author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHIRLEY METOXEN, Defendant-Appellant.
    First District (4th Division)
    No. 80—3236
    Opinion filed November 3, 1983.
    Rehearing denied December 7, 1984.

      Steven Clark and Richard F. Faust, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Thomas J. Finn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Shirley Metoxen, appeals her convictions for murder, home invasion and burglary (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a), 12 — 11(a)(2), 19 — 1(a)). After a jury trial, she was sentenced to a term of 38 years for murder, and concurrent terms of 10 years for home invasion and seven years for burglary. Defendant appeals and raises the following issues for review: (1) whether the trial court committed reversible error when it failed to suppress an inculpatory statement she made during a custodial interrogation and (2) whether the trial court abused its discretion in sentencing her to 38 years in the penitentiary.

We affirm.

On February 10, 1980, Clarence McShane was killed. Defendant Metoxen and Peter Denning were charged with his murder.

On November 13, 1980, a hearing was held on defendant’s motion to suppress statement. Jasper Romano, a Chicago policeman, testified that on February 10, 1980, at 11:25 p.m., he was at 4735 North Malden in Chicago, Illinois. He arrested defendant Metoxen and advised her of her Miranda rights. She responded, “We don’t do that in there.” She appeared to have been drinking.

Other officers took defendant to the police station. Romano saw defendant again around midnight and re-advised her of her rights. She said, “I know my rights,” and swore at Romano and other police personnel. According to Romano, defendant never said she did not want to talk without a lawyer, she never requested a lawyer, and no one told her that she had been implicated in the homicide of Clarence McShane, that her confession would result in leniency, or that police would intercede on her behalf. Nick Stasibopoulos, a Chicago policeman, corroborated Romano’s testimony.

Samuel Greiner, a Chicago policeman and homicide investigator, talked with defendant at 1 a.m. on February 11, 1980, after advising her of her Miranda rights. Defendant said she understood her rights. She was alert and not under the influence of drugs or alcohol. Investigator Hart McQuinn was also present. Between 3 and 4 a.m., an attorney, whose name Greiner did not know, spoke with Denning and then with Metoxen. Later the attorney told Greiner that he would represent Denning but not Metoxen. Hart McQuinn corroborated Greiner’s testimony.

At 3:30 p.m. on February 11, 1980, Greiner was present when Assistant State’s Attorney Elaine Geer had a conversation with defendant. Geer first advised defendant of her rights, which she said she understood. Defendant appeared to be alert and not under the influence of alcohol or drugs.

According to Greiner, during the 1 a.m. and 3:30 p.m. conversations, defendant never said she wanted a lawyer or wanted to remain silent. She was not told that she had been implicated in the homicide of McShane, that confession would result in leniency, or that the police would intercede on her behalf.

Elaine Geer, an assistant State’s Attorney, corroborated Greiner’s account of her afternoon meeting with defendant.

Thomas Keane, a Chicago policeman, investigated the McShane homicide. At 7:30 p.m. on February 11, 1980, he had a conversation with defendant after advising her of her Miranda rights, which she said she understood. Keane was present during another conversation with defendant at 9:30 p.m. Also present were police officer Kenneth Spink and Assistant State’s Attorney Schulgasser. Again, defendant was advised of her Miranda rights, which she said she understood. During both conversations, defendant made no complaints. She did not appear to be under the influence of drugs or alcohol. She did not ask for a lawyer or say that she had previously asked for a lawyer. She did not say she wished to remain silent or say she had previously asked to remain silent. Nothing was said to induce defendant to confess. Keane’s testimony was corroborated by Kenneth Spink.

Henry Schulgasser, an assistant State’s Attorney, corroborated Keane’s account of the 9:30 p.m. conversation with defendant. During that conversation, Schulgasser told defendant that he knew an attorney had been to see her. He asked her whether that attorney was representing her. She responded that he was not, that she did not know where he was from, and that she did not need an attorney.

