reports in which defendant contradicted himself.

The State’s rebuttal witness, Dr. Gerson Kaplan, testified that on June 22, 1978, he examined defendant to determine competency for trial. Defendant told him that he was not on drugs at the time of the incident and had not used any drugs for 6 to 9 months prior to the incident. Defendant told Dr. Kaplan that when one of the gas men took out a knife he (defendant) felt this was an attack on him and he had to defend himself. Dr. Kaplan stated that defendant’s actions prior to the stabbing were inconsistent with drug psychosis. In his opinion, defendant’s act of throwing the knife away showed that he was aware of wrongdoing and could appreciate the criminality of his conduct. Dr. Kaplan had no opinion as to whether defendant was able to conform his conduct to the requirements of the law. He could not say whether defendant was sane on November 30,1976.

During the instruction conference, defendant tendered the instruction that “if you find the defendant not guilty by reason of insanity, the Court will then determine if the defendant is still in need of mental treatment.” The court refused to give this instruction to the jury. Defendant also tendered an instruction regarding voluntary intoxication. That instruction was refused by the trial court.

Following closing arguments, the jury returned a verdict finding defendant guilty of murder.

Defendant contends the court erred in refusing his tendered instruction informing the jury that following a verdict of not guilty by reason of insanity he could be remanded to the Department of Mental Health for further examination and treatment. Defendant further claims that the jury has a right to know the consequences of a verdict of not guilty by reason of insanity and what legal action could thereafter be taken against him.

We disagree with defendant’s contentions. In People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058, we declined to adopt a general rule of law requiring that the jury be given an instruction which related the consequences of a verdict of not guilty by reason of insanity. This instruction would inject into the trial and the deliberations of the jury extraneous and irrelevant matters that would have no bearing on defendant’s guilt or innocence. (86 Ill. App. 2d 162, 170.) Moreover, such an instruction invites the jury to reach a compromise verdict, finding defendant not guilty by reason of insanity despite clear evidence of legal sanity because defendant may be incarcerated for treatment anyway. (86 Ill. App. 3d 162, 170.) Therefore, it was not error for the trial court to refuse such an instruction.

Defendant also contends the court erred in denying him the right to question prospective jurors on the voir dire examination with regard to any bias or prejudice they might have against the defense of insanity. The following questions were submitted by defense counsel for the trial judge to ask: “(1) do you have any feeling or viewpoint concerning the defense of insanity in a criminal case and if so what is it? and (2) do you agree with the concept that a person should not be held responsible for his acts if he is not capable to conform his conduct to the requirements of the law?” However, the trial judge refused to ask these questions.

It is well established that limitation of voir dire questioning may constitute reversible error where its effect is to deny a party a fair opportunity to probe an important area of potential bias or prejudice among prospective jurors. (Gasiorowski v. Homer (1977), 47 Ill. App. 3d 989, 991, 365 N.E.2d 43, 45.) The purpose of voir dire examination is to permit counsel to ascertain whether the minds of prospective jurors are free from bias and prejudice. (People v. Witted (1979), 79 Ill. App. 3d 156, 164, 398 N.E.2d 68, 76.) Voir dire examination is to be initiated by the trial judge and may be supplemented by the parties at the court’s discretion. (People v. Witted (1979), 79 Ill. App. 3d 156, 164.) How much latitude the trial judge gives to the parties in their supplemental examination is also at his discretion. People v. Witted (1979), 79 Ill. App. 3d 156, 164.

In view of the above statement of the law, we find the better procedure would have been for the trial judge to allow the questions. Further, we are aware that when insanity is an issue the parties have a right to examine jurors concerning their attitudes on an insanity defense. (People v. Moore (1972), 6 Ill. App. 3d 568, 571, 286 N.E.2d 6, 8.) However, we find that the trial judge’s refusal to ask the questions in this case does not constitute reversible error due to the overwhelming evidence of defendant’s guilt. The finding of defendant’s guilt would not have changed even if the suggested questions had been put to the prospective jurors.

