author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE JAMES GAINES, Defendant-Appellant.
    First District (1st Division)
    No. 80-1231
    Opinion filed March 8, 1982.

      Ralph Ruebner, of State Appellate Defender’s Office, of Chicago (Alan M. Freedman and Bruce H. Bornstein, both of Freedman & Bornstein, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and John A. Ward, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Willie Gaines was indicted on January 7, 1974, for the murder of Charles Polk. His first trial, in September 1977, ended in a mistrial because of a hung jury. After a second jury trial, defendant was convicted of murder and sentenced to 20-40 years imprisonment and fined $1,800. Defendant appeals, contending that (1) comments made by the prosecutor during closing argument constituted reversible error; (2) he was not proved guilty beyond a reasonable doubt; and (3) the court erred in ordering defendant to pay a fine of $1,800 to be taken from his bond money.

Michael Richardson testified that on October 15,1973, he went to his girlfriend Patricia Bell’s family’s apartment with defendant, whom he referred to as “Little June.” Richardson went into the bedroom to take a nap, while defendant went into the living room to have his hair braided by Bell. When Richardson awoke from his nap, he saw defendant standing in the front doorway firing a shotgun at Charles Polk. Richardson admitted that a statement which he had given police regarding an argument between defendant and the deceased, which Richardson had stated he had witnessed, was actually the result of information given him by other people.

Patricia Bell testified that on October 15, 1973, she resided with her mother Betty Hill and her sister Debra. On that date, besides her family, Michael Richardson, Henry Kimp, Charles Polk and Willie Gaines were at the apartment. She had been braiding defendant’s hair. When she finished, she went into the bedroom where Richardson was taking a nap. While in the bedroom, she heard the raised voice of Charles Polk. When she came out of the bedroom, defendant was leaving through the front door. Bell testified that as defendant left, he stated, “That’s all I was waiting for him to do.” Ten or twenty minutes later, she went into the kitchen where she heard a knock on the back door. Bell called her sister, who opened the door to find defendant holding a shotgun. Defendant then walked through the apartment and, not seeing Polk, went to the front door. At the front door defendant found Polk, who refused to enter the apartment because of an argument he had earlier that day had with Debra Bell. Polk was talking to Henry Kimp. Defendant then shot Polk. Bell also testified that she knew a Roger Fenison and said he was like a brother. Bell had known defendant for two years prior to the incident.

The testimony of Debra Bell Brown, Patricia Bell’s sister, was similar to that of her sister. Earlier in the day on October 15 she had had an argument with her boyfriend Polk. The deceased returned to the apartment a few hours after the argument and was invited in by Brown, but he refused to enter.

Henry Kimp testified that he was a friend of the deceased. During the day of the shooting, Kimp and Polk had been drinking in a vacant lot and Polk was “feeling good.” Later that day they went to the apartment, where they had a few drinks on the sunporch with Betty Hill, who was intoxicated at the time. Kimp saw defendant and Polk engage in a brief shoving match just before he dozed off. He was awakened later when Polk wanted to speak to him in the hall. Kimp went into the hall where he saw Polk being shot. Prior to the incident Kimp did not know Willie Gaines. Afterward, he did not speak with police until after he had spoken with the family.

Homicide Investigator John Dahlberg, of the Chicago Police Department, testified that on October 15, 1973, he went to Patricia Bell’s family home. He observed a pool of blood in the front hall and that Betty Hill had been drinking quite heavily.

Dr. Zalala stipulated that Charles Polk died of multiple gunshot wounds to the abdomen, chest and elbow. Blood samples revealed that at the time of his death Polk was intoxicated.

Vivian Gaines, defendant’s mother, testified that on October 15,1973, she saw her son at approximately 8:50 p.m. and at that time he did not have a gun.

Roger Fenison, a friend of the Bell sisters, testified that he had on numerous occasions seen a shotgun in the family’s apartment.

Defendant testified that on October 15,1973, he had been at the Bell apartment. When he arrived, Bell asked him to go out and get Michael Richardson to help her with Polk, who was intoxicated and causing trouble. When he returned with Richardson, Bell braided his hair, during which time he overheard the loud voices of Polk and Betty Hill. Betty, who was intoxicated, said she was going to shoot the first person that came to the door and, in fact, she was going to shoot through the door. At this point defendant left the apartment and went home to check on his brothers and sisters. He then went to the home of a Mrs. Smith and her son Ronald, who lived at 19th and Pulaski. He watched television there until 11 p.m. That night, while defendant was at the Smith home, a visitor came to the door and spoke to Ronald. He told Ronald that the police were looking for “Little June.” No one other than the Bell family knew defendant as “Little June.” Defendant left and went to visit a friend named Cindy. He stayed there until October 19, when he surrendered to police. Defendant testified that while he was imprisoned Ronald Smith and his mother moved from their home at 19th and Pulaski.

At the discovery stage, pursuant to a written discovery request filed by the State, defendant submitted the names of defendant’s alibi witnesses: Mrs. Smith and her son Ronald.

In closing argument the prosecutor stated that Mr. Smith was a “phantom” and that this was the reason neither he nor his mother could be found to testify. The State argued that if the Smiths did exist the defense would have initiated some sort of investigation as to their whereabouts.

We disagree with defendant’s contention that he was prejudiced by certain comments made by the prosecutor in closing argument which noted defendant’s failure to call alibi witnesses. During his opening statement, defense counsel referred to defendant’s expected testimony that he was at the home of a Mrs. Smith and her son Ronald at the time Polk was murdered. Defendant then testified that at the time Polk was shot he (defendant) was watching television with the Smiths at their home. During closing argument the prosecutor stated that Mr. Smith was a “phantom.” Defense counsel stated in reply that the Smiths existed because defendant’s mother testified that defendant told her he was going to the Smiths. In rebuttal argument the prosecutor responded:

“If these people [the Smiths] really existed and could have supported that alibi, ladies and gentlemen, don’t you think there would have been a check with schools, a check with welfare, a check with the arrest record, a check with past employment and a check of the neighbors, a check with the landlord?”

Generally, it is improper for the prosecution to comment on a defendant’s failure to present witnesses when such witnesses are as accessible to the State as they are to the defendant. However, when alibi witnesses are injected into a case by the defendant, they are deemed unavailable to the prosecution and comment on the failure of such witnesses to testify is proper. (People v. Jackson (1979), 79 Ill. App. 3d 660, 398 N.E.2d 906.) Defendant injected the Smiths into the case and then did not call them as witnesses or explain their absence. We find it was proper for the prosecutor to comment on the failure to call the Smiths because this is a factor a jury may properly consider. People v. Blakes (1976), 63 Ill. 2d 354, 348 N.E.2d 170.

We also disagree with defendant’s contention that he was not proved guilty beyond a reasonable doubt. The first reason advanced is that the State’s four witnesses who testified that they saw defendant shoot Polk were incredible because they were all “intimately involved with one another and with Betty Hill.” Concerning this argument we note that the bias of a witness is always pertinent on the question of the credibility of the witness. (People v. O’Dell (1980), 84 Ill. App. 3d 359, 405 N.E.2d 809.) It is, however, for the trier of fact (in the instant case, the jury) to determine the credibility of witnesses and the weight to be accorded their testimony. (People v. Mahon (1979), 77 Ill. App. 3d 413, 395 N.E.2d 950.) Furthermore, “[i]t is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses * 9 °.” People v. Novotny (1968), 41 Ill. 2d 401, 412, 244 N.E.2d 182.

Here, the jury heard the testimony of the four eyewitnesses concerning the incident. The jury was also informed as to the nature of the relationship each of these witnesses had with defendant. Furthermore, the jury heard defendant’s testimony concerning his version of the incident. We cannot find that the claimed bias of the witnesses is sufficient to raise a reasonable doubt of defendant’s guilt.

Defendant’s second reason in support of his reasonable doubt argument is that there are certain inconsistencies regarding Polk’s presence at, departure from and return to the apartment and the time sequence in which the events occurred. Defendant contends that an inconsistency exists in the testimony because the evidence revealed that, although deceased and Debra Bell Brown had had an argument earlier in the day, upon deceased’s initial arrival at the apartment he did not hesitate to enter the home and yet, when he returned to the apartment after leaving for some time, he refused to enter allegedly because he did not feel welcome due to his argument with Debra. Defendant argues that the most probable reason for Polk not to re-enter the apartment is that Polk feared Mrs. Hill. However, there was no testimony that Polk feared Mrs. Hill; therefore, there is no support in the record for this conclusion.