Schulgasser, Spink, Keane and a court reporter were present during a conversation with defendant at 10:15 p.m. on February 11, 1980. When advised of her rights, defendant said she understood. In response to the question, “Have you requested a lawyer at any time?” defendant said, “Before I did, but they would not give me one.” After the court reporter typed the statement, defendant read, initialed and signed it.

After the State rested, the defense called Thomas Prendergast as its first witness. Prendergast, an attorney, testified that he was informed about the McShane homicide on the morning of February 11, 1980. He arrived at the police station at Belmont and Western at 2:30 or 3 in the afternoon. He spoke to Denning and Metoxen, told them not to answer any questions and to ask for an attorney if questioned, and informed the police that he had so advised the suspects. Prendergast also told the police that he was going to represent Denning and possibly Metoxen. He discussed fees with Denning’s family but not Metoxen because she had no money.

On cross-examination, Prendergast said that Metoxen asked, “Will you represent me?” He said, “Yes, but there may be a conflict. If there is, of course, I won’t be able to represent both of you.” Prendergast admitted that he never made any court appearances on behalf of either “client” because Denning’s family was unable to pay. Prendergast also stated that he briefly talked with Assistant State’s Attorney Geer about potential charges against his clients.

Defendant, Shirley Metoxen, testified that on February 10, 1980, at 11:30 p.m., she was arrested, advised of her Miranda rights and taken to the Foster Avenue police station where she was again advised of her rights. Then she was taken to the Belmont Avenue police station. Officers Greiner and McQuin spoke to her several times but they were not always together. They did not always advise of her of Miranda rights before speaking with her.

On the afternoon of February 11, 1980, Assistant State’s Attorney Geer advised defendant of her Miranda rights and then spoke with her. Geer told defendant that the blood of the victim was found on her (defendant’s) clothes. Metoxen said she wanted a lawyer. Geer responded that defendant would get one when she went to court the next day.

Metoxen said she had two conversations with attorney Prendergast and considered him her lawyer. About 30 minutes after talking with Prendergast, defendant talked to Officer Spink. She told him that she wanted a lawyer and wanted to remain silent. Spink told her that Denning had made a written statement inculpating her and that if she confessed, the judge would be lenient. If she cooperated, the police would intercede for her before the judge.

Defendant had two conversations with Assistant State’s Attorney Schulgasser. In her first conversation she did not ask for a lawyer because she had been put off and told she would get one the next day. In a second conversation, defendant stated that she had asked for a lawyer before. She also said that she did not then wish to have an attorney present. Defendant denied that she told Schulgasser she did not want an attorney.

On February 11, 1980, defendant was in the interview room all day and was handcuffed. She was given food.

Elaine Geer, an assistant State’s Attorney, was called on rebuttal. She testified that she never told defendant that the victim’s blood was found on her clothing. Defendant never said she wanted a lawyer, wanted to speak to a lawyer, or had asked anyone else for a lawyer.

At the close of the hearing, the trial court denied defendant’s motion to suppress statement, finding that no promises were made to defendant and that defendant did not wish an attorney to be present when she gave her written statement “freely and voluntarily.”

At trial, Assistant State’s Attorney Henry Schulgasser was the first prosecution witness. He laid the foundation for the introduction into evidence of defendant’s written statement.

After Miranda warnings, defendant said that on the evening of February 10, 1980, she lived in an apartment at 4735 North Malden in Chicago. Defendant and her friend, Peter Denning, decided to rob McShane, who lived in the same building and had been robbed before. Denning kicked in McShane’s door when he refused to let them in. Both defendant and Denning fought McShane and told him to give them his money, but no money was found. Defendant choked McShane. As she and Denning were leaving the apartment, they encountered the police. At the conclusion of her statement, defendant said that she had eaten and that no one threatened or coerced her into making a statement.

Eddie Noah testified that on February 10, 1980, he lived in an apartment at 4735 North Malden next to McShane’s apartment. At 8 p.m., he fell asleep. He woke up a few hours later when he heard someone prying at a door. Then he heard the door break in and McShane yelling. Noah went to the manager and asked her to call the police. They came within five minutes.

