text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE BROOKS, Defendant-Appellant.
    First District (1st Division)
    No. 83—2318
    Opinion filed January 28, 1985.
    James J. Doherty, Public Defender, of Chicago (Donald S. Honehell, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Linas J. Kelecius, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant Lawrence Brooks was convicted of attempted murder, armed violence and aggravated battery (Ill. Rev. Stat. 1983, ch. 38, pars. 8—4, 33A—2, 12—4). Defendant received concurrent terms of imprisonment of 15 years on the attempted murder and armed violence convictions. On appeal, defendant argues: (1) the trial court erred in refusing to instruct the jury on the justified use of force; and (2) the trial court erred in preventing him from arguing that evidence that one of the victims once had a gun in his truck tended to show that the victim had a gun in his truck on the day of the shooting.

Testifying at trial for the State were defendant’s two victims— Claudette Brooks, the defendant’s estranged wife, and her 30-year-old son, Charles Brooks, the defendant’s stepson. Claudette testified that on April 9, 1982, she left defendant because he “jumped on” her, and she signed a battery complaint against him in regard to this incident. Claudette next saw defendant on May 19, 1982, in a courtroom at 51st Street and Wentworth Avenue in Chicago at a hearing concerning her battery complaint. The trial court at that time ordered defendant to stay away from her.

Claudette further testified she did not see defendant again until May 27, 1982, the day of the crime. On that date, she returned to the same courtroom for a hearing in regard to an assault claim defendant had filed against her son Charles. While they were inside the courtroom, defendant walked over to her several times and tried to talk to her. The sheriff’s police came over on at least two occasions to tell defendant to be quiet. The case was continued until the next day. As Claudette and Charles left the courtroom, defendant again insisted on talking to Claudette. The police told defendant to leave, and accompanied him out of the building. The police talked with defendant outside the building, and defendant left. Pursuant to police instructions, Claudette stayed by the building while Charles went to get his truck which was parked nearby.

Claudette also stated that when Charles pulled up in front of the court building, she got in his truck and the two drove east on 51st Street. While they were stalled in traffic under a viaduct on 51st Street just west of the court building, Claudette saw defendant standing on the sidewalk about 20 feet away with a revolver in his right hand. Claudette started screaming, and defendant left the sidewalk and ran toward the truck. Defendant, while standing about two feet from the truck, pointed his gun through the window and began shooting. A bullet went through Claudette’s left hand and hit Charles in the head. Charles fell out of the truck after the first shot. Defendant continued shooting, wounding Claudette in the head. She heard a total of four shots. Claudette testified that defendant and Charles never fought for the gun.

Claudette’s testimony was corroborated by Charles Brooks, who gave a similar account of the incident. Charles testified that at the May 27 hearing, defendant was irritating and harassing Claudette inside the courtroom and later as they left the courtroom. Following the hearing, Charles stated that as he drove with Claudette under a viaduct west of the court building he saw defendant pull out a revolver and start running toward his truck. Charles testified he could not speed up at that point because traffic was backed up in front of the truck and there was traffic in the oncoming lane. Charles tried to open the door to get out of the truck, but defendant shot him before he had a chance to do so. After Charles had been struck, he fell out of the truck, and heard a second shot as he was getting up. He heard two more shots as he ran to the police station for help. When he returned with a sheriff, he found Claudette slumped over in the truck with gun wounds in her hand, neck and head.

Also testifying for the State was Dr. Edward Snyder, who examined Claudette Brooks following the shooting. Dr. Snyder testified that Claudette had three gunshot wounds in her body and that the entrance wound of each bullet was on her left side.

Testifying on his owm behalf, defendant stated that on April 19, 1982, Charles Brooks came to his house with defendant’s -wife’s cousin. Defendant stated that Charles told him that he did not like what defendant had done to Charles’ mother and that he was going to shoot defendant. Defendant stated that Charles pulled out a gun and fired a shot over defendant’s head. Defendant then contacted the police and signed a complaint against Charles.

Defendant also testified that at the May 27 hearing on his complaint he attempted to talk to Claudette in the courtroom about what he should “do in this matter.” After the case was continued, defendant stated he again tried to talk to Claudette as she and Charles left the courtroom, but bailiffs escorted the three of them outside. As defendant walked under the viaduct on 51st Street en route to his parked car, a truck pulled up behind him. Defendant testified he heard a gunshot, and turned around and saw Claudette leaning forward in the truck in a crouched position. As he walked toward the truck, he heard another shot and then saw Charles holding a gun. Charles, who was in the driver’s seat, extended his right hand toward the passenger side window behind Claudette and pointed his gun at Mm. Charles attempted to fire the gun, but it misfired.

Defendant further testified that he reached in the window and, with one hand, grabbed Charles’ hand with the gun. The butt of the gun was in Charles’ hand, and defendant had a “good portion” of the barrel in his hand. Defendant stated that Charles, and not he, had his hand on the trigger when he heard a third shot during their struggle for the gun. Finally, as they continued wrestling for the gun, defendant heard a fourth shot while he had his own finger on the trigger. Defendant stated he ultimately used both hands to take the gun from Charles and then left with the weapon.

Defendant testified he had no intention of hurting or attempting to kill Charles. He did not intend to shoot anybody. Rather, he stated that his only intention was to take the gun away from Charles.

I

Defendant’s first argument on appeal is that the trial court erred in refusing to instruct the jury on self-defense. We agree. Self-defense relates to the use of force which a person reasonably believes is necessary to defend or protect himself. (Ill. Rev. Stat. 1983, ch. 38, par. 7—1.) A defendant is entitled to have the jury instructed on self-defense where that defense has some foundation in the evidence. (People v. Rodriguez (1981), 96 Ill. App. 3d 431, 421 N.E.2d 323.) This court has held that “slight evidence of self-defense” will support the giving of the instruction. People v. Scott (1981), 97 Ill. App. 3d 899, 903, 424 N.E.2d 70.

In the present case, we believe the record contains sufficient evidence to warrant the giving of a self-defense instruction. Defendant testified that as he walked under a viaduct following the May 27 court hearing, Charles Brooks pulled his truck up behind him and attempted to shoot at him. After Charles fired two shots, defendant approached the passenger side of the truck and struggled with Charles for the gun. Defendant testified that two more shots were accidently fired during their struggle. Defendant further related to the jurors that one month prior to the shooting Charles had shot at him out of anger about defendant’s breakup with Charles’ mother. Defendant stated that during the incident under the viaduct he feared that Charles was again attempting to kill him and thus tried to wrestle the gun from him. From the foregoing testimony, a jury could infer that Charles intended to kill defendant, and that defendant was acting in self-defense when the gun was fired.

We recognize that both victims testified that defendant was the aggressor and began shooting at them without any provocation, and that no force was threatened against defendant. However, the credibility of the witnesses can only be resolved by the jury, not by the trial court. (People v. Rodriguez (1981), 96 Ill. App. 3d 431, 421 N.E.2d 323.) Defendant was entitled to his theory of defense even if the trial judge believed that the evidence offered in support of that defense was of doubtful credibility. (96 Ill. App. 3d 431, 436.) We note that the medical testimony was consistent with defendant’s version of the story. Dr. Snyder testified that the bullets entered Claudette’s body from her left side, which was the side on which Charles, the driver, was sitting at the time the shots were fired. It was undisputed that defendant was standing to the right of Claudette during the shooting.

The State argues that defendant cannot claim self-defense because he testified that the shooting was accidental and that he did not intend to shoot or harm anyone. This court has held, however, that a defendant is entitled to a self-defense instruction even where the shooting results accidentally from a struggle. (People v. Buchanan (1980), 91 Ill. App. 3d 13, 414 N.E.2d 262.) In Buchanan, we noted that the defendant and the victim “struggled over the gun, which discharged several times,” and we concluded:

“Although a defendant’s testimony that death resulted from a struggle for a weapon may help negate his claim on appeal that self-defense was shown conclusively at trial [citations], that testimony does not justify a trial court in refusing to *** instruct on *** self-defense [citations]. *** Even though the shooting occurred during and as a result of the struggle and was in that sense accidental, the preceding events could place the shooting in the context of self-defense.” (Emphasis added.) (91 Ill. App. 3d 13, 15.)

Here, similar to Buchanan, we believe that the preceding events, as testified to by defendant, could place the shooting in the context of self-defense.

The propriety of relying on self-defense where engaged in a struggle was also recognized by this court in People v. Cruz (1978), 66 Ill. App. 3d 760, 384 N.E.2d 137. In Cruz, as in the present case, a struggle ensued between the defendant and the victim and, during the struggle, the gun accidentally went off, killing the victim. We held that it was reversible error to refuse to instruct the jury on self-defense, and we stated:

“The fact that the defendant may have denied any intention to commit the act is *** irrelevant. [Citation.] And the courts have indicated that it is perfectly proper to charge the jury with inconsistent defenses so long as the facts and nature of the case support the feasibility of either.” (66 Ill. App. 3d 760, 764.)

Consequently, contrary to the State’s assertion, no bar to the self-defense instruction arises in this case from a claimed lack of intent or from a possible inconsistent accident defense.