Defendant also argues that there were inconsistencies in the testimony as to the time defendant and Polk left and then returned to the apartment. The State’s witnesses testified that after defendant’s encounter with the deceased defendant left for 20-30 minutes before returning with the gun. Debra Bell Brown later testified that after defendant left, Polk left and did not return for a few hours. In view of the fact that four witnesses testified that they saw defendant shoot Polk, we do not find that this discrepancy in the testimony regarding the sequence of events is of such magnitude to create a reasonable doubt of defendant’s guilt.

Defendant’s final contention is that the trial court abused its discretion in fining defendant $1,800 to be paid out of defendant’s bail bond deposit. Defendant claims error in that the court did not consider the financial resources and future ability of defendant to pay the fine and instead imposed the fine in order to reimburse the county for the cost of providing defendant’s court-appointed counsel. When imposing the fine, the judge stated:

“The taxpayers of this county invested an enormous amount of money in trying — providing Mr. Gaines the fair trial which, I believe, he had including but not limited to the assistance of you.
That eighteen hundred dollars, in my judgment, is but a small contribution to the enormous expense that the taxpayers went through to put this man to trial in two different occasions.”

The State argues that the court did consider defendant’s financial resources and future ability to pay the fine when it considered defendant’s presentence investigation report and heard defendant’s testimony that he had earned his bond money while in jail and that while he was released on bond he had been employed in several different capacities.

The sentence imposed by a trial court must be affirmed unless there is a showing that the trial court abused its discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Section 5 — 9—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 9—1) provides that an offender may be sentenced to pay a fine which, for a felony, shall not exceed the greater of $10,000 or the amount specified in the offense. The fine may be imposed in addition to a sentence of imprisonment. This section further provides that in determining the amount and method of payment for a fine the court shall consider “the financial resources and future ability of the offender to pay the fine ° 0 Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 9—1(c)(1).

In the instant case, the sentencing judge specified his reasons for imposing the sentence of imprisonment and a fine. His comments indicated that the sentence was based on the circumstances surrounding the murder. When asked specifically about the fine, the judge stated that the fine was appropriate because defendant had been represented in two trials by court-appointed counsel and the payment of the fine was but a small contribution to the enormous expense the taxpayers had borne. Defendant relies on People v. Cook (1980), 81 Ill. 2d 176, 407 N.E.2d 56, which held section 110 — 7(g) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(g)) unconstitutional. That section provided that when a defendant who had been admitted to bail utilized the services of the public defender or other appointed counsel, the amount deposited could be used to reimburse the county for funding the legal services. The court found that the statute in Cook created an irrebuttable presumption that one posting bond had the financial ability to pay for counsel and did not require the sentencing judge to inquire into a defendant’s ability to pay.

We find that People v. Cook is distinguishable from the present case. Section 5 — 9—1(c), under which defendant was fined, creates no presumption that a defendant has the financial ability to pay and requires the court to inquire into a defendant’s actual ability to pay before imposing a fine. Although we believe that reimbursement of the county for the cost of court-appointed counsel is not an appropriate reason to impose a fine under section 5 — 9—1(c), we find that the record supports the imposition of a fine in the instant case. The record here shows that the judge heard evidence regarding the financial resources and future ability of defendant to pay the fine. Furthermore, “when a fine and imprisonment are imposed, they are imposed as one sentence, with the reasons specified supporting the entirety.” (People v. Bishop (1980), 81 Ill. App. 3d 521, 524, 401 N.E.2d 648.) We affirm the fine imposed.

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

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD FREEMAN, a/k/a Jerry Freeman, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1598
    Opinion filed March 9, 1982.
    Rehearing denied April 13, 1982.

      James J. Doherty, Public Defender, of Chicago (Mary T. Woodward, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Michele A. Grimaldi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant, Gerald Freeman, was charged in a six-count information with armed robbery, burglary and four counts of aggravated battery. (Ill. Rev. Stat. 1977, ch. 38, pars. 18 — 2, 19 — 1, 12 — 4.) Following a jury trial, defendant was found guilty of all charges and was sentenced to serve concurrent extended terms of 40 years for armed robbery, 14 years for burglary and 10 years for aggravated battery. Defendant appeals, contending that he was denied a fair trial when the trial court permitted the State to ask the complainant to identify defendant’s co-defendant, Ronald Ross, who had pleaded guilty after the jury had been impaneled but before trial commenced. For the reasons which follow, we affirm defendant’s convictions and the sentence imposed for armed robbery, vacate the sentences for burglary and aggravated battery and remand for resentencing in accordance with People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.

After the jury was selected but before trial began, defendant’s co-defendant, Ronald Ross, withdrew his plea of not guilty and entered a plea of guilty. This occurred outside the presence of the jury. The plea was accepted and the matter was continued for sentencing. Prior to opening statements the trial court admonished the jury:

“You will not, as I previously talked about, concern yourselves with the guilt or innocence of Mr. Ronald Ross. You will only concern yourselves with the guilt or innocence, by the standards which you heretofore have, as to Gerald Freeman, and Mr. Gerald Freeman alone.”

The morning after opening statements were given, defense counsel moved to dismiss the jury on the grounds of prejudice. Counsel argued that since the jury had been selected with the understanding that two defendants were to be tried they would assume, upon seeing only one in court, that the other had pleaded guilty. After argument, the court denied this motion noting that the jury had no knowledge that Ross had pleaded guilty.

The complainant, Jerry Crider, a 64-year-old shoe repairman, testified that on February 14, 1979, at approximately 4 p.m., he was attacked by Ronald Ross, whom he had known for 20 to 25 years, and defendant, whom he thought he had seen before but did not know personally. Crider identified defendant. Over defense objection the State was allowed to bring Ross into open court where, in the presence of the jury, Crider identified him as the second offender.

Crider testified that Ross pushed him from behind as Crider was returning to his store after buying some groceries. Crider was forced to the back of his store where he had his living quarters. Defendant threw Crider down on the kitchen floor, rifled through his pockets and took the $10 to $15 he had. Defendant then took his lit cigarette and burned Crider on his forehead, his hands, his stomach and his left foot near his ankle. Defendant kept demanding that Crider tell him where he hid the rest of his money. Each time Crider denied having any more money, defendant would burn him again with his cigarette.

Defendant removed Crider’s shoes, balled up some newspaper, lit it and applied the flaming newspaper to Crider’s left foot where he had already burned him with the cigarette. After the newspaper burned out, defendant relit it and held it two to three inches from Crider’s right foot, continually asking him where the money was hidden. Defendant threatened to kill Crider and “burn this place down.” Crider was in so much pain he told defendant, “Go ahead and kill me.” Crider tried to pull his foot back but was too afraid to resist.

Ten to twelve minutes after Crider first entered the store with his assailants he passed out from the pain of being burned. When he regained consciousness, he was alone. Because of his injuries Crider, who did not have a telephone, was unable to obtain any help for five days during which time he had nothing to eat or drink except a can of fruit cocktail. All the groceries he bought on February 14 had been taken from the apartment.

Ultimately, on Monday, February 19, Crider forced himself up on his damaged feet, struggled to the door of his store and attracted a neighbor’s attention. The neighbor called the police who interviewed Crider at the store and then transported him to the hospital. The officer who responded observed burns on Crider’s forehead, stomach and both hands and feet. Crider told the officer that “Leftee [Ross] and the Freeman boy” “who hangs in front of the 418 [a liquor store]” had robbed him.

While he was in the hospital Crider viewed three different photographic arrays and identified both Ross and defendant. Defendant was arrested on March 23,1979, after he unsuccessfully attempted to flee from the police on a traffic offense.

Crider was hospitalized for four weeks. He suffered first and second degree burns to his forehead, forearms and abdomen, and third degree burns to his feet. Surgical debridement (the removal of dead tissue and contaminated material) and skin grafts were necessary to treat Crider’s feet which, like his abdomen, were left permanently scarred. Following his discharge from the hospital, Crider was required to spend an additional two weeks recovering in a convalescent home. Crider was left permanently disabled. At trial he testified that his right foot was still sore and that he could not walk even one block without stopping to rest his feet. The defendant did not testify and offered no witnesses.