Nick Stasibopoulos, a Chicago policeman, was working with his partner, Jasper Romano, on the evening of February 10, 1980, when he received a radio message directing him to the Malden address. They arrived within 45 seconds. Stasibopoulos talked with the manager and then proceeded to McShane’s apartment. As he was about to enter, two people were leaving — Metoxen and Denning. Both had blood on their clothes. While Romano watched the suspects, Officer Stasibopoulos entered the apartment and saw a man lying on the floor. The door was broken in and the apartment ransacked. The suspects were handcuffed and given Miranda warnings. Defendant was taken to the Foster Avenue police station. Officer Romano corroborated the testimony of Stasibopoulos.

Marianne Caparusso, a microanalyst for the Chicago police department, testified that bloodstains on the clothing of Denning and defendant matched the victim’s blood type.

Metra Kalelkar, a forensic pathologist for the Cook County Medical Examiner, autopsied the victim on February 11, 1980. The cause of death was manual strangulation.

The State rested and, after offering certain stipulations, the defense rested. The jury found defendant guilty of murder, home invasion and burglary. The trial court sentenced her to 38 years for murder and to concurrent terms of 10 years for home invasion and seven years for burglary.

The first issue raised on appeal by defendant is whether the trial court committed reversible error when it failed to suppress an inculpatory statement she made during a custodial interrogation. Defendant claims that attorney Prendergast became her lawyer during his afternoon visit to the police station on February 11, 1980. Prendergast advised her to remain silent and not to answer questions in the absence of counsel. Defendant contends that her requests to have counsel present were ignored. She concludes that since she did not initiate any conversations subsequent to invoking her right to counsel, any resultant statement should have been suppressed.

At a hearing to suppress a confession, it is the trial court’s responsibility to determine the credibility of the witnesses and the competency of the confession, and the trial court’s decision will not be reversed unless it is contrary to the manifest weight of the evidence. (People v. Lewis (1979), 75 Ill. App. 3d 259, 280, 393 N.E.2d 1098, 1114.) In the case at bar, there is ample testimony which, if believed, supports the trial court’s determination. Police officers Romano, Stasibopoulos, Greiner and MeQuinn and Assistant State’s Attorney Geer all testified that defendant did not invoke any of her Miranda rights. No evidence established that defendant ever invoked those rights except for defendant’s own testimony at the suppression hearing and during the taking of her written statement in the presence of Officers Keane and Spink and Assistant State’s Attorney Schulgasser. The latter three witnesses testified that defendant did not previously invoke her Miranda rights.

The testimony of defendant and Prendergast suggesting that the latter had been retained as her counsel was contradicted by the testimony of Schulgasser who stated that defendant said Prendergast was not her attorney and she did not need one. Accordingly, we hold that the trial court properly denied defendant’s motion to suppress her confession.

The next issue raised by defendant is whether the trial court abused its discretion in sentencing her to 38 years for murder. Defendant argues that her young age (23 years old at the time of the crime), lack of criminal record, and intoxicated condition at the time of the crime indicate that the sentence she received for murder was excessive and an abuse of the trial court’s discretion.

Imposition of a sentence is a matter of judicial discretion and absent an abuse of discretion, the sentence of the trial court may not be altered upon review. (People v. Grady (1982), 107 Ill. App. 3d 970, 977, 438 N.E.2d 608, 614.) The trial court’s decision with regard to sentencing is entitled to great weight because the trial judge had an opportunity to observe and consider the defendant’s credibility, demeanor, mentality and a host of other factors. People v. Daugherty (1982), 104 Ill. App. 3d 89, 91-92, 432 N.E.2d 391, 393.

Before pronouncing sentence, the trial court stated that he had considered all the factors in mitigation and aggravation argued by defense counsel and the State. The 38-year sentence for murder was within the range of 20 to 40 years provided by statute. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1).) In our opinion, the trial court did not abuse its discretion in sentencing defendant to 38 years for murder.

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

Affirmed.