We are aware of cases which have taken a view different from that espoused herein. (Cf. People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292; People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461, cert. denied (1982), 455 U.S. 948, 71 L. Ed. 2d 661, 102 S. Ct. 1448; People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 377 N.E.2d 1077.) However, we believe that, based on the record before us and the authorities relied upon above, defendant should have been given a self-defense instruction, and it was reversible error for the trial court not to do so.

II

Defendant next contends that the trial court erred in prohibiting defense counsel from arguing during closing argument that evidence that the victim once possessed a gun in his truck had a natural tendency to show that the victim possessed a gun in his truck on the day of the shooting. The record reveals that Charles Brooks testified that he owned a gun in 1980 and was convicted of unlawful possession of a firearm for carrying that gun under the seat of his truck in 1980. Charles testified, however, that he did not own a gun in 1982 and that he did not have a gun in his truck on the day of the shooting. Prior to closing argument, the State moved to prevent defendant from arguing that evidence of the prior possession tended to show that Charles had a gun in the truck on the day of the shooting. The trial court granted the motion.

We find no error as to this matter. Generally, a court will not consider evidence that a person has, or has not, done a certain act at a particular time as probative of a contention that he has, or has not, done a similar act at another time. (Vuletich v. Bolgla (1980), 85 Ill. App. 3d 810, 814, 407 N.E.2d 566.) We are unaware of any exception to this general rule that is applicable to the instant case. Moreover, any presumption that Charles had a gun in his truck at the time of the shooting was rebutted by Charles’ testimony at trial. Charles specifically testified that he did not own a gun in 1982 and did not have a gun in the truck on the day of the shooting. Under Illinois law, a presumption, once rebutted, vanishes entirely from a case. (Diederich v. Walters (1976), 65 Ill. 2d 95, 100-02, 357 N.E.2d 1128.) Accordingly, the granting of the State’s motion regarding the gun was proper.

For the reasons set forth above, the judgment of conviction is reversed and the cause is remanded for a new trial. We note that the evidence at trial was sufficient to support a conclusion by the jury that defendant was guilty beyond a reasonable doubt. This does not mean that we are making a finding as to defendant’s guilt or innocence which would be binding on retrial, but rather, our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendant to double jeopardy. See People v. Frazier (1984), 127 Ill. App. 3d 151, 153-54, 469 N.E.2d 594.

Reversed and remanded.

McGLOON and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERT HOLIDAY, Defendant-Appellant.
    First District (4th Division)
    No. 83—2483
    Opinion filed January 24, 1985.

      Steven Clark and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Frank G. Zelezinski, and Frank S. Geldea, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:-

Defendant, Albert Holiday, was tried before a jury and was convicted of murder, armed robbery and three counts of aggravated battery, receiving concurrent extended-term sentences of 80 years, 60 years, and 10 years for those respective crimes. On appeal defendant contends (1) he was not proved guilty of murder; (2) the court lacked the authority to sentence him to extended terms for armed robbery and aggravated battery; (3) the evidence did not support imposition of an extended term for murder because that offense was not accompanied by exceptionally brutal or heinous behavior.

We affirm defendant’s convictions but vacate all the sentences imposed and remand the cause for a new sentencing hearing.

At trial four State witnesses, Gregory Anderson, Danny Harris, Leopold Blakley and Gwendolyn Warren, testified that on October 9, 1982, they were participants in a dice game in a second-floor apartment at 2145 West Lake Street in Chicago. About 20 to 25 people were present, including several children. At about 3:30 p.m. the defendant, who had been known by the witnesses for periods ranging from five to 10 years, entered the apartment for a brief period of time and then left, telling an individual named Junior Gray that he would be back. At about 4:30 p.m. Junior Gray opened the door to the apartment, allowing two armed and masked men to enter. All four witnesses testified that they were able to recognize the defendant as one of the men because his mask failed to cover all of his facial features. Defendant was also wearing the same clothes he had worn in his first trip to the apartment. All four witnesses subsequently identified the defendant from his driver’s license photo and from a photo array.

While defendant’s masked confederate remained near the front door the defendant moved into the apartment, brandishing his gun (identified by Harris and Anderson as a .38-caliber weapon) and stating, “Is there any heroes in the house.” It is undisputed that he then opened fire, wounding Harris, Blakley, and Anderson. Danny Harris also testified that he saw defendant shoot at Dan Daniels from a distance of about 10 feet and then saw Daniels fall. Gwendolyn Warren testified that she saw Daniels shot in the chest by a bullet fired by the defendant, causing Daniels to fall back against the wall. On cross-examination, when asked if she actually saw Daniels struck by a bullet, she stated that he would not have stumbled if he had not been shot.

It is undisputed that during the course of these events Junior Gray was picking up money from the floor and from the dice table, which had been knocked over. Gregory Anderson also testified that Gray “snatched” some money from his hand.

Gwendolyn Warren testified that after Daniels was shot he pulled out a gun and fired toward the front door. He then tucked the gun back into his pants and walked out the front door. No witness directly testified that Daniels left with any money, but there was testimony that he had won a lot of money in the dice game. Daniels’ body was found by the police shortly after the shooting on the third floor of the building, lying on the steps leading up to the fourth floor. No money or weapon was recovered from his body or the area around it.

The pathologist who examined the body testified that Daniels had been struck by two bullets in the chest. These bullets passed downward through his liver, diaphragm, bowel and abdomen, with one bullet exiting his body through the back. The other bullet was recovered and was described by the pathologist as a medium-caliber bullet of approximately .38-caliber size. According to the pathologist, death had resulted from massive internal bleeding in the chest and abdomen.

The police examined the apartment shortly after the shooting. They did not find any weapons, bullets, or blood.

After jury deliberations defendant was found guilty of the murder of Daniels, the armed robbery of Anderson, and the aggravated battery of Anderson, Harris and Blakley. He was found not guilty of the attempted murder of those latter three individuals and was also found not guilty of the armed robbery of Harris, Daniels, and Blakley.

I

Defendant’s contention that he was not proved guilty of murder beyond a reasonable doubt is based primarily on his assertion that no witness actually saw him shoot Daniels. Defendant then notes that no blood was found in the apartment where the shooting took place and that no money or gun was found on Daniels several flights of stairs from the apartment. Defendant contends that this constituted circumstantial evidence that Daniels was shot and robbed by another individual after Daniels fled the apartment. But in fact several of the State’s witnesses testified that they saw the defendant shoot Daniels. Danny Harris testified that defendant pointed a gun at Daniels, shot at Daniels, and Daniels then fell. Gwendolyn Ward testified that she saw defendant shoot Daniels in the chest, causing Daniels to fall back against a wall. The State’s evidence also established that Daniels was shot with a .38-caliber gun, the same caliber as the gun that Harris and Anderson testified was used by the defendant. It should also be noted that the absence of blood in the apartment did not contradict the State’s version of the shooting in light of the evidence that Daniels died as the result of massive internal bleeding and that he left the apartment almost immediately after being shot. Thus, this case is not analogous to that of People v. Holsapple (1975), 30 Ill. App. 3d 976, 333 N.E.2d 683, cited by defendant, in which a murder conviction, based solely on circumstantial evidence, was reversed based on what the reviewing court found to be strong circumstantial evidence that another individual had committed the crime. The State in this cause relied on eyewitness testimony that the defendant committed the murder.

Defendant has also noted that the testimony of those eyewitnesses was conflicting concerning such details as where individuals were located in the room and the order in which the victims were shot. However these inconsistencies merely constituted matters for the jury to consider in evaluating the credibility of the witnesses. (People v. Thomas (1981), 96 Ill. App. 3d 443, 421 N.E.2d 357.) A criminal conviction will be reversed for evidentiary insufficiency only where the evidence is so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused. (People v. Zolidis (1983), 115 Ill. App. 3d 669, 450 N.E.2d 1290.) We find no such basis for reversal on this record.

II

Defendant correctly contends that it was error for the trial court to impose extended-term sentences for the offenses of aggravated battery and armed robbery. An extended-term sentence may be imposed only for the class of the most severe offense of which a defendant is convicted. (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569; Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—2.) Thus, in this cause an extended term was permissible only for murder, the most serious felony of which defendant was convicted. Accordingly, we vacate defendant’s sentences for armed robbery and aggravated battery.

Ill

We also agree with the defendant that the trial court erred in imposing an extended-term sentence for murder. The trial court apparently relied on section 5—5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—5—3.2(b)(2)), which permits imposition of an extended term when a felony is “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” We have construed this statute as not permitting imposition of an extended term except when the degree of brutality or heinousness is exceptional. (People v. Fieberg (1982), 108 Ill. App. 3d 665, 439 N.E.2d 543; People v. Schlemm (1980), 82 Ill. App. 3d 639, 402 N.E.2d 810, cert. denied (1981), 449 U.S. 1127, 67 L. Ed. 2d 115, 101 S. Ct. 948.) In Fieberg, we reviewed a number of cases in which extended-term sentences were found to be proper, noting that those cases included such facts as a victim’s being beaten until unconscious and then being strangled to death, a stranger grabbing a victim on the street and then beating her face on the sidewalk, and a victim’s being kidnaped, stripped, beaten, and then being subjected to multiple acts of rape and sexual abuse by three men. More recent cases have involved such acts as causing a six-year-old girl to become intoxicated and then sexually attacking her in a manner causing a severe vaginal laceration (People v. Strait (1983), 116 Ill. App. 3d 110, 451 N.E.2d 631), and a stepmother beating her four-year-old son over a period of months, immersing his hands in scalding water and then failing to seek medical attention, resulting in his death. People v. Cox (1983), 113 Ill. App. 3d 136, 446 N.E.2d 1280.