Defendant contends that he was denied a fair trial when the trial court allowed the State to ask the complainant to identify defendant’s co-defendant, Ronald Ross, who had pleaded guilty after the jury had been selected but before trial began. The People respond that the complainant’s in-court identification of Ross as the second offender was neither inadmissible nor prejudicial.

In support of his contention, defendant relies principally upon People v. Rezek (1954), 4 Ill. 2d 164, 122 N.E.2d 272. In Rezek defendant was indicted with three others for armed robbery but was tried separately. Three witnesses to the robbery were able to identify the others but did not recognize Rezek. The prosecutor had the others “paraded” before the jury for the witnesses to identify. A fourth witness, who was able to identify Rezek, also identified the other three co-defendants. The supreme court found this identification testimony irrelevant and prejudicial:

“We can think of no relevancy of this testimony on the question of the guilt of this defendant. The identifying of the three codefendants as participants in the robbery certainly had no weight in determining whether the defendant had likewise participated therein. It was well calculated to prejudice the defendant in the eyes of the jury.” 4 Ill. 2d 164, 168-69.

Contrary to defendant’s representations Rezek did not decide that all in-court identifications of co-defendants not on trial are irrelevant (see People v. Keagle (1955), 7 Ill. 2d 408, 415, 131 N.E.2d 74), nor did Rezek hold that such identification testimony is invariably prejudicial.

In People v. McNeil (1972), 52 Ill. 2d 409, 288 N.E.2d 464, the State was allowed to bring a co-defendant, who had pleaded guilty prior to defendant’s trial, into the courtroom and caused him to be identified as one of the robbers by one of the victims to the robbery. Commenting on its earlier opinion in Rezek, the court stated:

“It is true that the fact a witness has accurately identified A as a participant in an occurrence has no direct bearing upon the accuracy of his identification of B as a participant in the same occurrence. But in some circumstances that fact may tend to indicate that the witness is an accurate observer, and thus be admissible by way of corroboration. The question would then be whether the corroborative value is outweighed by the prejudicial effect.” 52 Ill. 2d 409, 417.

The court found that the proof of guilt was so strong that the admission of this evidence could not have affected the result. 52 111. 2d 409, 417.

In the present case we believe that the complainant’s in-court identification of Ross had little, if any, bearing on whether he was an accurate observer. We reach this conclusion because of the complainant’s testimony that he had known Ross “quite well” and had seen him “almost everyday” for “twenty or twenty-five years” since Ross was a child. In light of the witness’ familiarity with Ross, his ability to identify him in court had virtually no relevance to his ability to identify defendant, who he might have seen before the crime but did not know personally. We cannot agree with defendant, however, that Crider’s identification of Ross “would have falsely created the impression in the minds of the jury that if Crider so easily identified Ross then his identification of Freeman must have been just as credible and reliable.” It would have been obvious to the jury that Crider’s ability to identify Ross was based at least in part on factors which had no bearing on Crider’s ability to identify defendant. Defense counsel argued these matters to the jury.

An in-court identification of a co-defendant not on trial is not prejudicial per se. (McNeil; People v. Keagle (1955), 7 Ill. 2d 408,415, 131 N.E.2d 74.) In Rezek the in-court identification of defendant’s co-defendants was only one of two grounds on which defendant’s conviction was reversed. The court specifically commented that “if either of the * * * errors existed separately we would not be inclined to reverse the judgment.” (4 Ill. 2d 164, 170.) Here defendant alleges no other errors. Unlike Rezek, where three co-defendants were “paraded” before the jury to be identified by four witnesses, three of whom were unable to identify the defendant on trial, only one co-defendant was presented to the jury in the instant case and he was identified by a witness who had already identified the defendant.

Defendant, however, contends that the potential for prejudice was exacerbated in this case by the fact that the jury which convicted defendant was selected with the understanding that two defendants were to be tried. Once it appeared that only one defendant was to be tried, # the only conclusion the jury could have drawn was that Ross had pled guilty to the charges against him and left Freeman to go to trial alone.”

This argument is wholly speculative. The jury was never informed of Ross’ plea. As far as the jury knew, Ross might have elected to waive a jury trial and agreed to be tried by the court at a later date. Even if the jury assumed that Ross had pleaded guilty, we fail to perceive how this assumption necessarily would have prejudiced defendant. The jury may well have believed that Ross had pleaded guilty because he was in fact guilty and that defendant was insisting upon a trial because he was not. In light of the victim’s positive identification of defendant and the trial court’s admonishment to the jury before opening statements that they were to concern themselves only with the guilt or innocence of Gerald Freeman, not Ronald Ross, we find no prejudice in the procedure of which defendant complains.

Although not raised as an issue on appeal, we note that the trial court sentenced defendant to serve extended terms of imprisonment on each of his convictions. Under People v. Evans (1981), 87 Ill. 2d 77, 87,429 N.E.2d 520, an extended sentence may be imposed only for the most serious offense of which the offender is convicted. Defendant was convicted and sentenced to serve extended terms of 40 years for armed robbery, a Class X offense, 14 years for burglary, a Class 2 felony, and 10 years for burglary, a Class 2 felony, and 10 years for aggravated battery, a Class 3 felony. Under Evans the extended sentences for burglary and aggravated battery are illegal and must be vacated. This cause, therefore, must be remanded for resentencing on those convictions. This does not affect the legality of the extended sentence for armed robbery.

For the foregoing reasons the judgments of defendant’s convictions are affirmed, the sentences imposed thereon are affirmed in part and vacated in part and the cause is remanded to the trial court for resentencing consistent with the views expressed herein.

Convictions affirmed; sentences affirmed in part and vacated in part; cause remanded for resentencing.

DOWNING and HARTMAN, JJ., concur.

       The record does not reflect whether this admonishment had been given earlier.

       At the conference on instructions defense counsel declined the court’s invitation to submit an instruction that the jury was “only to consider evidence against Gerald Freeman.”


author: JUSTICE BERLIN

text:
    JOHN P. MITCHELL, JR., Plaintiff-Appellee and Cross-Appellant, v. MILDRED TATUM, Defendant-Appellant.—(ALLSTATE INSURANCE COMPANY, Garnishee-Defendant-Appellee.)
    First District (2nd Division)
    Nos. 80-1818, 81-357 cons.
    Opinion filed March 9, 1982.
    Rehearing denied April 20, 1982.
    O. Kenneth Thomas, Ltd., of Harvey (O. Kenneth Thomas, of counsel), for appellant.
    Orner, Wasserman & Moore, Ltd., of Chicago (Norton Wasserman and H. Elisabeth Huber, of counsel), for appellee Allstate Insurance Company.
    James E. Land, Ltd., of Calumet City (Edward J. Szewczyk, of counsel), for appellee John P. Mitchell, Jr.
   JUSTICE BERLIN

delivered the opinion of the court:

A $4500 default judgment was entered against defendant, Mildred Tatum (Tatum) for personal injuries and property damage stemming from an automobile collision with plaintiff, cross-appellant, John P. Mitchell, Jr. (Mitchell). Tatum appeals from the trial court’s denial of her motion to quash service of process. Mitchell appeals from the trial court’s denial of his garnishment of the proceeds of Tatum’s insurance policy. The consolidated appeals raise the following issues for our review: (1) whether Tatum rebutted the presumption of proper service of process by clear and convincing evidence; and (2) whether Tatum’s insurer was estopped from asserting its policy defenses against her judgment creditor.

For the reasons hereinafter stated we affirm the orders of the circuit court of Cook County.

Mitchell filed suit on.March 15,1979, seeking damages resulting from an automobile collision with Tatum. According to the sheriff’s return of service dated April 11,1979, personal service was made at 16130 Wolcott, Markham, Illinois, on a black female aged about 48. Tatum, a black female aged 50, did not appear at trial, and a default judgment was entered against her on May 18,1979. Tatum took no action in this matter until she was notified by the Illinois Secretary of State that her driver’s license was suspended due to the uncollected judgment against her. It was at this point, the first week in October 1979, that Tatum first notified her insurer, Allstate Insurance Company (Allstate), of the accident, the lawsuit, and the judgment.