ROMITI, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEON WASHINGTON, Defendant-Appellant.
    First District (5th Division)
    No. 81—3097
    Opinion filed January 20, 1984.

      James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence J. Stasica, and Mary Alice McKenzie, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After a jury trial, defendant was convicted of the June 6, 1981, murder of James Riordan and sentenced to 35 years in the Illinois Department of Corrections. Defendant raises several issues on appeal, including the terms of the conviction itself and the length of his sentence, the impact of pretrial publicity on his ability to receive a fair trial and the propriety of a previously substituted trial judge disposing of defendant’s motion to substitute for cause. He also asserts several instances of the trial court's alleged abuse of discretion in conducting the trial, and of prosecutorial misconduct. We affirm.

The State presented the following testimony at trial:

Doris Radcliffe, a personal friend of the decedent, testified that she met Riordan at approximately 8:45 the night of June 6, 1981, and the two proceeded to the Marina City Restaurant. The couple met Alice and Marty O’Brien in the bar area of the restaurant and all four ordered drinks. At that time, defendant approached them and standing between Radcliffe and Marty O’Brien, stated that he would go away if O’Brien would buy him a drink. Alice O’Brien then admonished her husband not to dare buy defendant a drink, and told defendant to leave them alone. Defendant responded, saying, “I don’t know why she doesn’t like me,” then stepped between the O’Brien’s and pulled out a gun. Radcliffe stepped back a few feet and observed Riordan and Marty O’Brien grab defendant’s arm and move him back by the juke box at the south entrance to the bar, with Alice O’Brien following. At that point, Riordan let go of defendant and told the O’Briens to return to their seats. Radcliffe then observed defendant enter the cloakroom and emerge a minute or two later holding a gun. Riordan approached defendant, put his hand on defendant’s shoulder, and the two started walking north into the hallway. Radcliffe was six to eight feet behind the men when Riordan stopped. After a few more steps, defendant stopped and turned around. Riordan continued towards defendant, who was now facing him. Both men stopped near a reflecting pool, at which point Radcliffe saw the flash of a gun and heard four shots. Riordan fell into the pool and Radcliffe ran back into the bar area, crying and screaming for help. On cross-examination, Radcliffe stated that she did not hear Riordan tell defendant that he was a police officer or see him show defendant his badge.

Alice O’Brien testified that she and her husband arrived at the Marina City Bar at 8:45 on the night in question, where they found the south entrance to the bar blocked by defendant and a baby stroller. Defendant was loud, asking the bartendress, “What’s the name of this fucking bar and how do I get a drink?” O’Brien shouted across the bar at defendant to shut up. Shortly thereafter, the decedent entered the bar with Radcliffe and the two couples ordered drinks. Defendant approached Marty O’Brien stating, “If you buy me a drink, I’ll leave you people alone.” O’Brien told her husband not to dare buy defendant a drink and defendant then told O’Brien, “I don’t like you.” O’Brien heard a click and turned toward defendant, who was holding a gun to her head and pulling the trigger. O’Brien heard two more clicks, after which her husband and Riordan grabbed defendant and walked him over by the cigarette machine. O’Brien got up from her seat and hit defendant in the shoulder with her purse. Riordan told the O’Briens to return to their seats, then went out into the corridor with defendant. O’Brien heard a shot, then several more shots, after which Radcliffe reentered the bar and stated that Riordan had been shot. On cross-examination, O’Brien stated that no one took the gun from defendant, although he had held it to her head inside the bar. O’Brien’s husband, Marty, corroborated his wife’s testimony.

Psyche Williams was working as bartendress at Marina City that evening. She observed defendant and his friends enter the bar at about 7 p.m. Defendant ordered a drink, and she observed him singing and dancing around the bar, holding a baby. Defendant and his friends ordered a second round of drinks which defendant paid for but did not drink. According to Williams, the O’Briens arrived at around 8 p.m. and defendant’s friends left. Defendant approached some customers and asked them to buy him a drink. He then asked Williams to buy him a drink and she told him that he was cut off and must leave. Defendant asked Williams, “Do you know what I could do to you?” Williams stated that she was not scared of defendant and did not call the police. Although she did not think defendant was drunk, she told him to leave because he was bothering her other customers. The remainder of Williams’ testimony corroborated that of the O’Briens.