In this cause the defendant entered a room where a dice game was being played, brandishing a gun, and then shot the deceased twice in the chest. For these acts he was properly convicted of murder. But we find no acts of exceptional brutality or heinousness in this conduct. To the extent the State attempts to rely on defendant’s actions in shooting the other victims, actions for which he also received lesser criminal convictions, this reliance is improper, as it is the most serious offense which must be accompanied by exceptionally brutal or heinous behavior, and the State may not rely on the nature of defendant’s actions which have resulted in other convictions. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520; People v. Fieberg (1982), 108 Ill. App. 3d 65, 439 N.E.2d 543.) Without deprecating the seriousness of the defendant’s conduct in this cause, we do not find that his conduct in shooting the deceased constituted such exceptional brutality or heinousness as to permit imposition of an extended-term sentence. Accordingly, his sentence for murder must also be vacated.

The defendant’s convictions are affirmed, but his sentences are vacated and the cause is remanded for a new sentencing hearing.

Convictions affirmed; sentences vacated and cause remanded.

LINN and JOHNSON, JJ., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD WILLIAMS, Defendant-Appellant.
    First District (2nd Division)
    No. 83—0604
    Opinion filed February 5, 1985.

      Thomas Peters, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney of Chicago (Michael E. Shabat, David C. Kluever, and Joseph R. Barbara, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Richard Williams (defendant) was convicted by a jury in the circuit court of Cook County of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18—2) and murder (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(3)) and was sentenced to concurrent terms of 40 years for murder and an extended term of 40 years for armed robbery. Defendant here contends that the trial court erred in denying his motion to suppress statements and physical evidence and that the sentences imposed were excessive.

At the hearing on defendant’s motion to suppress, Detective Minogue testified for the State: he and his partner, Detective Oravetz, were assigned to investigate the February 13, 1982, murder of Mr. Cha, who was found beaten and shot to death in the novelty store he owned in Chicago. On February 24, 1982, Detectives Oravetz and Minogue interviewed Lonnie Reid in connection with the Cha murder. After Reid was given his Miranda warnings, he told the detectives that he lived with defendant, defendant’s brother and defendant’s sister in the first-floor apartment at 6041 South Calumet, in Chicago. A few days before Cha’s murder, defendant had told Reid that defendant would like to rob Cha “if the opportunity arose and [defendant] needed some money.” Shortly after Cha’s murder, defendant brought to the apartment four bags of merchandise which defendant told Reid had come from Cha’s store. Reid stated that the two gold chains Reid was then wearing around his neck were given to him by defendant and that they too came from Cha’s store. Reid further advised the detectives that there was a .22 pistol in the apartment “hidden on a shelf near a horse.”

The police officers then presented Reid with a “consent to search” form for the apartment he shared with defendant, which Reid signed in their presence. The officers then went to the apartment building and knocked on the door of the apartment located on the first floor left. Ms. Belinda Shenault, defendant’s sister, opened the door. After introducing themselves as police officers, Ms. Shenault “allowed” them into the apartment, wherein defendant and his brother were arrested. The gun was recovered from the area designated by Reid, as were various items of merchandise which Minogue stated were similar to the kind of merchandise he had observed in Cha’s store. Ms. Shenault assisted the officers in their search for merchandise. At the police station, Minogue read defendant his rights and interrogated him for 30-45 minutes.

Detective O'Callaghan testified for the State: on February 25, 1982, at 9 a.m., he read defendant his rights and interrogated him. After some 30 minutes, O’Callaghan returned to defendant’s apartment and recovered several articles of clothing. Returning to the station, O’Callaghan further interrogated defendant for 15 minutes, after which O’Callaghan went to a novelty shop where additional merchandise taken in the Cha robbery was recovered. At 5 p.m. defendant confessed to his participation in the robbery and shooting of Cha.

Assistant State’s Attorney John Cooney testified that on February 25, 1982, at 7 p.m., he was present when defendant made a statement regarding the Cha killing; defendant was not beaten or threatened, and did not request an attorney. The State then rested.

The only witness called by defendant on his motion to suppress was Detective Silvestrini. Neither Shenault nor Reid testified. The court denied defendant’s motion to suppress, finding that Reid had executed a consent to search form, and that the police had probable cause to arrest defendant.

At trial the State introduced defendant’s confession in which he admitted that he and Reid had committed the crimes; evidence that clothing recovered from defendant’s apartment contained blood of Mr. Cha’s type; and the testimony of the owner of the novelty shop from which items taken in Cha’s robbery were recovered affirming that defendant had sold that merchandise to her.

Defendant contends that the search of his apartment and his arrest therein were illegal because the police were without a warrant, and the alleged “consent” to search the apartment was not shown to be voluntary.

The rule in Illinois is that:

“*** the police cannot enter a person’s apartment or home to effect a warrantless arrest based on probable cause alone. There must be factors of exigency justifying prompt police action [citations] or a showing of a consent to enter [citation].” (People v. Columbo (1983), 118 Ill. App. 3d 882, 928, 455 N.E.2d 733.)

In the instant case, we believe it clear that the police had probable cause to arrest defendant. Probable cause exists if a reasonable and prudent person in possession of the arresting officer’s knowledge would believe that the person arrested had committed a crime. (People v. Amft (1982), 109 Ill. App. 3d 619, 440 N.E.2d 924.) Reid’s statements that defendant, before the shooting, had expressed a desire to rob Cha and defendant’s subsequent action in bringing four bags of merchandise into the apartment which he stated were taken from Cha’s store, coupled with Reid’s testimony that there was a .22 gun in the apartment established probable cause for defendant’s arrest. See, e.g., People v. Beto (1980), 86 Ill. App. 3d 622, 408 N.E.2d 293.

Probable cause to arrest, alone, however, is not sufficient to justify a warrantless arrest in defendant’s apartment; the police must have a consent to search, or there must exist exigent circumstances justifying the police action. The State contends that here the police had the consent of two persons, Reid and Shenault, which justifies their action. It is true that consent need not be given by the defendant himself; it may be obtained from a third party who has control of the premises. (People v. Bean (1981), 84 Ill. 2d 64, 417 N.E.2d 608.) Defendant does not deny that Reid and Shenault could give valid consent for the search of the apartment; defendant does, however, contend that the State failed in this case to meet its burden to show that the consent given was voluntary.

“In warrantless arrest situations, the standard for valid consent to enter a dwelling which has been applied by the Supreme Court is whether the consent was voluntarily given. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.)” (People v. Columbo (1983), 118 Ill. App. 3d 882, 928.) It is the State’s burden to demonstrate that the consent was voluntarily given. “[T]he consent must be proved by clear and positive testimony and it must be established that there was no duress or coercion, actual or implied. The prosecution must show a consent that is unequivocal and specific, freely and intelligently given.” (People v. Wahlen (1982), 111 Ill. App. 3d 194, 196, 443 N.E.2d 728.) Voluntariness of consent is a question of fact to be determined from all of the surrounding circumstances. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.

To establish consent here, the State relies on two statements by Detective Minogue at the suppression hearing in which he testified that Reid “agreed” to sign the consent to search form, and in which he testified that Shenault “allowed” them into defendant’s apartment. We do not consider these statements to sufficiently establish a voluntary consent by either Reid or Shenault. In denying defendant’s motion to suppress, the trial court did not specifically address the issue of the voluntariness of either Reid’s or Shenault’s consent. We believe, therefore, that it is appropriate to return this case to the trial court for a hearing solely on the issue of the voluntariness of the consents) obtained. See People v. Lucas (1980), 88 Ill. App. 3d 942, 410 N.E.2d 1040.

Defendant’s second contention is that in light of defendant’s youth (25 years old), the trial court abused its discretion in imposing a 40-year sentence for murder, and a concurrent extended 40-year term for armed robbery. The evidence introduced at trial showed that when Reid and defendant discussed robbing Cha, Reid stated that it would be necessary to kill Cha because Cha knew Reid and could identify him. During the robbery, Reid and defendant beat and kicked Cha; Reid subsequently shoved a broom handle into Cha’s anus several times, and Reid then shot Cha in the head with a single shot from a .22 pistol. Defendant kept some of the robbery proceeds, and sold the remainder for $20. Defendant had a prior conviction for burglary in 1976.