On November 30, 1979, Allstate informed Tatum that her failure to notify the company before judgment was entered against her constituted a breach of the notice-of-suit condition in her policy. The company asserted that due to her breach, it was not liable under the policy for the judgment. Allstate also reserved its right to assert a defense of no coverage if either she or her judgment creditor made a claim under her policy. Allstate then retained its house counsel to represent Tatum and on January 29, 1980, moved to quash service of process. This motion was denied on April 3, 1980.

On April 22, 1980, Allstate wrote another letter to Tatum again reserving its rights. Additionally, Allstate disclosed the potential conflict of interest inherent in its attempt to quash service. Allstate explained that if it was determined that Tatum was properly served, that determination would be tantamount to a finding that she breached the notice condition in her policy and therefore relieved the company of its obligations under the policy. If service of process were quashed, however, the default judgment would be vacated, the suit would be retried and Allstate would be obligated to defend Tatum and satisfy any unfavorable judgment entered against her. Thus it was to the company’s advantage to have service upheld. Allstate then suggested that Tatum retain her own counsel to handle the matter. It appears from the record, however, that Tatum ignored Allstate’s advice.

On May 30, 1980, additional testimony was heard on the motion to quash service. Mrs. Shaw, Tatum’s daughter and a resident of Monroe, Louisiana, testified that Tatum was visiting her in Monroe on the date Tatum was allegedly served. Kevin Tatum, defendant’s 30-year-old son, testified that the sheriff actually served process on him at 16130 Wolcott and that he misplaced it and forgot to tell anyone about it. Sheriff Glasper, a civil process server, testified that he served the defendant on April 11. He identified her in court and asserted that he did not know her prior to serving her on that day. After hearing" this testimony, the court again denied the motion to quash.

On July 14,1980, Mitchell instituted garnishment proceedings against Allstate seeking the proceeds of Tatum’s automobile insurance policy. Allstate denied liability under the policy on the ground that Tatum’s breach of the notice-of-suit condition in her policy absolved the company of any liability under the policy. The trial court found for Allstate, and Mitchell appeals from that judgment.

I

In her appeal Tatum contends that the trial court erred in denying her motion to quash service because she proved by clear and convincing evidence that she was not served on April 11,1979. We cannot agree.

The law is clear that the sheriff’s return of service is prima facie proof of service and can be overcome only by clear and convincing evidence. This court is required to indulge every presumption in favor of the sheriff’s return. Whitworth v. Morgan (1977), 46 Ill. App. 3d 292, 360 N.E.2d 1198; Aetna Casualty & Surety Co. v. Sanders (1973), 15 Ill. App. 3d 573, 305 N.E.2d 25.

The evidence in this case is conflicting. Tatum’s children testified that she was in another State at the time of the purported service and therefore could not have been served. The sheriff, however, testified that he served Tatum at her home on April 11, 1979. He testified that he did not know defendant prior to April 11, yet he accurately described her on his service return. The trial court heard all of the evidence and determined that Tatum did not overcome the presumption of proper service. Given the conflicting testimony in this case the decision rested on the trial court’s evaluation of the credibility of the witnesses. Since it is his proper function to judge the credibility of witnesses, we will not substitute our judgment for that of the trial court. (Abron v. Public Pontiac, Inc. (1965), 64 Ill. App. 2d 73, 212 N.E.2d 326.) Accordingly, we find no error in the trial court’s denial of Tatum’s motion to quash service.

II

Mitchell, cross-appellant, contends that the potential conflict of interest inherent in Allstate’s representation of Tatum under a reservation of rights estopped Allstate from asserting a policy defense of no coverage against Tatum or her judgment creditor.

It is well established that unless an insured complies with the notice-of-suit condition in an automobile insurance policy, the insurer is not liable under the policy to its insured or to an insured’s judgment creditor. (Lynn v. Village of West City (1976), 36 Ill. App. 3d 561, 345 N.E.2d 172; Fisher v. Inter Insurance Exchange of Lake States Automobile Association (1965), 66 Ill. App. 2d 2, 214 N.E.2d 357; Heilig v. Continental Casualty Co. (1935), 280 Ill. App. 142.) Here it is undisputed that Tatum breached the notice condition in her policy. Mitchell argues, however, that because Allstate assumed Tatum’s defense where there was a potential conflict of interest, the company should be estopped from asserting its policy defense and pay the judgment. We disagree.

In the instant case Allstate made a timely and full disclosure to Tatum of its position and the nature of the potential conflict of interest. The company suggested that Tatum retain her own counsel to represent her. That Tatum chose not to do so does not estop Allstate from asserting a policy defense that was otherwise properly reserved. (Apex Mutual Insurance Co. v. Christner (1968), 99 Ill. App. 2d 153, 240 N.E.2d 742.) Moreover, Tatum acquiesced in the representation furnished by Allstate after a full and timely disclosure to her by the attorney of the potential conflict of interest. Under these circumstances Allstate’s ethical obligations, which may have been spawned by the purported conflict of interest here, were properly discharged by Allstate’s full and timely disclosure. Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 198, 355 N.E.2d 24; Apex Mutual Insurance Co. v. Christner.

Accordingly, the orders- of the circuit court of Cook County are affirmed.

Affirmed.

DOWNING and HARTMAN, JJ., concur.


author: PRESIDING JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT MARTINEZ, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2049
    Opinion filed March 9, 1982.

      Nicholas F. Maniscalco, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joel A. Stein, and Frank Castiglione, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Petitioner Robert Martinez appeals from the denial of his petition for a post-conviction hearing. In his post-conviction petition, Martinez raised one constitutional claim: that he was denied the effective assistance of counsel because of his attorneys’ conflicts of interest. Petitioner’s trial and appellate counsel had also represented a co-defendant who was separately tried and convicted for the same crimes. Further, one of petitioner’s trial attorneys had previously represented the State’s principal witness against petitioner.

Following a jury trial, petitioner was convicted of conspiracy, aggravated kidnapping and murder in connection with the death, on October 1, 1972, of Hillside patrolman Anthony Raymond. Petitioner’s trial attorneys were Sam Adam and James Cutrone. Silas Fletcher, also charged with the murder of Raymond, had already been convicted in a separate trial. Fletcher had been represented at trial by Adam and Cutrone. At the time of petitioner’s trial, Fletcher’s appeal was pending. Cutrone represented Fletcher on appeal.

The principal witness against petitioner was Vincent McCabe. On two prior occasions, McCabe, represented by Cutrone, had appeared before a grand jury and denied knowledge of the crimes. At petitioner’s trial, McCabe retracted his earlier denials and testified in detail concerning petitioner’s alleged admissions regarding Raymond’s kidnapping and murder. At the time of trial, McCabe was participating in the Federal Witness Protection Program. Petitioner was convicted and sentenced to 75-150 years’ imprisonment. On direct appeal, his conviction was affirmed. (People v. Martinez (1978), 62 Ill. App. 3d 7, 377 N.E.2d 1222.) Petitioner was represented on appeal by Sam Adam.

The State argues that petitioner’s claim of ineffective assistance of counsel must be held waived because petitioner failed to raise the point on direct appeal from his conviction. This argument overlooks the obvious: if petitioner’s representation at trial was ineffective, he could hardly rely on his appellate counsel (one of the trial attorneys) to argue that claim. In a similar situation, we recently held that an error not raised earlier was not waived for a post-conviction petition where the issue in the post-conviction proceeding was previous counsel’s incompetence for failing to make a timely assignment of error. See People v. Talley (1981), 97 Ill. App. 3d 439, 442, 422 N.E.2d 1084.

In Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333,100 S. Ct. 1708, the Supreme Court considered a post-conviction claim that joint representation of co-defendants created a conflict of interest and impaired the defendant’s representation. The court stated:

“In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” (446 U.S. 335, 348, 64 L. Ed. 2d 333, 346-47, 100 S. Ct. 1708, 1718.)

Petitioner made no objection at trial concerning his representation. It is therefore incumbent upon him to show that an “actual conflict of interest” impaired his attorneys’ efforts. In People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64, our supreme court held that the conflict shown must be actual; speculative or hypothetical conflicts are insufficient. 74 Ill. 2d 286, 301.