Defendant further contends that the trial judge erred in allowing the State to call rebuttal witnesses, and that such action was a violation of the discovery rules. (Ill. Rev. Stat. 1975, ch. 110A, par. 412(a).) Moreover, the State knew or should have known that defendant would probably present the defense of insanity and, despite this, the State failed to list Investigator Fitzpatrick or Dr. Kaplan on the list of witnesses it would call.

The discovery rules provide that the State must give defendant the names and addresses of all witnesses it intends to call, including a statement as to the substance of the testimony the witnesses will give at trial. (People v. Galindo (1981), 95 Ill. App. 3d 927, 932, 420 N.E.2d 773, 777.) Where rebuttal witnesses are concerned, the State need not inform defendant of the foregoing until the intent to call the rebuttal witness is formed. (People v. Galindo (1981), 95 Ill. App. 3d 927, 932.) The reason for this rule is that a prosecutor cannot know whether a witness will be called in rebuttal until the defense testimony is heard. People v. Galindo (1981), 95 Ill. App. 3d 927, 932.

Although we agree that the proper procedure is to have the State inform defense counsel of witnesses who will be called to testify in rebuttal when the State forms its intention, the trial court is not required to exclude the rebuttal witnesses’ testimony, even though there has not been strict compliance with the discovery rule. (People v. Galindo (1981), 95 Ill. App. 3d 927, 932-33.) The exclusion of such testimony is within the sound discretion of the trial court and will only be reviewed upon a showing of prejudice to defendant. People v. Galindo (1981), 95 Ill. App. 3d 927, 933.

Here, defendant has failed to show the chance of prejudice resulting from the failure of the State to give notice of the rebuttal witnesses it called. After carefully reviewing the record, we find that the trial court’s ruling was not an abuse of discretion.

Defendant next contends the trial court erred in admitting hearsay testimony when it allowed the State to question Dr. Bogan concerning statements defendant may have given to other individuals which were contained in reports which Dr. Bogan had not seen previously. Further, these reports were not tendered to defense counsel prior to trial. Defendant asserts that testimony of an expert witness which is based in part upon reports and statements of others not available for cross-examination constitutes hearsay and is, therefore, inadmissible as evidence.

We disagree with defendant’s contention. Our supreme court recently stated that it is unnecessary for hospital records to be admissible in evidence in order to elicit an expert medical opinion based upon such reports. (Wilson v. Clark (1981), 84 Ill. 2d 186, 192, 417 N.E.2d 1322, 1326.) Further, the supreme court stated that the holding in People v. Ward (1975), 61 Ill. 2d 559, 566-67, 338 N.E.2d 171, 176, indicating that medical records may be used by an expert witness in forming an opinion as to an accused’s sanity even though the reports are not admitted into evidence, was based upon Federal Rule of Evidence 703. This rule “makes no distinction between the opinions of treating and nontreating doctors. The rule states: ‘The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.’ ” (Fed. R. Evid. 703; Wilson v. Clark (1981), 84 Ill. 2d 186, 193.) The key element in applying Federal Rule 703 is whether the information upon which the expert bases his opinion is of a type that is considered reliable. Wilson v. Clark (1981), 84 Ill. 2d 186, 193.

The supreme court concluded by holding that the trial procedures embodied in Federal Rules 703 and 705 should be followed. Under Federal Rule 705, an expert may give an opinion without disclosing the facts underlying the opinion. (Wilson v. Clark (1981), 84 Ill. 2d 186, 194.) The expert may give his opinion without disclosure of underlying facts as to whether the opinion is based on firsthand or secondhand information. (84 Ill. 2d 186, 194.) Moreover, due to the high degree of reliability of hospital records, ,an expert may give his response to a hypothetical question based on facts contained in those records, even if the hospital records themselves are not in evidence. 84 Ill. 2d 186, 194.

Applying the above statement of the law to the instant case, we find that the trial court did not err in allowing Dr. Bogan to consider statements contained in medical reports in arriving at an opinion.

Defendant next contends that the State failed to meet the burden of proving him sane beyond a reasonable doubt at the time of the commission of the offense.