The determination of an appropriate sentence is within the trial court’s discretion, and will only be modified if a reviewing court determines that the trial court has abused its discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The trial court here appropriately considered the statutory factors in aggravation and mitigation (Ill. Rev. Stat. 1981, ch. 38, pars. 1005—5—3.1 and 1005—5—3.2) and concluded that defendant’s conduct caused serious harm, that defendant had a history of prior criminal activity, that the sentence was necessary to deter others, and that the offense was accompanied by exceptional cruelty indicative of wanton cruelty. The sentences, therefore, were within the statutory limits prescribed by the legislature. Nor do we believe that defendant’s age or “potential for rehabilitation” require a lesser sentence. It is recognized that all criminal penalties are to be determined according to both the seriousness of the offense and with the objective of restoring the offender to useful citizenship. (See Ill. Rev. Stat. 1981, ch. 38, par. 1001—1—2.) The prime responsibility for striking the proper balance between these considerations rests with the trial court. (People v. Crosser (1983), 117 Ill. App. 3d 24, 452 N.E.2d 857.) We do not believe that the trial court abused its discretion in its determination in the instant case, and we therefore decline to modify defendant’s sentence.

For the above stated reasons, the judgment of the trial court is vacated and the cause is remanded for a hearing solely on the issue of whether a voluntary consent to the search of defendant’s apartment was made. If the trial court determines that a valid consent was given, it shall thereupon reinstate the original judgments.

Vacated and remanded with directions.

HARTMAN and BILANDIC, JJ., concur.

      At trial the State did not argue that the warrantless entry was justified by exigent circumstances; it relied solely on consent. The State’s motion in this court on the day before oral argument to file an additional argument attempting to justify the police action based on exigent circumstances was denied.


author: PRESIDING JUSTICE MEJDA

text:
      In re ESTATE OF JAMILA BEATRICE BECTON, a Minor (Stanley Becton, Petitioner-Appellant, v. Mamie Sanders, Cross-Petitioner-Appellee).
    First District (5th Division)
    No. 83—1944
    Opinion filed February 1, 1985.

      Wendy Meltzer, Marilyn Johnson, and Sharron Pitts, all of Legal Assistance Foundation, of Chicago, for appellant.
    Harvey Sussman, of Sussman & Hertzberg, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Appellant, Stanley Becton, the putative father of Jamila Beatrice Becton, and appellee, Mamie Sanders, the child’s maternal grandmother, each filed a petition for guardianship of the estate and person of the child born on January 4, 1983. Following denial of appellant’s petition, the court granted the grandmother’s petition. Further orders awarded care, custody and control of the minor child to the grandmother and T. J. Sanders, the maternal grandfather, and provided limited visitation to the appellant.

Appellant appeals from the orders which denied his petition and awarded both custody and guardianship to the maternal grandmother. Appellant’s brief presents three specific issues for our review: (1) whether the appellant’s superior right as father was overcome to warrant the award of custody to the maternal grandparents, (2) whether evidence about drug use or possession by him was properly admitted into evidence, and (3) whether permitting limited visitation was an abuse of discretion.

On May 23, 1983, appellant filed his petition requesting appointment as guardian. That petition stated that the child’s mother had died and requested that he be named guardian of the estate and of the person of the child. He stated that he was a 32-year-old postal clerk. In an attachment to the petition, he stated that he was the child’s father and had lived with the child’s mother for six years. Also attached was the child’s birth certificate, which listed appellant as the baby’s father and “Linda Fay Sanders,” 28, as the child’s mother. An attached death certificate showed that “Linda Fay Ivy,” 28, and “divorced,” died as a result of a fall on April 21, 1983; that the fatal accident occurred on a Chicago street on March 24, 1983; and that she had sustained a pulmonary embolism as a result of an ankle fracture.

At the initial hearing, appellant testified that the child was his daughter and that Linda was the child’s mother. The two had lived together for six years until her death. At that time, he moved into his parents’ first-floor apartment. His two sisters lived together on the second floor of the same building, and an aunt lived in a third-floor apartment. He testified that he was employed as a janitor and that his compensation was set at $550 a month. On cross-examination, it was established that he had worked at the post office until December 1979. Since then, he had been employed six months in 1980 by the Chicago Boys Club and two months in 1981 as a telephone salesperson. He testified that he had only been working at his present position for one week. During these years of intermittent employment, he had received unemployment compensation and general assistance benefits.

Additional testimony was taken at a June 2, 1983, hearing at which the maternal grandparents testified. T. J. Sanders testified that he and Mamie were Linda’s parents and had lived in their four-bedroom home for 25 years. Appellant, whom he had known for six years, had not worked for several years, but had received public aid benefits. The child was placed in the grandparents’ home about two months before Linda's death because the baby had been born with medical problems. The grandfather stated that appellant first mentioned his interest in guardianship of the child after talking with a lawyer about filing a lawsuit against a hospital and the police department concerning Linda’s death.

According to the grandfather, appellant had previously indicated that he wanted them to raise the child because, after Linda’s death, appellant had no permanent home. The grandfather testified that he had retired from Inland Steel after 35 years, but still worked as a mechanic and a minister. When examined by the court, he stated that appellant was not fit to be the guardian of the child because of his poor employment record; that “if a man loves his family he will work and take care of them”; that appellant “smokes reefers, and all that dope, and stuff”; and that his presence around the baby at times caused her to have breathing difficulty. He also expressed his fears that if the child grew up inhaling her father’s marijuana smoke she might “become a dope addict herself.”

Mamie Sanders corroborated her husband’s testimony. They first took custody of the child on February 20, 1983, at their daughter’s request because the baby had difficulty breathing due to a lung condition. The grandmother attributed the problem to the child’s being around smokers. She identified a physician’s report which characterized the baby as a high-risk infant. She had asked appellant not to smoke around the baby, but he had not acquiesced. She stated that his habit of smoking “reefer cigarettes” was damaging the baby’s health and that his smoking was her only objection to his having custody.

Billie Mathews, a friend of Linda, testified that although she had limited contact with the appellant, the few times she was in his presence, “[h]e was always high. He also was under the influence of marijuana.”

The appellant was recalled as a witness. He testified that the grandparents took the child about two days before Linda’s death. Although the child had been born with fluid on the lungs, she had fully recovered and her physician had given her a “clean bill of health.” He denied ever telling the grandparents that he wanted them to raise the child. In fact, he stated that he had gone to their home and demanded the child but the grandparents refused on the grounds that the baby was in poor health. On one occasion, T. J. Sanders had displayed a gun and demanded that he leave. Appellant had offered the Sanders $100 towards the child’s expenses, which they refused. While he lived with Linda, he contributed $100 monthly towards her rent payment.

Under examination by the court, appellant testified that he had smoked marijuana on “one occasion,” but never smoked marijuana or cigarettes in the grandparents’ home because they did not allow it. Linda had asked him not to smoke in her parents’ home because of their strong feelings about the matter.

Gloria Becton, appellant’s mother, testified that her son was capable of managing his own affairs, holding a job and taking care of the baby. She further testified that his two sisters, ages 25 and 28, who lived in the same building, would also care for the baby.

Linda’s landlord testified that although she had never seen appellant smoke marijuana, she had seen “some seeds” and “what they call roaches” in Linda’s apartment.

On June 3, 1983, an order was entered which denied appellant’s petition for guardianship, awarded custody to the grandparents, and granted appellant visitation twice a month. A judgment order entered June 6, 1983, found that appellant and the grandparents were each fit and proper persons and that it is in the best interest of the child to remain under the care, custody and control of the grandparents. It ordered that the child remain under the care, custody and control of the grandparents, Mamie Sanders and T. J. Sanders; that appellant have the right of visitation twice a month; and further that appellant’s petition for guardianship was denied.

Thereafter, on June 7, 1983, the grandmother, Mamie Sanders, filed an “amended” petition for her appointment as guardian. An order was entered on that date appointing her guardian of the estate and person of the child and approving bond of the guardian.

Subsequently, on June 14, 1983, appellant appeared with new attorneys and made application to sue or defend as a poor person. The application set forth that he was employed as a janitor by Claretha Brown and John Becton at $350 per month and had an income for the preceding year of $1,728. The application was granted and an order entered providing that the circuit court be responsible for fees for a transcript of the hearing held on May 23, June 2, and June 3, 1983.

Appellant on July 5, 1983, filed a motion to vacate judgment and for additional relief. His motion that the orders of June 2, June 6, and June 7, 1983, be vacated, for a new trial and appointment of a guardian ad litem of the child therein, for joint custody, and for more liberal visitation was denied. However, the order provided that appellant be permitted to visit with the child one day every other weekend for four hours at a time in the home of the grandparents and that the grandparents are not to be present during the visit. Upon appellant’s motion to clarify or amend the foregoing visitation, an order was entered July 28, 1983, denying his request that no member of the Sanders family be present in the home during his visits. It granted his request that the grandparents not be present in the room, further providing that appellant’s visits are to occur on alternating Saturdays and Sundays between 12 noon and 4 p.m. Appellant filed a notice of appeal on August 8,1983.

Opinion

Appellant initially contends that his superior right to custody of his daughter was not overcome by any good cause or reason to require award of custody to the grandmother. The grandmother argues that the court, while recognizing the putative father’s presumptive right to custody, was primarily guided by the best interests of the child and that the evidence rebutted the presumptive right.

Illinois courts have acknowledged the right and correlative responsibility of a parent to care for his or her child as being a basic human right, fundamental and as ancient as mankind. (In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231.) This right is expressed by the Illinois General Assembly in section 11—7 of the Probate Act, which provides:

“Sec. 11—7. Parental right to custody. If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education. If one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled. The parents have equal powers, rights and duties concerning the minor. If the parents live apart, the court for good reason may award the custody and education of the minor to either parent or to some other person.” (Ill. Rev. Stat. 1983, ch. 1101/2, par. 11—7.)