We find it helpful in this regard to review some of the situations that Illinois courts have found to create “actual” conflicts of interest. (1) In a joint trial, the same attorney cannot represent two co-defendants who have antagonistic defenses. (People v. Wilder (1977), 48 Ill. App. 3d 13, 15, 362 N.E.2d 436.) (2) In a joint trial, a defendant whose testimony is antagonistic to the interest of a co-defendant has a conflict of interest with that co-defendant. The same principle applies to separate trials if one defendant testifies at the trial of the other. (People v. Wilder (1977), 48 Ill. App. 3d 13, 15.) (3) In a joint trial, where one defendant’s out-of-court statement is introduced against the other defendant, there is an actual conflict of interest even though the declarant may deny making the statement. In this situation, the defense has been impaired because the attorney for both defendants cannot adequately impeach the defendant who made the statement. (People v. Cade (1981), 97 Ill. App. 3d 354, 357, 422 N.E.2d 1002.) (4) Where an attorney successfully argues for the exclusion of fingerprint evidence and the evidence tends to exculpate one defendant but incriminate a co-defendant, there is an actual conflict of interest in joint representation. People v. Echols (1978), 74 Ill. 2d 319, 325, 328, 385 N.E.2d 644.

The foregoing cases illustrate that an actual conflict of interest occurs when an attorney, without the knowledge and consent of his client, has divided loyalties and when his commitments to others measurably impair his ability to channel his full talents toward acquittal of his client. (See People v. Hope (1981), 96 Ill. App. 3d 180, 184, 420 N.E.2d 1171; see also Porter v. United States (5th Cir. 1962), 298 F.2d 461, 463, quoted with approval in People v. Stoval (1968), 40 Ill. 2d 109, 111-12, 239 N.E.2d 441.) Petitioner’s allegations of actual conflict of interest are reducible to three points: (1) his attorneys did not call Silas Fletcher to rebut McCabe’s testimony implicating petitioner; (2) because of the prior attorney-client relationship with McCabé, petitioner’s attorneys did not rebut McCabe’s testimony; (3) the attorneys did not call petitioner to testify in his own defense.

Although the defense called no witnesses at trial, petitioner has, in an affidavit prepared in support of his post-conviction petition, denied involvement in Raymond’s murder. Petitioner states that he had no connection with the killing or the preceding robbery of a restaurant but came to Silas Fletcher’s house as Fletcher was preparing to take Raymond’s body, then in a steel drum, to the Wisconsin farm where the body was eventually found. Silas Fletcher also prepared an affidavit in support of petitioner’s post-conviction petition, confirming petitioner’s account. Fletcher’s affidavit states that Martinez had no involvement in the robbery or murder; Martinez came to Fletcher’s home and, at Fletcher’s insistence, accompanied Fletcher (and the makeshift coffin) to the Wisconsin farm. Petitioner now contends that Fletcher, if called as a witness, would have testified to Martinez’ noninvolvement in the crime and thus rebutted McCabe’s testimony.

The claim that Fletcher’s testimony, if offered, would have vindicated petitioner is pure speculation. Fletcher’s appeal was pending at the time of petitioner’s trial. At his own trial, Fletcher denied involvement in the crime and said he was hunting in Wisconsin on the day of the murder. On appeal, Fletcher claimed, inter alia, that he was not proved guilty beyond a reasonable doubt. (See People v. Fletcher (1978), 59 Ill. App. 3d 310, 313, 375 N.E.2d 1333.) It is, to put it mildly, highly unlikely that Fletcher would have testified during the pendency of his appeal that he had personal knowledge that Martinez was not involved in the crime. Fletcher is currently in the penitentiary serving a 100-200 year term. His affidavit, exculpating a co-defendant at his own expense, is of doubtful value. Nevertheless, the truth of the affidavits is not the issue. The issue is whether the attorneys’ failure to call Fletcher demonstrates an actual conflict of interest. The courts of this State “have refused to find hostility between the interests of criminal co-defendants based on the mere possibility that one strategy available to defense counsel would have helped one defendant at the expense of another.” People v. Canales (1980), 86 Ill. App. 3d 738, 744, 408 N.E.2d 299; see People v. Echols (1978), 74 Ill. 2d 319, 327-28.

It is also speculative to claim that independent counsel would have rebutted McCabe’s testimony. First, we note that McCabe was no longer Cutrone’s client at the time of petitioner’s trial. The trial court, in denying petitioner’s post-conviction petition, recalled that McCabe was cross-examined at great length and quite thoroughly by both Adam and Cutrone. Most importantly, petitioner has made no showing that any evidence existed or was known to his attorneys that could have been offered to rebut McCabe’s testimony. Under the circumstances, the claim that independent counsel could have done more than petitioner’s trial attorneys is wholly conjectural.

Petitioner contends that despite his protests he was not called to testify in his own defense and that this decision was dictated by his attorneys’ loyalty to Fletcher and McCabe. As noted above, petitioner did not express his dissatisfaction to the trial court, nor has he shown any evidence of Cutrone’s continuing loyalty to McCabe. (Cf. People v. Hope (1981), 96 Ill. App. 3d 180, 185 (assertion that attorney might have held confidential information from a prior client is speculation).) Furthermore, the rule as stated in Canales and Echols again applies: the fact that defense counsel did not choose a strategy that might have helped petitioner at the expense of a co-defendant does not establish an actual conflict of interest. (See People v. Echols (1978), 74 Ill. 2d 319; People v. Canales (1980), 86 Ill. App. 3d 738, 743-44.) The State’s case against petitioner was based on circumstantial evidence and on the testimony of McCabe, an admitted perjurer. The decision to offer no defense was a reasonable tactical decision. This court may not speculate whether independent counsel would have made the same decision. Cf. People v. Gray (1980), 87 Ill. App. 3d 142, 152, 408 N.E.2d 1150, cert, denied (1981), 450 U.S. 1032, 68 L. Ed. 2d 228, 101 S. Ct. 1745 (joint attorney did not advise defendant to testify against her co-defendants; reviewing court would not speculate as to how attorney should have advised defendant).

Petitioner has not met the test set forth in Berland and Cuyler, he has advanced possible conflicts of interest but has shown no actual conflict. He has thus failed to establish a deprivation of his sixth amendment right to effective assistance of counsel. The trial court’s dismissal of the post-conviction petition was therefore correct and is affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE MORROW et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 80-2636, 80-2637 cons.
    Opinion filed March 9, 1982.
    Rehearing denied March 31, 1982.

      Philip Krasny, of Chicago, for appellant Willie Morrow.
    James J. Doherty, Public Defender, of Chicago (Judith A. Stewart, Assistant Public Defender, of counsel), for appellant Maurice Jones.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Ruth Stern Geis, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendants Willie Morrow and Maurice Jones were charged with rape, aggravated kidnapping, unlawful restraint and armed violence. Following a jury trial, both defendants were convicted of rape and acquitted of the other charges. Defendant Morrow was sentenced to 15 years in the Illinois Department of Corrections; defendant Jones received a 10-year sentence. Both defendants appeal. Defendant Morrow makes five assignments of error, contending that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court improperly admitted evidence of a witness’ prior consistent statement; (3) the prosecutor made an inflammatory and prejudicial remark in closing argument; (4) evidence seized in a warrantless search of defendant’s garage should have been suppressed; and (5) his warrantless arrest was illegal. Defendant Jones raises only one point on appeal. He contends that he was denied the effective assistance of counsel at trial.

Defendants called no witnesses at trial. The principal issue for the jury was whether the two complainants consented to the acts charged. No issue was raised as to the identity of the two defendants. The complainants were Jacqueline Plump and Juanita Bell, age 18 and 19 respectively. The two women testified that at about 11 p.m. on November 3, 1979, they went to the New Here’s Lounge at 79th and Racine in Chicago, where they met three friends. According to their testimony, the complainants each had one drink while at the lounge. The two women and their three friends left the lounge at about 3 a.m. and waited outside for a bus. At this time, the two defendants approached the group and began talking with the two women. Defendant Morrow introduced himself as “Eddie” and defendant Jones introduced himself as “Maurice.” The complainants told defendants their names. The conversation lasted approximately 15 minutes. During this 15-minute period, an eastbound 79th Street bus came by and the complainants’ three friends boarded it. When the complainants saw a westbound 79th Street bus approaching at a distance, they crossed Racine Avenue to get to the opposite corner where the bus would stop. While the women were crossing the street, defendants followed them and defendant Morrow pulled out a gun and directed the two women to get into a black car parked at the curb. Plump did not see the gun but testified that defendant Jones pushed her in the direction of the car. The women entered the vehicle. Bell sat in the back seat with defendant Jones and Plump sat in the front seat with defendant Morrow. Morrow drove the car for about 10 minutes and parked in an alley.