Several other witnesses gave corroborating testimony, including Michael Conte, who observed the men in the hallway, and heard Riordan tell defendant to give him the gun. According to Conte, Riordan grabbed defendant’s wrist and defendant brought up the gun and fired three to five times.

Michael Schramm was in the vestibule of the east tower of Marina City when he heard gun shots. He observed defendant walking toward him, holding a gun. When defendant was about 15 feet away, Schramm told him to drop the gun. Defendant told him, “Don’t worry man, I’m cool.” Defendant then dropped the gun at Schramm’s direction, and Schramm kicked it away. Defendant told him, “I used to be a cop” and then said, “I’m sorry, I’m sorry. He was just there.”

Officer Barnes, who recovered defendant’s gun that evening, testified that it contained three live rounds.

Defendant then testified. On June 6, 1981, he left his home for downtown, intending to do some work at the office. He carried with him a canvas bag containing the .380 semi-automatic pistol which he always carried with him for protection. Before going up to his office, defendant went into an adjacent bar where he met his friends, Catherine Doyle, James Jeske, Jeske’s wife and baby. The parties stayed until the bar closed at between 6:30 p.m. and 7 p.m., consuming several beers as well as hard liquor. They then proceeded to the Marina City restaurant and ordered more drinks at the bar. Defendant observed the O’Briens approach the bar and Alice O’Brien’s annoyance at the Jeske baby’s stroller which was blocking the entrance. Defendant’s friends eventually left and defendant went into the washroom, returning to find that his drink was gone. Defendant stated that Williams then told him that she had poured out his drink because he was drunk and would not serve him another. Defendant testified that he then offered to buy someone at the bar a drink. He then asked him, “What the hell is the name of this place you can’t even get a drink in?” Alice O’Brien then yelled across at him to shut up. He later asked Williams for another drink which she refused him, telling him to get out. He then asked Marty O’Brien to buy him a drink, at which point Alice O’Brien started yelling and hit defendant with her purse. After exchanging some words, defendant testified that he walked into the cloakroom, attempting to leave the bar. He came out and headed for an “exit” sign. Both the bartendress and Alice O’Brien were still yelling, and “making a big fuss.” Defendant stated that as he walked away he was grabbed from behind by Riordan, who had him by the throat and had his left arm pinned down. Riordan told defendant he was “taking [him] the hell out of here.” Defendant said to leave him alone and that he was leaving, but Riordan continued to push him, at which point defendant pulled his pistol out from the canvas bag he was carrying and flipped the safety off. Defendant testified that he feared for his safety. He did not attempt to fist-fight Riordan because he had broken bones in his hand. Instead, he tried to raise up the gun to fire a “warning shot.” When Riordan did not let go, defendant fired a burst of three rounds. He heard a splash as Riordan fell away, and saw other people heading toward him. He then obeyed Schramm’s directions to drop the gun and stand against the wall until the police arrived and took him in custody. Defendant stated that he did not know if he was drunk that night, but that he was “pretty high.”

Defendant was arraigned on June 12, 1981, at which time he moved to substitute out two judges pursuant to section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(a)) on the basis of alleged prejudice. The motion was allowed, and the cause transferred to Judge Mahon. During a subsequent hearing during which Judge Mahon denied defendant’s motion to appoint an investigator, the judge remarked, “It is the bare bones of what I read in the newspapers. There appears to be nothing to be investigated.” Defendant then moved to substitute Judge Mahon under section 114 — 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(c)), citing the judge’s remark as the reason that he would not receive a fair trial. The cause was transferred to the chief judge for reassignment and the motion for substitution was subsequently heard and denied by Judge Bailey, one of the two judges previously substituted out by defendant. Defendant now argues that Judge Bailey’s ruling was of no legal force and effect because he was barred by (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(a)) from proceeding in the cause. He concludes that all proceedings subsequent to Judge Bailey’s ruling, including his trial and conviction, are therefore void. We disagree.