In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231, is the leading case involving a custody dispute between a natural parent and a third party. In Townsend the court emphasized that the parent’s interest in the care, custody and control of the child may not be ignored or facilely swept away in the face of a competing third-party custody petition. The court stated:

“In child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person. The presumption is not absolute and serves only as one of several factors used by courts in resolving the ultimately controlling question of where the best interests of the child lie. [Citations.] A court need not find that the natural parent is unfit or has forfeited his custodial rights before awarding custody to another person if the best interests of the child will be served. [Citations.] This standard or ‘guiding star’ (Nye v. Nye (1952), 411 Ill. 408, 415[, 105 N.E.2d 300]) is a simple one designed to accommodate the often complex and unique circumstance of a particular case.” (86 Ill. 2d 502, 508, 427 N.E.2d 1231, 1234.)

The burden is on the third party, in this case the grandparents, to “establish good cause or reason to overcome the presumption that *** the natural father *** had the first and superior right to the custody of his daughter.” (86 Ill. 2d 502, 515, 427 N.E.2d 1231, 1238.) In other words, the presumption in favor of awarding custody to a natural parent is rebuttable and may be overcome by a demonstration of good cause or reason for a nonparent to be awarded custody.

Our review of the trial court’s decision must be guided by the fact that the trial judge was in the best position to observe the parties and their demeanor while testifying. Such findings should not be disturbed unless they are patently against the manifest weight of the evidence. Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 158 N.E.2d 613; In re Custody of Piccirilli (1980), 88 Ill. App. 3d 621, 410 N.E.2d 1086.

As Townsend indicates, the superior rights doctrine is subservient to the best interests of the child. Here, the trial court stated that it felt unjustified in awarding custody to the natural parent because of the length of time in which the grandparents cared for the child. It must be noted, however, that the time which a court should consider in determining whether a substantial period has elapsed ends with the filing of a petition for custody. (See In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231.) The time in the instant case during which the grandparents cared for the child was even more brief than the six months found insufficient in Townsend. (Cf. In re Custody of Henkins (1983), 117 Ill. App. 3d 666, 453 N.E.2d 78 (custody in grandparents for six years); Look v. Look (1974), 21 Ill. App. 3d 454, 315 N.E.2d 623 (custody in grandparents for five years); Mackie v. Mackie (1967), 88 Ill. App. 2d 61, 232 N.E.2d 184 (custody in grandmother for five years).) Accordingly, the few months during which the grandparents cared for the child are insufficient, when standing alone, to rebut the presumption in favor of the natural parent.

This conclusion does not dispose of the larger question of whether the evidence supports a finding that an award of custody to the grandparents is in the child’s best interests. This court must view the evidence introduced at trial and the inference drawn therefrom in the light most favorable to the party prevailing below. (Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47.) Applying this rule, we cannot conclude that the trial court’s decision was against the manifest weight of the evidence. The grandfather testified that appellant requested that he and his wife care for the child because appellant had no permanent home. In sharp contrast, the grandparents’ home environment offers substantial stability. (See generally Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 158 N.E.2d 613.) The grandfather further testified that appellant had shown no interest in custody of the child until after talking with an attorney about filing a lawsuit pertaining to Linda’s death. Moreover, appellant admitted that he had paid nothing towards the child’s support, although citing one occasion when he offered the grandparents $100, which they refused. Testimony was also adduced that appellant had not contributed towards the child’s medical care.

While mere financial disparity is insufficient to deprive a natural parent of the custody of his or her child, the right of a parent to care for his child is associated with concomitant responsibilities. (In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231.) When a parent’s actions show that he or she has, for all practical purposes, abandoned a child, the courts have not hesitated to find that placement with others would be in the best interests of the child, even absent a showing that the natural parent is unfit. Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 158 N.E.2d 613.

Although a trial court’s findings are always subject to review, such findings should not be disturbed unless the trial court’s holding is against the manifest weight of the evidence. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 226 N.E.2d 624.) In Schulenburg, the Illinois Supreme Court explained this rule, stating:

“Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence ***. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.” (37 Ill. 2d 352, 356, 226 N.E.2d 624, 626.)

Mindful of these precepts, we conclude that the trial court’s finding of the best interests of the child was not against the manifest weight of the evidence. Our review of the record shows that evidence exists which supports the trial court’s order awarding custody to the grandmother. See Gibson v. State Farm Mutual Automobile Insurance Co. (1984), 125 Ill. App. 3d 142, 465 N.E.2d 689.

Appellant next contends that the trial court committed reversible error in admitting testimony of his alleged use and possession of marijuana to overcome the presumption that the best interests of the child required the award of custody to her father. Mamie Sanders, the maternal grandmother, responds that petitioner’s prior counsel did not object to the evidence and therefore any error as to its admission has been waived. However, although the failure to object ordinarily constitutes a waiver of any error on appeal, such technicality cannot prevail where the court is here confronted with protecting the rights of a minor. (Fears v. Fears (1972), 5 Ill. App. 3d 610, 283 N.E.2d 709.) In such circumstances, we have a duty to see that the rights of the infant are adequately protected and are bound to notice substantial irregularities, even though objections are not properly preserved in the trial court. Muscarello v. Peterson (1960), 20 Ill. 2d 548, 555, 170 N.E.2d 564.

It is well established that the extent of a parent’s use of marijuana and that parent’s resulting conduct and physical condition are relevant upon the issue of custody, but only if that parent’s use of the substance can be shown to affect that parent’s mental or physical health and that parent’s relationship with the child. (In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 420 N.E.2d 555.) Furthermore, such testimony requires a proper foundation (Johnson v. Tipton (1982), 103 Ill. App. 3d 291, 431 N.E.2d 464), and must be based on personal knowledge and not be merely speculative or conclusory. Gerler v. Cooley (1963), 41 Ill. App. 2d 233, 190 N.E.2d 488.

Several witnesses testified about appellant’s alleged use and possession of marijuana. Under examination by the court, appellant admitted he had smoked marijuana on “one occasion” but denied he ever smoked marijuana or cigarettes in the grandparents’ home because of their strong feeling about the matter. The grandfather, T. J. Sanders, testified that appellant was not fit to be guardian because of his poor employment record and that he “smokes reefers, and all that dope and stuff” and his presence caused the baby to have difficulty breathing. Mamie Sanders, the grandmother, stated that appellant did not acquiesce in her request that he not smoke around the baby and that his habit of smoking “reefer cigarettes” was damaging the baby’s health. Billie Mathews, Linda’s best friend, testified that in the about three times she was in the appellant’s presence, “[h]e was always high. He also was under the influence of marijuana.” Linda’s landlord stated she had never seen appellant smoke but had seen “some seeds” and “what they call roaches” in Linda’s apartment.

Appellant admitted that he had on one occasion smoked marijuana and denied ever smoking in the presence of the .child. However, there was no evidence to indicate appellant’s addiction or regular use of marijuana or other drugs. Neither was there any evidence to establish when the alleged smoking took place, nor whether it took place before or after birth of the child. Likewise, there was no evidence or explanation as to the ability or manner in which the other witnesses were able to identify the alleged “reefer cigarettes” and “roaches” as in fact being marijuana or other prohibited substances. Furthermore, there was no showing that such alleged use affected appellant’s mental or physical health or in any way affected, or would affect, his future relationship with the child. In sum, the testimony as to marijuana and to its relevance upon appellant’s relationship with the child was without proper foundation, and at most, speculative and conclusory. As such, the testimony was improper and subject to being excluded upon the assertion of timely objections.

Although we find the testimony as to appellant’s alleged use and possession of marijuana to have been improperly received, reversal of the orders as to custody and guardianship is not required. In the absence of contrary indications, a trial judge sitting without a jury is presumed to have considered only competent evidence in reaching his decision. (Diamond v. Board of Fire & Police Commissioners (1983), 115 Ill. App. 3d 437, 450 N.E.2d 879.) In fact, the court in the instant case entered an order finding appellant a fit and proper person to have the care, custody and control of the child, and by further orders determined appellant was to be granted visitation rights. These findings demonstrate that the trial court did not rely on the testimony here challenged in awarding custody and in appointing the guardian herein. The paramount concern in each instance is the best interests and well-being of the minor child. On this record, we find no abuse of discretion in the selection of the grandmother to be the custodian and guardian for the child herein. Accordingly, the improper evidence presented does not require reversal of the orders awarding custody and appointing the guardian.

Appellant finally contends that the trial court abused its discretion in allowing him only very limited visitation with his child, and then only in the home of the maternal grandparents. He argues that the restrictions are manifestly unfair and should be relaxed. The visitation order ultimately provided for visitation in the home of the grandparents on alternating Saturdays and Sundays between 12 noon and 4 p.m. and that the grandparents not be present in the room during visitation. The appellee grandmother in her brief and at oral argument agreed that the visitation should be expanded, especially as the child grows older. We concur.