Once in the alley, defendant Morrow again displayed the pistol and demanded that both women disrobe. Defendant Jones, who was drinking from two bottles of liquor, advised the women that Morrow was “crazy” and would carry out his threat to kill them and put them in a garbage can if they didn’t comply. Plump then opened her blouse, removed her pants, and engaged in intercourse with defendant Morrow in the front seat. After this act, Morrow left the car and opened the overhead door of a nearby garage. He backed the car into the garage and closed the overhead door. When he returned to the car, Morrow again displayed the pistol and ordered the women to disrobe. He then engaged in a second act of intercourse with Plump. At the same time, defendant Jones had intercourse with Bell in the back seat. After these acts, defendant Jones ordered the women to switch places. The two women climbed over the seat and engaged in two more acts of intercourse, Bell with Morrow and Plump with Jones.

After these acts, when the two women asked to be let go, the defendants offered to drive them home. The complainants declined the offer and said they would walk home (a considerable distance), but they accepted defendants’ offer to drive them to a nearby bus stop. The complainants took a bus to Jacqueline Plump’s home and arrived at about 7 a.m. Mrs. Plump was up and waiting for Jacqueline to return. The complainants told her they had been raped. Mrs. Plump called the police. The women were taken to a hospital where a doctor reported the presence of sperm in the vaginas and noted the absence of vaginal lacerations. Mrs. Plump testified that the complainants were crying and disheveled when they arrived at her home, but their clothes were not torn. Jacqueline Plump testified that she wet her pants while walking home from the bus stop and she vomited after reporting the rape to her mother.

While the complainants were at the hospital, they were interviewed by Investigator Charles Grunhard. The women gave Grunhard descriptions of the garage, the car and the two men. The complainants then left the hospital with Grunhard and his partner, Thomas Bennett, in an unmarked police car. The officers drove the women to the New Here’s Lounge and began retracing the route taken by defendants’ car. Near the intersection of 93rd and Elizabeth, Juanita Bell recognized an alley. The police drove down the alley until Miss Bell recognized the garage where the defendants’ car had been parked. She recognized the garage because the service door (the small entry door on the side of the garage) was off the hinges. It was now about 11 a.m. on the morning of November 4, a Sunday.

The yard in which the garage was located had a fence at the rear lot line. Investigator Bennett went through the gate in the fence (the evidence does not establish whether the gate was open or closed) and into the yard. He then looked into the garage through the open service door. The service door was on the side of the garage, facing a sidewalk that led from the rear gate to a house near the front of the lot. Bennett saw a car matching the description given by the complainants: a large black two-door car with the driver’s window replaced by a plastic sheet and with no license plates but a “license applied for” sticker on the windshield. Bennett called to Grunhard, and the two police officers entered the garage. The officers opened the car’s door and found a baseball bat next to the driver’s seat and a .25-caliber bullet on the floor by the driver’s seat. Two empty liquor bottles were on the back seat. The officers also noted that the “license applied for” sticker bore the name “Willie Morrow.”

The officers returned to their police car, called for additional units, and drove around the block to the front of the lot. The address of the house on the lot was 9212 South Elizabeth. As the officers got out of the police car and approached the house, a boy (later identified as defendant Morrow’s 15-year-old brother, Mark) was coming down the front steps. Grunhard called out to the boy and the boy began to return to the house. The officers caught up with the boy on the front porch and there ensued a very brief and confusing conversation in which Bennett mentioned “Willie” and asked the boy about the car in the garage and whether anyone was home. The boy said, “My sister is here,” and went into the house, closing the door behind him. The officers, looking through a window, saw the boy run to the rear of the house. At the same time, a young woman (later identified as defendant Morrow’s sister, Vickie Morrow) came to the door. Without speaking to Vickie, the officers entered the house and ran to catch up with the boy, who was going upstairs. The officers followed the boy to an upstairs bedroom. In that room, one individual (later identified as defendant Morrow’s 16-year-old brother, Fred) was lying in bed watching television; the other individual, who matched the description given Grunhard by the two complainants, was asleep in his bed. The police woke the sleeping man, identified in court as defendant Morrow, and asked if he was “Willie” and if the car in the garage was his. Defendant Morrow answered “yes” to both questions and was arrested.

The police allowed Morrow to dress and then took him to the garage, where they advised him of his constitutional rights. Defendant Morrow at first denied being with women the night before and said he had been out drinking with a friend, Derrick Sullivan. Defendant Morrow was then taken to the police station, where he was advised that Sullivan did not back up his alibi. Morrow then admitted that he was out with two women and had intercourse with them. He also gave the police defendant Jones’ name.

I

Defendant Morrow contends that he was not proved guilty beyond a reasonable doubt. The State offered testimony from the two complainants, from Plump’s mother, from Investigator Grunhard and from Officer Brown, who responded to Mrs. Plump’s phone call reporting the rapes. Defendants called no witnesses and stipulated to the complainants’ identification testimony. Morrow and Jones both relied on the defense of consent. Defendants assert that the two women made no “prompt complaint” of the attack. In fact, the victims did announce that they had been raped, but they waited until they reached Plump’s home and did not seek assistance from the bus driver or passengers. Whether this delay in making a “prompt complaint” diminishes the probative value of the accusation is a question for the jury. There is no fixed time limit within which a prompt complaint must be made. (See People v. Secret (1978), 72 Ill. 2d 371, 377, 381 N.E.2d 285.) Defendants also stress the lack of physical evidence of force. The lack of physical evidence corroborating a claim of forcible rape is not fatal to the State’s case. The testimony of the complainant, if clear and convincing, is sufficient to support a conviction. (See People v. Secret (1978), 72 Ill. 2d 371, 376.) In the case at bar, the complainants testified unequivocally regarding the use of force. Their credibility was an issue for the trier of fact. The reviewing court will not substitute its judgment for that of the jury which heard the evidence and saw the demeanor of the witnesses. See People v. Sherman (1980), 87 Ill. App. 3d 937, 940, 407 N.E.2d 486.

Defendant Morrow also contends that the trial court erred in admitting evidence of a prior consistent statement of Juanita Bell. On direct examination, Bell related that defendant Jones had threatened to rob her, but defendant Morrow advised against it. When asked if Jones robbed either Plump or herself, Bell said, “No.” On cross-examination by defendant Morrow’s attorney, Bell gave a different answer:

“Q. Now, after the acts of sexual intercourse had been completed and there was a discussion regarding a robbery, nobody robbed anybody, did they? Nobody took anything, did they?

A. Well, I did get one of my necklaces taken away from me.” Defendant Morrow’s attorney then attempted to impeach Bell.

“Q. Well, did you tell the first officer that was on the scene, Officer Brown, who came to your [sic] house, did you tell him that jewelry or a necklace had been taken?
A. No, but I—
Q. Ma’am, did you at any time, when you testified before his Honor Judge Pompey [the preliminary hearing judge], on November 20, 1979, three weeks after this case, did you even tell Judge
Pompey that a necklace was taken from you?
0 « «
A. No.”

On redirect examination, the prosecutor asked Bell if she told Investigator Grunhard that a necklace had been taken. She replied, “Yes.” On direct examination, Grunhard was allowed, over defense objection, to confirm Bell’s statement.

Defendant Morrow argues that evidence of Bell’s prior consistent statement (that a necklace had in fact been taken) was incompetent. Defendant cites Eizerman v. Behn (1956), 9 Ill. App. 2d 263, 132 N.E.2d 788, for the proposition that evidence of out-of-court statements corroborative of a witness’ in-court testimony is inadmissible. (9 Ill. App. 2d 263, 283-84.) The State acknowledges the general rule set forth in Eizerman but argues that there is an exception to that rule: evidence of out-of-court statements consistent with a witness’ testimony is admissible to corroborate the witness’ testimony when the witness is charged with fabricating his testimony, as long as the prior statement was made before the motive to falsify arose. (See Stolp v. Blair (1873), 68 Ill. 541, 544.) The State argues that the defense has impliedly charged the complainants with falsifying their testimony as to coercion.