The affirmative defense of insanity is defined in section 6 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 6 — 2(a)) as follows:

“A person is not criminally responsible for his conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”

Every person is initially presumed to be sane. The defendant may overcome this presumption by presenting some evidence which raises some doubt of his sanity. (People v. Moore (1980), 89 Ill. App. 3d 202, 207, 411 N.E.2d 579, 583.) Once defendant has rebutted the presumption of sanity, the burden devolves upon the State to prove defendant’s sanity beyond a reasonable doubt at the time of the offense. People v. Dunigan (1981), 96 Ill. App. 3d 799, 821, 421 N.E.2d 1319, 1335-36.

The question of the defendant’s sanity at the time of the offense is to be determined by the jury as trier of fact. Once determined, a court of review will not overturn that finding unless it is so manifestly against the weight of the evidence as to indicate the verdict was based on passion or prejudice. People v. Romaine (1979), 79 Ill. App. 3d 1089, 1096, 399 N.E.2d 319, 325.

In the case at bar, defendant presented testimony from Dr. Bogan indicating that defendant was insane at the time of the offense. However, Dr. Bogan changed that opinion when the State introduced other reports that Bogan had not read previously. Dr. Tuteur, testifying for defendant, stated that, in his opinion, defendant was insane at the time of the offense. The State’s rebuttal witness, Dr. Kaplan, testified that, in his opinion, defendant’s act of throwing the knife away showed that defendant was aware of wrongdoing and could appreciate the criminality of his conduct. From this and other testimony, the jury determined that defendant was sane. This determination cannot be said to be palpably erroneous or against the manifest weight of the evidence.

Finally, defendant contends he was denied a fair trial when the prosecutor during the closing argument deliberately misstated the evidence and made prejudicial remarks. Defendant complains of the following remarks:

“Now, ladies and gentlemen, you decide who the professional is. Dr. Bogan, the man who when he found out things he didn’t know was honest and professional enough to say I could have been wrong. 0 * *
Or Dr. Teutor [sic], who wouldn’t change his opinion if the roof fell down on him. He’s here to collect his money and get his pay and hold his opinion.”

Defense’s objection to the above statements was sustained by the trial court. Defendant further complains of the following remarks made by the prosecutor:

“Even if what the defendant — the psychiatrists are saying is true, even if what Dr. Teutor [sic] is saying is true, that the Defendant took drugs on that day that made him psychotic, consider this. Who made him take those drugs? Jerry Keane, you, me, Mrs. Keane? Eddie Pitts took those drugs he says he took voluntarily. <* # #_
<* # #
When he made that choice to take them, he knew they made him hear voices, according to what Dr. Teutor [sic] said. And it was those voices, according to Dr. Teutor [sic] that made him kill Jerry Keane.
And so, ladies and gentlemen, when you decide if Eddie Pitts is responsible * * *—
# # #
When you make the decision, e * * ask yourselves who made Eddie Pitts take those drugs. Should he be held accountable for the actions that caused the death of Jerry Keane or not, because, of course, he should be and to say otherwise is to say to every drug user out there, * * * take as many drugs as you want, do anything . you choose, but be sure to tell Dr. Teutor [sic] you were hearing voices.”

Objections to these remarks were overruled by the trial court. Defendant asserts that these remarks were particularly improper in light of the trial court’s failure to allow defendant’s jury instructions IPI Criminal No. 24.02 (voluntary intoxication) and IPI Criminal No. 25.02 (drugged condition).

The Illinois Supreme Court has stated the following principles in People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 327:

“The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial judge has performed his duty and properly exercised the discretion vested in him. (North Chicago Street Ry. Co. v. Cotton, 140 Ill. 486.) The general atmosphere of the trial is observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. (City of Chicago v. Chicago Title & Trust Co., 331 Ill. 322.)”

Further, no reversible error results from final argument unless the argument constitutes a material factor in the conviction, or resulted in substantial prejudice to the accused, or the verdict would have been different had the improper closing argument not been made. People v. Burnette (1981), 97 Ill. App. 3d 1015, 1021, 423 N.E.2d 1193, 1199.

We do not find the remarks of the prosecutor were of such a nature as to have been prejudicial to the extent of denying defendant a fair trial. We cannot say the arguments made by the prosecutor were a material factor in defendant’s conviction. The verdict would not have been different even absent the allegedly improper comments.

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

Affirmed.

ROMITI and LINN, JJ., concur.