The court herein upon appointment of the guardian obtained continuing control over the person and estate of Jamila, the minor ward, and the guardian’s custody remains under the court’s control and direction. (Ill. Rev. Stat. 1983, ch. 11101/2, par. 11—13.) Since the father of a child born out of wedlock is no longer barred from obtaining custody, courts now consider the familiar “best interests of the child” standard and recognize his visitation rights upon a showing that his visits will not be detrimental to the best interests of the child. (People ex rel. Vallera v. Rivera (1976), 39 Ill. App. 3d 775, 777, 351 N.E.2d 391, 393.) The sole responsibility of the trial court is to provide for the best interests and welfare of the minor ward; the minor child must be protected first, the feelings and desires of the adult parties are inferior thereto. In re Estate of Stark (1975), 33 Ill. App. 3d 626, 629, 342 N.E.2d 234, 236.

The standard for judicial review of visitation orders, normally within the broad discretion of the trial court, is whether a manifest injustice has been done. (Rodely v. Rodely (1963), 28 Ill. 2d 347, 192 N.E.2d 347.) The welfare of the child usually requires that the noncustodial parent be given liberal visitation rights so that the child will not be estranged from that parent. (McManus v. McManus (1976), 38 Ill. App. 3d 645, 647, 348 N.E.2d 507, 509.) Moreover, fairness and good conscience require that a noncustodial parent who is found fit and proper to have custody be granted visitation which does not require him to stay in the home of the custodian whether or not the latter is present. (See Patton v. Armstrong (1972), 6 Ill. App. 3d 998, 1002, 286 N.E.2d 351, 354.) The restrictions imposed on the visitation rights granted to appellant are not supported by the record herein and are manifestly unjust and not necessary.

The trial court expressly found that appellant and the grandparents were each fit and proper persons to have custody of the minor child herein. Consistent with the principle that the welfare of the child is the paramount consideration in determining visitation by a noncustodial parent, orders allowing visitation by a parent are favored to foster and maintain a familial relationship. There is the ever-present possibility that a parent out of custody may at some time in the future be charged with or acquire that responsibility. The restrictions imposed were not shown to be necessary for the child’s physical, mental, moral or emotional health (see Ill. Rev. Stat. 1983, ch. 40, par. 607(a)) or otherwise required in the best interests of the child. Modification of the terms and conditions of visitation consistent with the foregoing are directed to be entered upon agreement of the adult parties or, if the parties do not agree, to be set by the trial court on remand. Of course, it is to be noted that if in practice the visitation privilege is abused, the orders pertaining thereto remain subject to further modification. 16A Ill. L. & Prac. Divorce sec. 233 (1971).

For the reasons stated, the orders of the trial court appointing guardian and awarding custody are affirmed; the orders as to visitation are vacated and the cause remanded to the trial court with directions to modify the same as hereinbefore set forth.

Affirmed in part; vacated in part and remanded with directions.

SULLIVAN and O’CONNOR, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MANUEL YERO TORRES, Defendant-Appellant.
    First District (5th Division)
    No. 83—0570
    Opinion filed February 1, 1985.

      James J. Doherty, Public Defender, of Chicago (Milton S. Travis, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Timothy J. Joyce, and Patrick J. Foley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant Manuel Yero Torres was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9—1) and sentenced to 28 years’ imprisonment. He appeals and contends that he was prejudiced by the erroneous introduction of hearsay motive testimony, and that he was denied the opportunity to present evidence of the victim’s gang affiliation. The following facts pertain to our decision.

At about 6:30 p.m. on May 21, 1981, David Caceres went to the 2600 block north on Spaulding Avenue, along with Edgar Vega, Antonio Rios, and Danny. Edgar Vega testified that Caceres had planned to tatoo him, and in order to borrow the necessary inks and needles, they went to see defendant. Defendant was in front of his apartment building when the group arrived, and while defendant and Caceres entered the building, Vega waited outside. Fifteen minutes later, Vega heard “somebody get smacked.” He turned and saw defendant strike Caceres two or three times. Caceres moved toward Vega, who extended his cane toward Caceres; but Vega saw defendant pull a revolver from the back of his pants, so he withdrew the cane and gestured toward defendant. Caceres then saw the gun, and ran away. Defendant shot two or three times; Caceres fell to the ground 50 feet past Vega. Vega testified that defendant approached Caceres, who was face down on the ground, and fired two or three more bullets into him.

On cross-examination, Vega admitted that he had said at preliminary hearing that defendant fired “at least nine times,” but he explained that defendant “clicked” the gun several times after the bullets ran out. Defense counsel asked whether he had told the police at the scene that he gave the cane to Caceres, that Caceres turned upon defendant, and that it was only then defendant pulled the gun. Vega responded that he wasn’t sure, but he could see how the police could get that impression in the confusion. Vega said he tried to chase defendant, but defendant ran too fast. Vega admitted that he had belonged to the Orchestral Albany (OA) street gang when he was in eighth grade, but he stated that he was not a member at the time of the shooting.

Antonio Rios substantially corroborated Vega’s testimony. He saw defendant strike Caceres two or three times, saw Caceres fall back toward Vega, and saw Vega reach toward Caceres with his cane. Next, he heard shots, but at this time, saw no gun. Caceres ran in Rios’ direction and defendant chased him, shooting the gun, which Rios then saw. Rios stated that Caceres fell on his stomach 10 feet short of where he, Rios, was standing, and that defendant walked up to Caceres, pointed the gun at his lower spine, and fired three shots. Rios stayed with Caceres while Vega chased defendant.

Rios testified that he asked Caceres “what this was all about.” Defendant objected to hearsay. Away from the jury, the State argued that Caceres’ hearsay statement should be admitted as a spontaneous utterance, as a dying declaration, or as part of the res gestae. Defendant argued that a response to a question is not spontaneous, and that defendant was entitled to a hearing if the State wanted to introduce a dying declaration. The trial court denied all defense objections.

Before the jury, Rios testified that Caceres “told me that he had owed him $30 and he got shot over that,” and that the $30 was “[f]or dealing reefer.” Rios said that he had seen defendant about twice weekly prior to the shooting, when defendant was selling marijuana on Spaulding. Rios recalled that he was walking his bicycle that evening, and Danny was on roller skates.

On cross-examination, Rios said that at the time of the incident, he and Vega were about 16 years old, and Danny was about 14. He denied that he had told the police that defendant fired only after Caceres menaced defendant with the cane. Rios admitted that he and Vega had been members of the Orchestral Albany street gang, but said that that was a long time ago. On redirect, Rios said that Caceres had not been a member of the OA’s, that OA members were primarily of Puerto Rican descent, and that he knew Caceres to be Cuban.

Ernesto Garcia testified that he heard shots and saw defendant stand over Caceres and shoot him. Garcia had been at defendant’s apartment several days before the incident, and defendant had told him that he was going to shoot Caceres over $5. Several minutes after the shooting, defendant told Garcia that he shot Caceres because “he felt like it.” Garcia stated that he was serving a prison sentence for aggravated battery and armed violence. He knew the victim and the defendant, and he knew that both were Cuban.

The Cook County medical examiner testified that the victim had five bullet wounds: four in the back, another near the left knee. The victim died at 4:40 a.m. on May 22, 1981, and the medical examiner opined that the bullet wounds caused death. He indicated that the wounds were consistent with the victim’s running away from defendant and with the victim lying on his stomach when he was shot. The victim was 5 feet 5x/2 inches, 164 pounds.

During his case, defendant called Chicago police officer Clifford Wood. Wood stated that he was one of the first officers on the scene, and that he prepared the police report. He recalled that someone had said that defendant pulled the gun when he saw Caceres coming at him with a cane, but he could not recall whether Vega, Rios, or someone else had made the statement. He said that comments were offered by many citizens whose names did not appear in the police report, and that the report’s narrative was a composite of his understanding of what was said.

Defendant testified that he was born and raised in Cuba, and that he came to the United States in 1980. He met Caceres, also Cuban, in November of 1980. Defendant said that in April of 1981, about a month before the shooting, he and Caceres had a conversation at the corner of Diversey and Kedzie. The State objected to hearsay, and the court sustained the objection. Asked what Caceres did after the conversation was over, defendant testified that Caceres struck him and threatened to kill him. The State renewed its objection, and the trial court held a hearing away from the jury.

Defense counsel indicated that defendant would testify to Caceres’ statements concerning gang affiliation, robberies and other violence. Defense counsel argued that the testimony was not hearsay because it was offered to establish the defendant’s state of mind relative to self-defense and was not offered for the proof of the matter asserted. The trial court stated, “[I]t is clear to me as it is to anybody with any experience that [the statements] are only being offered by the defense to dirty up a dead man,” and ruled that defendant could testify to Caceres’ actions and threats, but that defendant would not be permitted to recount Caceres’ statements of gang affiliation or other crimes.

Examination resumed, and defendant testified that Caceres had told him that he was having problems with the gang. Defendant advised Caceres to stay away from gangs. He said that the two of them had left Cuba to change their lives, and he questioned why Caceres should become involved with gangs and their problems. Defendant then repeated his testimony that Caceres struck him and threatened to kill him. Also in April, Caceres came to defendant’s apartment and asked him to store a gun and two boxes of ammunition.