Assuming, arguendo, that the defense sought to prove that Bell’s testimony was a recent fabrication, the exception advanced by the State is nevertheless inapplicable. The exception applies only to an out-of-court statement made before the witness acquired a motive to falsify. A statement made after the witness had a motive to falsify is not within the exception. (See People v. Rosario (1979), 74 Ill. App. 3d 607, 612, 393 N.E.2d 543.) If, in the case at bar, the women consented to the acts complained of (as the defense argues), then the motive to falsify arose as soon as Bell and Plump told Mrs. Plump they had been raped. If Bell was indeed lying at that point, she thereafter had a motive to embellish her story with descriptions of robbery and other coercive events. Bell’s conversation with Grunhard occurred after the alleged motive to falsify arose. Evidence of her statement to Grunhard was therefore inadmissible.

Two references to Bell’s prior statement about the alleged robbery were admitted into evidence. Grunhard related to conversation on direct examination and Bell told of it on redirect examination. We find that Bell’s testimony was admissible, although not for the reason advanced by the State. The defense did not impeach Bell with a prior inconsistent statement. Rather, the defense attempted to impeach her with her prior silence: the fact that she did not tell Officer Brown or Judge Pompey about the alleged robbery. When a witness is impeached by a prior inconsistent statement, the witness is entitled to an opportunity to explain or qualify the statement and show why it was made. (People v. Gammons (1970), 130 Ill. App. 2d 120, 123, 264 N.E.2d 866.) It follows that if a witness is impeached by prior silence, she should be given an opportunity to explain her silence. One such explanation could be testimony to the effect that, “I said nothing to Brown but I did report it to Grunhard.” On this basis, Bell’s statement on redirect was admissible.

Grunhard’s testimony regarding the conversation remains inadmissible. Nevertheless, we cannot see how defendant Morrow was prejudiced by the testimony. Defendants were not charged with robbery. In impeaching Bell, the defense sought to point out inconsistency in her testimony and thereby impugn the reliability of that testimony. That inconsistency was demonstrated to the jury in a glaring and direct manner by the discrepancy between Bell’s testimony on direct and cross-examination. The fact that Grunhard agreed with one of the accounts (Bell’s testimony on cross-examination) does not relieve the inconsistency. It does not appear that this testimony was a major factor in defendant Morrow’s conviction. We hold that the error was not reversible. See People v. Rosario (1979), 74 Ill. App. 3d 607, 613.

Defendant Morrow also contends that the trial court erred in refusing to declare a mistrial following an allegedly inflammatory and prejudicial remark in the State’s closing argument. Defendant Jones’ attorney had argued in closing, “If you are going to rape someone, you don’t take them to where you live.” In rebuttal, the prosecutor responded, “Everybody who has been in criminal law long enough knows that it is not at all unusual or uncommon to take a victim to the home turf. Look at the Gacy case for that matter.” Both defense attorneys immediately objected. The trial court stated, “Gentlemen, pursue some different argument. We are not dealing with the Gacy matter here, Counsel. * * * Continue your argument on a different cant.”

The mere mention of the name of an infamous mass murderer does not necessarily amount to irreparable prejudice. Here, the prosecutor did not compare defendants with Gacy and mentioned the case only to make a point regarding criminal behavior. The trial court quickly admonished the prosecutor and indicated in the presence of the jury that the Gacy matter was irrelevant. (Cf. People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 325, 379 N.E.2d 847 (prosecutor’s reference to Richard Speck was not reversible error where defendant was not compared with Speck and where defense objection was sustained and jury instructed to disregard the remark).) We find that the remark in question was inappropriate but not reversible error.

Defendant Morrow contends that the warrantless search of the garage and his car was unconstitutional and that the bullet seized in that search should not have been admitted into evidence. We find that two distinct searches occurred, and we will treat them separately. As noted above, the garage in question was at the rear of the lot and faced the alley. The overhead door was closed but the service door was either open or missing. In order to look through the open doorway the police had to enter the fenced back yard. We believe that the first search occurred when Investigator Bennett entered the yard and looked into the garage. “A search implies a prying into hidden places for that which is concealed, and it is not a search to observe that which is open to view.” (People v. Marvin (1934), 358 Ill. 426, 428, 193 N.E. 202.) The interior of the garage was not open to view from any public place. Bennett had to enter the fenced yard to see defendant Morrow’s car. The fact that a trespass was involved, however, does not of itself make the officers’ actions unreasonable (see City of Decatur v. Kushmer (1969), 43 Ill. 2d 334, 338-39, 253 N.E.2d 425), nor does the fact that the curtilage was breached create a per se violation of the fourth amendment. (See People v. Lashmett (1979), 71 Ill. App. 3d 429, 436, 389 N.E.2d 888, cert, denied (1980), 444 U.S. 1081, 62 L. Ed. 2d 765, 100 S. Ct. 1034, citing United States v. Fluker (9th Cir. 1976), 543 F.2d 709, 716, and Wattenburg v. United States (9th Cir. 1968), 388 F.2d 853, 857.) The appropriate test is whether the defendant had a reasonable expectation of privacy in the contents of the garage. See Katz v. United States (1967), 389 U.S. 347, 351-52, 19 L. Ed. 2d 576, 581-82, 88 S. Ct. 507, 511; see also Wattenburg v. United States (9th Cir. 1968), 388 F.2d 853, 857; People v. Pakula (1980), 89 Ill. App. 3d 789, 793, 411 N.E.2d 1385.

The circumstances of the instant case compel us to focus on the “reasonable” element of the “reasonable expectation of privacy.” The enforceability of an individual’s expectation of privacy has always been tempered by compelling public necessity. (See Michigan v. Tyler (1978), 436 U.S. 499, 509, 56 L. Ed. 2d 486, 498, 98 S. Ct. 1942, 1949-50 (listing exigent circumstances justifying a warrantless entry).) While it is true that the case at bar does not demonstrate the sort of exigency presented by hot pursuit (see Warden v. Hayden (1967), 387 U.S. 294, 298-99, 18 L. Ed. 2d 782, 787, 87 S. Ct. 1642, 1646), or a burning building (see Michigan v. Tyler (1978), 436 U.S. 499, 509, 56 L. Ed. 2d 486, 498, 98 S. Ct. 1942, 1949-50), we nevertheless believe that the overall situation must be taken into account. The police here, although not in hot pursuit, were certainly engaged in a “warm” pursuit. Plump and Bell, released by their abductors only a few hours earlier, had led the officers to what the victims believed was the scene of the crime. If the two women were correct, the officers had an important new lead to follow. If the women were proved wrong in their identification of the garage, the police needed to know that fact as soon as possible in order to continue their investigation without unnecessary delay. Under the circumstances, the most reasonable course of action was for one of the officers to venture about 20 feet into the yard and look through the open door.

If an intrusion into an individual’s zone of privacy is justified by exigency, the “moderate” exigency of the instant case justified only the most petty intrusion. The entry into the yard through an unlocked (and possibly unclosed) gate was of such a character. We must stress the triviality of the first search: the service door was already open (a condition visible from the alley), the officers touched nothing (except possibly the gate), there was no intrusion on a dwelling and the search lasted only a few seconds. We cannot find that defendant Morrow’s expectation of privacy could reasonably bar such a search.

We note that the concept of balancing an individual’s rights against the exigencies of the situation is not novel. People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, and the appellate court cases following it have elucidated the factors that establish exigency and excuse the requirement of a warrant for the arrest of a suspect in his home. These “exigency factors” need only be satisfied on balance. (People v. Thompson (1981), 93 Ill. App. 3d 995, 1005, 418 N.E.2d 112.) Implicit in this schema is the premise that great necessity may justify a tumultuous warrantless entry, and “moderate exigency” may justify only a limited or peaceable intrusion. (Compare People v. Simon (1981), 101 Ill. App. 3d 89, 427 N.E.2d 843 (suspects were armed and dangerous; warrantless entry with a battering ram was reasonable under the circumstances), with People v. Davis (1981), 97 Ill. App. 3d 299, 422 N.E.2d 989 (no evidence that suspects were armed; peaceable warrantless residential arrest was justified).) We hold that the limited intrusion of the first search was justifiable and defendant Morrow’s constitutional rights were not violated by that search.