Defendant testified that on May 21, 1981, he was in his apartment when Caceres called to him from the street, asking for the gun. Defendant brought the gun downstairs, but not the ammunition, and he said that he did not know whether the gun was loaded. Caceres said, “Remember that I said I was going to kill you,” then slapped defendant. Caceres walked over to Vega and took the cane, brandished it menacingly and approached defendant. Defendant pulled out the gun, pointed down, turned his face, closed his eyes and fired. Defendant said that he was afraid of Caceres and the others with him, and hoped the gun or a shot would scare them away. He then walked away from the scene and disposed of the gun.

From photographs of graffiti on the 2600 block of Spaulding, defendant identified gang insignia which Caceres had told him were OA gang markings. Defendant loaned Caceres neither $30 nor $5; he had no ink and no needles. Defendant stated that Ernesto Garcia had never been in his apartment, and that Garcia was at the lake with a mutual friend on the day of the incident. Defendant explained that he did not come forward after the shooting because he was afraid of the police, Vega, Rios and Caceres’ group.

On cross-examination, the assistant State’s Attorney asked defendant whether he had given Caceres “six nickel bags of marijuana” valued at $30. Defendant objected, but the trial court overruled the objection, stating that it was better to have defendant’s answer before the jury. Defendant denied any and all involvement with marijuana.

In closing argument, the assistant State’s Attorney said that there was evidence that defendant supported himself by selling marijuana on Spaulding. Defense counsel stressed the gang-related nature of the crime, arguing that “David Caceres was more content to be a gang member, the kind of person who goes out and does the type of things you read about in the papers every day.” Fourteen times, at least, defense counsel referred to Vega or Rios as gang members, and he suggested that Vega and Rios concocted a story to avenge their fellow gang member, Caceres.

The jury found defendant guilty of murder, and the trial court sentenced him to 28 years in prison. Defendant filed a timely notice of appeal.

Opinion

Defendant first contends that the trial court erred in permitting Rios to relate Caceres’ statements immediately following the shooting. He maintains that the victim’s statements were not spontaneous because they were made in response to questioning. Defendant further complains that numerous drug references by the prosecutor, including the “six nickel bag” question, were improper, and that the prejudice engendered by these references outweighed the probative value of the evidence.

Illinois recognizes an exception to the hearsay rule for spontaneous declarations where three factors are present: (1) an event sufficiently startling to produce an unreflecting statement; (2) a statement which relates to the circumstances of the event; and (3) absence of time to fabricate. (People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804.) Such exclamations are considered reliable in theory because the shocking occurrence paralyzes the ability to fabricate, producing a statement which expresses the true belief of the declarant. (People v. Damen (1963), 28 Ill. 2d 464, 471, 193 N.E.2d 25.) Consistent with this rationale, one could argue that posing a question to the declarant necessarily engages the declarant’s reflective faculty and destroys spontaneity, but our supreme court has rejected this analysis. In People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25, the court held that a victim’s statements to a police officer were properly admitted as spontaneous declarations, even though the statements were made in response to the officer’s question, “What happened?” The court stated that the question was insufficient to destroy the spontaneity of the statement. (28 Ill. 2d 464, 472, 193 N.E.2d 25.) More recently, this court held that asking the declarant “Who did this to you?” did not destroy the spontaneity of the response. (People v. Sanchez (1982), 105 Ill. App. 3d 488, 491-92, 434 N.E.2d 395.) We conclude that the issue is not simply whether the declarant reflected; rather, it is whether the statement was produced by the shock of the event or by the self-interested reflective faculty of the declarant.

Applied to the facts at hand, we find that Caceres’ statements were properly admitted as spontaneous declarations despite Rios’ question. Certainly, being shot five times qualifies as a startling event. The statements concerned the shooting and were made almost immediately afterwards. It is true that reasoning is involved in responding to a question, but the same is true of all meaningful speech. We believe that the statements at issue were dominated by the shooting and not by Caceres’ self-interest.

With respect to the other drug references, we believe that defendant’s complaints are meritless. Defendant failed to object contemporaneously to comments during opening and closing arguments, and failed to specify such comments as error in his post-trial motion. Similarly, Rios’ testimony, that he had seen defendant dealing marijuana on Spaulding, was unchallenged at or after trial. Therefore, we consider any error in such comment and testimony to have been waived. See People v. Carlson (1980), 79 Ill. 2d 564, 576-78, 404 N.E.2d 233, and authority cited therein.

Further, if we reached the merits, we would approve the testimony and comment at issue. Caceres’ statements tended to show defendant’s motive for the crime, thus Rios’ testimony was a relevant explanation of motive. Contrary to defendant’s assertion, the prosecutor’s cross-examination concerning “six nickel bags of marijuana” was not baseless; rather it was based on Caceres’ statement that he owed defendant $30 for marijuana, Rios’ testimony that defendant dealt marijuana, and Garcia’s testimony that defendant intended to shoot Caceres over $5. It is well settled that a defendant who testifies on his own behalf subjects himself to legitimate and pertinent cross-examination, the scope of which rests in the sound discretion of the trial court. (People v. Provo (1951), 409 Ill. 63, 68-69, 97 N.E.2d 802.) Since the question had some basis in evidence, the trial court did not abuse its discretion by permitting defendant to respond. All of these matters being properly in evidence, the assistant State’s Attorney was entitled to comment. See People v. Warmack (1980), 83 Ill. 2d 112, 125-26, 413 N.E.2d 1254.

Finally, with respect to drug references, we reject defendant’s argument that prejudice outweighed probity. Defendant relies upon People v. Battle (1962), 24 Ill. 2d 592, 182 N.E.2d 713. In that case, the State’s theory of motive was that the victim had informed the police of the defendant’s narcotic sales, and the defendant sought revenge. Our supreme court disapproved testimony of narcotics sales because the State adduced no evidence that the defendant knew that the victim had informed the police: the evidence failed to establish a logical connection between drugs and the shooting. (24 Ill. 2d 592, 596-97.) By contrast, the testimony in this case fully sustains that connection. Rios testified that Caceres said he was shot over $30 for dealing marijuana. The testimony was highly probative on the issue of motive, and no unfair prejudice resulted.

Defendant next contends that the trial court erred in excluding testimony to Caceres’ involvement in gang-related shootings and robberies. The State argues in the alternative that defendant’s offer of proof was inadequate, that the testimony was properly excluded, or that the exclusion, if error, was harmless. We believe that defendant’s offer of proof was sufficient, and that the trial court’s ruling was error.

The State first maintains that defendant’s offer of proof was inadequate in that it did not show “how those alleged facts affected defendant’s state of mind,” and did not provide a basis for the trial court to conclude “that these allegations of the victim’s prior activities could be substantiated.” We are aware of no rule which requires that an offer of proof contain references to corroborative evidence, and the State suggests no reason that the law should be so. “[H]ow those alleged facts affected defendant’s state of mind” is obvious: the victim’s statements to defendant concerning gang-related shootings and robberies could be found by the jury to have contributed to defendant’s fear of the victim, his perception of danger at the time, and his motive. See People v. Stombaugh (1972), 52 Ill. 2d 130, 139, 284 N.E.2d 640.

At trial, the State’s objection went to the hearsay nature of the evidence. Defense counsel stated that defendant would testify to Caceres’ statements that he had participated in gang-related robberies and shootings, and counsel argued that the statements were not hearsay because they were offered to show defendant’s state of mind at the time of the shooting and not to show that Caceres participated in other crimes. In our view, this offer of proof sufficiently apprised the trial court of the nature of the evidence and the proposed basis for admission.

Moreover, we believe that the trial court erred in excluding defendant’s testimony as set forth in the offer of proof. The court ruled that defendant could testify to his personal observations of Caceres and to any threats, but that he could not repeat statements of gang affiliation or other crimes. The court stated that such evidence was irrelevant and untestable, and was offered only to “dirty up a dead man.”

The State concedes that threats and acts of violence by the victim are admissible to show the defendant’s state of mind, but argues that defense counsel sought to elicit the victim’s reputation for violence, and that such testimony is inadmissible. The State’s reading of the record is strained. The offer of proof extended beyond reputation and focused upon the victim’s statements as they affected defendant’s state of mind. The trial court’s ruling broadly forbade testimony to gang affiliation and other crimes.

In People v. Gonzalez (1984), 104 Ill. 2d 332, the trial court prohibited all references to gang affiliation. There, the defendant maintained that one of the State’s witnesses had framed him in order to “get even” for the defendant’s having quit the gang. Our supreme court held that the defendant was unfairly limited in presenting his theory of defense, and noted:

“Illinois courts have often held questions regarding gang affiliation proper when the State has sought to introduce evidence of the defendant’s gang activities, in spite of the risk of prejudice to the defendant. [Citations.] Simple justice requires a symmetrical rule that allows a defendant to ask such questions on cross-examination to show bias in a State’s witness.” (104 Ill. 2d 332, 338.)

Although gang affiliation went to a different issue in Gonzalez, we believe that the principle enunciated is applicable here.

The trial court’s ruling in this case unnecessarily restricted defendant in the full presentation of his theory of self-defense. The testimony offered was both relevant and capable of being tested: relevant to defendant’s state of mind, and capable of being tested by cross-examination. The absence of corroboration diminished the weight of the evidence, but did not affect its admissibility. If the trial judge felt that the testimony would “dirty up a dead man,” he could admonish the jury that the evidence was not offered for its truth. While protection of the victim’s reputation is laudable, protection of defendant’s right to place relevant evidence before the jury is essential.

Finally, the State argues that the error was harmless, and we agree. The Illinois Supreme Court has outlined three approaches to measuring error: (1) focusing on the error to determine whether it contributed to the conviction; (2) examining other evidence to see if it overwhelmingly established guilt; and (3) deciding whether the evidence was merely cumulative or duplicative. (People v. Wilkerson (1981), 87 Ill. 2d 151, 157, 429 N.E.2d 526.) We believe that the testimony actually excluded was largely cumulative, that such testimony would contribute little to the jury’s resolution of the facts, and that the evidence overwhelmingly established defendant’s state of mind.

The record reveals that defendant testified to Caceres’ gang affiliation more than once, despite the trial court’s ruling. He testified that Caceres said he was having problems in the OA’s, that Caceres explained the OA gang graffiti, and that defendant feared Caceres’ “group.” Defendant testified further that one month before the shooting, Caceres struck him and threatened to kill him, and that immediately before the shooting, Caceres struck him, renewed the threat, then menaced him with a cane. In addition, defendant testified that Caceres had asked him to hold a gun and ammunition.

Defense counsel cross-examined prosecution witnesses regarding gang affiliation. In closing argument, defense counsel argued not only that Vega and Rios were involved in a gang, but also that Caceres was a member. Counsel stressed the gang theme as it related to defendant’s state of mind during the incident, and argued that prosecution witnesses were lying because they belonged to the same gang as Caceres.

Given this extensive testimony and argument as to the reasons for his fear, defendant’s additional testimony to Caceres’ purported statements concerning other robberies and shootings would have been cumulative. More compelling is our belief that the jury resolved the state-of-mind issue on the occurrence testimony.

The eyewitnesses testified that defendant struck the victim two or three times, then pulled a gun as the victim reached for a cane. The victim ran, defendant fired two or three times, and the victim fell face first to the ground. Defendant walked up to the victim and fired two or three bullets into his back. The medical examiner corroborated this testimony, stating that the victim died from bullet wounds, four of which entered the back, and none of which entered frontally.

Defendant’s occurrence testimony, on the other hand, is implausible. Defendant stated that one month after threatening him, Caceres asked for his gun back. Defendant, not knowing if the gun was loaded, put it in the back of his pants and went downstairs. Then, without asking for the gun, Caceres slapped and threatened to kill defendant. And although Caceres had the better of the fight to this point, he disengaged and took Vega’s cane. As Caceres approached menacingly, defendant pulled out the gun (loaded or unloaded), pointed down, turned his face, closed his eyes, and fired.

We believe that the occurrence testimony established defendant’s intent beyond any doubt, regardless of the historical development of defendant’s mentum. We further believe that the jury must have resolved the issue on this basis. Accordingly, we find that the exclusion of defendant’s further testimony constituted harmless error.

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

Affirmed.

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


author: PRESIDING JUSTICE McGLOON

text:
    ANASTASIA PESEK, Plaintiff-Appellant, v. ANTHONY DISCEPOLO et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—2613
    Opinion filed February 4, 1985.
    James F. Stack, of Chicago, for appellant.
    Lanzillotti, Gribben & Marchuk, of Berwyn (Robert C. Marchuk, of counsel), for appellees.
   PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, Anastasia Pesek, filed a three-count complaint against Anthony Discepolo, his parents, Armino and Lydia Discepolo, and Morton Township District 201, doing business as Morton East High School. Counts II and III, directed against the parents and high school, respectively, were dismissed with prejudice by the trial court. Plaintiff appeals, contending counts II and III successfully stated causes of action against those defendants.

We affirm.

According to plaintiff’s amended complaint, on May 18, 1982, she was at her home when she was raped by Anthony Discepolo. He was 15 years old and a registered student at Morton East High School. The rape occurred on a school day at 11:10 a.m. Count I is directed at Anthony Discepolo and is still pending. Count II was directed against his parents, alleging they knew of Anthony’s truancy, they knew or should have known of Anthony’s association with juvenile delinquents, they knew or should have known that Anthony was engaged in criminal or quasi-criminal conduct prior to the rape, and they knew or should have known that Anthony was frequently and voluntarily under the influence of alcohol or drugs. Count II alleged that the parent’s lack of supervision of Anthony was negligent and proximately caused plaintiff’s injuries. Count III recited the same litany of Anthony’s conduct, imputed knowledge thereof to Morton East High School, and alleged the school’s lack of supervision proximately caused plaintiff’s injuries.

Plaintiff contends count II stated a cause of action against Armino and Lydia Discepolo.

The general rule in Illinois is that a parent “is not liable for the tort of his minor child merely from the relationship ***.’’ (While v. Seitz (1930), 342 Ill. 266, 269, 174 N.E.2d 371. See also Annot., 54 A.L.R.3d 974, 977 (1973).) In Cooper v. Meyer (1977), 50 Ill. App. 3d 69, 365 N.E.2d 201, we applied an exception to that general rule set forth in the Restatement (Second) of Torts sec. 316 (1965):

“A parent is under a duty to exercise reasonable care so as to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.”

In Cooper, plaintiff alleged defendant’s minor child threw a “brick bat” which struck plaintiff, that defendant knew of his child’s “propensities to attack persons,” and that defendant’s failure to supervise his child proximately resulted in plaintiff’s injuries. (50 Ill. App. 3d 69, 71.) We held plaintiff did not allege a cause of action under section 316 of the Restatement:

“In the present case, there is no pleading which indicated that the defendant had any knowledge that the plaintiff would visit. There is no assertion that the defendant had any prior knowledge of the possibility of a visit by the plaintiff. We also note that the defendant was not at home and thus, had no opportunity to directly control the conduct of the minor child at the time of the tort. Further, the pleadings do not state that the defendant had knowledge that there had been opportunity to so control the minor child.” 50 Ill. App. 3d 69, 72.

Similarly, in Parsons v. Smithey (1973), 109 Ariz. 49, 504 P.2d 1272, the Arizona Supreme Court upheld the trial court’s directed verdict for the parents of a minor who attacked three people with a knife. The court noted that although the parents had general knowledge of past acts of violence by their child, they could not reasonably foresee the particular type of violent acts committed by the minor. The court reasoned:

“Here, we find that all of the evidence offered by the plaintiffs, either admitted or excluded, was not sufficient to send the case to the jury on the issue of whether Mr. and Mrs. Smithey should have had knowledge of Michael’s propensity to commit the type of act complained of. Under no view of the evidence is it proper to conclude that Mr. and Mrs. Smithey should have reasonably foreseen that Michael had a disposition to perform such a violent act.” 109 Ariz. 49, 54, 504 P.2d 1272, 1277.

In the case at bar, plaintiff’s complaint alleges the parents’ knowledge of Anthony’s propensities toward truancy, associating with juvenile delinquents, committing criminal or quasi-criminal acts, and being intoxicated. There is absolutely no evidence that the parents had any knowledge of any previous acts committed by Anthony. Certainly there was no allegation that the parents had any knowledge of similar acts of violence committed by Anthony (see Parsons v. Smithey (1973), 109 Ariz. 49, 54, 504 P.2d 1272, 1277), nor that Anthony’s parents had the opportunity to control Anthony’s behavior. See Cooper v. Meyer (1977), 50 Ill. App. 3d 69, 72.

Plaintiff relies principally on Ellis v. D’Angelo (1953), 116 Cal. App. 2d 310, 253 P.2d 675. We find Ellis distinguishable from the case at bar.

In Ellis, plaintiff was injured when the defendant’s four-year-old child “pushed impelled and knocked [plaintiff] violently to the floor.” (116 Cal. App. 2d 310, 312, 253 P.2d 675, 676.) Plaintiff’s complaint specifically alleged the parents had knowledge that their minor child “habitually engaged in violently attacking and throwing himself forcibly and violently against other people, and violently shoving and knocking them.” (116 Cal. App. 2d 310, 317, 253. P.2d 675, 679.) Therefore, unlike the case at bar, the plaintiff in Ellis alleged the parents had knowledge of previous similar acts of violence committed by their minor child. Therefore, we conclude count II of plaintiff’s amended complaint does not state a cause of action against Armino and Lydia Discepolo.

Next, plaintiff contends count III stated a cause of action against Morton East High School. Plaintiff argues that because the school acts in loco parentis, it should be liable under the same theory as Anthony’s parents. (See Mitchell v. Wiltfong (1979), 4 Kan. App. 2d 231, 604 P.2d 79.) However, plaintiff’s allegations directed at the high school are identical to those directed at Anthony’s parents. Therefore, the reasoning from which we concluded the propriety of the dismissal of count II applies with equal force to the dismissal of count III. Even if we were to accept plaintiff’s theory that the school should be under the same legal duty to control Anthony’s behavior as Anthony’s parents, the instant complaint does not state a cause of action against Morton East High School.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County dismissing counts II and III of plaintiff’s amended complaint.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.