The same cannot be said for the second search. Immediately after viewing Morrow’s car in the garage, Investigator Bennett called to Investigator Grunhard and the two officers searched the car, discovering a bullet on the floor of the car and seeing the name “Willie Morrow” on a “license-applied-for” sticker. Neither exigency nor any other exception to the warrant requirement justifies this search. The “automobile exception” to the warrant requirement does not apply when a car is neither on the highway nor movable. (See People v. Rinaldo (1980), 80 Ill. App. 3d 433, 436, 399 N.E.2d 1027.) The fact that the car was garaged confirms the owner’s expectation of privacy with respect to its contents even though, as we have found above, the owner lacked a reasonable expectation of privacy with respect to the presence of the car in the garage, since the car was visible through an open door. The trial court therefore erred in refusing to suppress evidence of the bullet.

Defendant Morrow also argues that his warrantless arrest was illegal. When the police went from the garage to the front of the house, they had probable cause to arrest defendant Morrow. From the complainants, the police knew “Morrow’s description and the fact that he might be armed. From the first search, the police had reason to believe that the suspect was in the house. From the second search, which we have found illegal, the police knew Morrow’s name.

We noted above that People v. Abney and its progeny have set forth the factors that justify a warrantless residential arrest. The opinion in People v. Davis (1981), 93 Ill. App. 3d 217, 221, 416 N.E.2d 1197, contains a concise list of these factors:

“(1) whether a grave offense is involved, particularly one that is a crime of violence; (2) the suspect is reasonably believed to be armed; (3) there exists not merely the minimum of probable cause that is required when a warrant has been issued but beyond that a clear showing of probable cause; (4) strong reason exists to believe the suspect is in the premises being entered; (5) there is a likelihood that the suspect will escape if not swiftly apprehended; (6) whether the entry is forceable or peaceful; and (7) the time of entry, day or night.”

Reviewing the facts of the instant case, we find that the exigency test has been met. Acting on information learned moments earlier, the police were on the trail of a rapist believed to be armed. As the officers approached the house, Mark Morrow, who recognized them as policemen, turned and ran back into the house. During the brief exchange on the porch, the officers referred to the car in the garage, so they could reasonably have inferred that the boy was running back into the home to warn the owner of the car. We believe that these facts gave rise to a strong inference of probable cause, and we find that such probable cause existed without resort to information learned in the second search. The police did not need to see the bullet in order to believe that the suspect was armed, and the police did not need to know the name “Willie Morrow” in order to arrest defendant Morrow, who matched the description given by the two women. We conclude that defendant Morrow’s arrest was legal, and the trial court did not err in refusing to suppress evidence of his post-arrest statements and post-arrest identification.

We have found the evidence more than sufficient to support a finding of guilt beyond a reasonable doubt. The identification of the defendants was not in issue. Defendant Morrow admitted in his post-arrest statement to having intercourse with two women. The complainants were graphic and consistent in their testimony regarding coercion. Their testimony was buttressed by evidence of a prompt complaint. Although we have found that the trial court erred in admitting evidence of the bullet found in the car, this error does not require reversal. An error may be found harmless beyond a reasonable doubt if the error is inconsequential, or if the error is harmless when balanced against the strength of the State’s evidence. (People v. Glover-El (1981), 102 Ill. App. 3d 535, 541.) The bullet was not inconsequential but, given the totality of the State’s evidence, we conclude that its admission was harmless error. Defendant Morrow’s conviction is therefore affirmed.

II

Defendant Jones makes only one claim on appeal. He contends that his privately retained trial counsel was incompetent, and he cites four instances of alleged incompetence: (1) the attorney moved to sever Jones’ and Morrow’s trials but never argued or pursued the motion; (2) the attorney did not move to suppress defendant Jones’ post-arrest statement (an alibi account); (3) the attorney did not ask for a limiting admonition when evidence of defendant Morrow’s attempted escape from custody was introduced; (4) the attorney did not object to alleged improper remarks in the State’s closing argument.

Defendant Jones’ attorney’s failure to pursue the motion to sever cannot amount to incompetence if the motion would have been unavailing, since there is no incompetence in failing to do a futile act. (See People v. Dudley (1970), 46 Ill. 2d 305, 310, 263 N.E.2d 1.) The motion to sever was a futile act. The general rule regarding severance is set out in People v. Wilson (1963), 29 Ill. 2d 82, 193 N.E.2d 449, cert, denied (1964), 377 U.S. 955, 12 L. Ed. 2d 499, 84 S. Ct. 1634. Persons indicted jointly should be tried together; the granting of a motion for severance is within the discretion of the trial court and the primary issue on such a motion is whether the defenses are so antagonistic that a fair trial can be assured only by a severance. (29 Ill. 2d 82, 91.) In the instant case, the defendants offered identical defenses: consent. Defendant Jones asserts that the evidence was strong as against Morrow but weak as against Jones. This is not so. Although Morrow carried the gun and made the original threat, Jones was more than a bystander. If the acts complained of were procured by force, both defendants benefited from the coercion. There is no basis in the evidence for finding that the women were forced into sex with Morrow but consented to the same acts with Jones. Since the motion to sever was without a basis, the failure to argue the motion was not incompetence.

Defendant Jones argues that his trial attorney should have moved to suppress his post-arrest statement. The statement, testified to by Investígator Grunhard, was a claim of alibi made when Jones was arrested. Defendant Jones has not clearly indicated what grounds existed for suppression of the statement. He has not contended that his arrest was illegal. Defendant Jones apparently believes that his co-defendant Morrow’s arrest was illegal and police gained knowledge of Jones only through Morrow’s allegedly inadmissible post-arrest statement. Rakas v. Illinois (1978), 439 U.S. 128, 133-34, 58 L. Ed. 2d 387, 394, 99 S. Ct. 421, 425, teaches that fourth amendment rights are personal and may not be asserted by one whose rights have not have been violated. This concept has sometimes been conceived of as an issue of “standing,” but the court in Rakas indicates that the problem is better viewed as a question of whether the movant’s constitutional rights have been infringed. (439 U.S. 128,139, 58 L. Ed. 2d 387, 398, 99 S. Ct. 421, 428.) Here, there has been no showing of a fourth amendment violation as to Jones. A motion to suppress would have been futile, and there was no incompetence in failing to so move.

When Grunhard testified concerning defendant Morrow’s attempted escape from custody, defendant Jones’ attorney did not ask for an in-trial admonition limiting the “flight” evidence to defendant Morrow. Grunhard did not mention defendant Jones in connection with the episode. We see no basis for assuming that the jury would infer Jones’ guilt from Morrow’s flight. Jones’ attorney’s failure to ask for a limiting instruction could well have been based on a tactical decision to refrain from drawing attention to the flight. Matters going to judgment and tactics are insufficient to show incompetence of counsel. (People v. Newell (1971), 48 Ill. 2d 382, 387, 268 N.E.2d 17.) We also note that Grunhard’s account was brief and undetailed and the State did not refer to the matter in closing argument.

The prosecutor twice referred in closing argument to the “uncontradicted” evidence and said, after listing the State’s witnesses, “Those were the only people that testified in this trial.” Defendant Jones argues that these remarks were impermissible references to the defendants’ failure to testify. Under the rule set forth in People v. Hopkins (1972), 52 Ill. 2d 1, 6, 284 N.E.2d 283, we find that these comments were permissible as accurate summation of the evidence. Defendant Jones supports his claim by citing People v. Wollenberg (1967), 37 Ill. 2d 480, 488, 229 N.E.2d 490, and People v. Escobar (1979), 77 Ill. App. 3d 169, 178, 395 N.E.2d 1028. Those cases are distinguishable. In the case at bar, unlike Wollenberg and Escobar, no defense witnesses testified, so the State’s evidence was uncontradicted. Defendant Jones notes other remarks to which his attorney did not object. It is not necessary to deal with each remark; viewed singly or collectively, the comments are not prejudicial. We note further that in one such instance, defendant Morrow’s attorney objected, so no purpose would have been served by an objection from Jones’ attorney. In sum, we find that defendant Jones has made no colorable showing of his trial attorney’s incompetence under any of the prevailing standards. Since this is the only point advanced on appeal, his conviction is affirmed.

Affirmed.

DOWNING and HARTMAN, JJ., concur.