Section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(a)) provides that within 10 days after a cause involving one defendant has been placed on the trial call of a judge, defendant may, upon written motion, substitute that judge on the basis of prejudice. In cases of Class X felonies, two judges may be substituted under this section. In addition, subsection (c) of that paragraph provides for the substitution of judges for cause upon written motion supported by affidavit, and states that, “[u]pon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion; ***” (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(c)). Thus, the actions of the chief judge were clearly in compliance with the statute where defendant’s motion named only Judge Mahon and the motion was assigned to Judge Bailey. Defendant would argue that the plain language of the statute does not apply where, as here, Judge Bailey, although not named in the motion, had been previously substituted out under another section. Case law indicates, however, that a judge who has previously been substituted from a case may perform formal or ministerial functions concerning the case as long as the action has little or no direct relation to the merits. (People v. Lewis (1981), 88 Ill. 2d 129, 160, 430 N.E.2d 1346; People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 292 N.E.2d 387.) Further, we have reviewed the record of defendant’s hearing before Judge Bailey and find that it was fairly conducted, with all of the proper factors considered, and that defendant’s motion was properly denied.

A defendant’s right to substitute judges for cause is not absolute, but requires substantiation to ensure that his claim of prejudice is not frivolously made. (See People v. Vance (1979), 76 Ill. 2d 171, 390 N.E.2d 867; People v. Myles (1980), 83 Ill. App. 3d 843, 852, 404 N.E.2d 385, appeal allowed (1980), 81 Ill. 2d 597.) A defendant moving for substitution under this section has the burden of showing prejudice on the part of the judge which disqualifies him from sitting as the judge in his case. (People v. Dunigan (1981), 96 Ill. App. 3d 799, 811, 421 N.E.2d 1319, appeal denied (1981), 85 Ill. 2d 569; People v. Winchell (1977), 45 Ill. App. 3d 752, 756, 359 N.E.2d 487, appeal denied (1977), 65 Ill. 2d 584.) As stated in Winchell, “ ‘Prejudice is a condition of the mind that imports the formation of a fixed anticipatory judgment as distinguished from opinions which yield to evidence.’ ” (45 Ill. App. 3d 752, 756; see also People v. Robinson (1974), 18 Ill. App. 3d 804, 310 N.E.2d 652, appeal denied (1974), 56 Ill. 2d 590.) Given the whole context of Judge Mahon’s remark during defendant’s motion for a court-appointed investigator, we find that the remark did not, in and of itself, signify that the judge had formed an opinion on the merits of defendant’s case. Rather, Judge Mahon simply ruled that there was no basis in law or fact for him to appoint an investigator to help defense counsel prepare his case where defense counsel had a full list of witnesses and the facts of the case were clear to both sides.

Defendant next argues that this court must reduce his conviction to voluntary manslaughter where the evidence was overwhelming that he believed that his use of deadly force was necessary to prevent great bodily harm to himself. It is well settled that where the evidence is conflicting, whether a homicide is murder or manslaughter or whether it is justified as self-defense is a question for the jury to decide under proper instructions (People v. Davis (1966), 35 Ill. 2d 55, 61, 219 N.E.2d 468), and that this court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of defendant’s guilt. (People v. Owens (1976), 65 Ill. 2d 83, 90, 357 N.E.2d 465, cert. denied (1977), 430 U.S. 955, 51 L. Ed. 2d 805, 97 S. Ct. 1600; People v. Sanchez (1981), 95 Ill. App. 3d 1006, 1010, 420 N.E.2d 80, appeal denied (1981), 85 Ill. 2d 572.) It is also clear that in order to justify a conviction of murder it is not necessary to show that the accused deliberately formed an intent to kill; it is sufficient to show that defendant voluntarily and wilfully committed an act, the direct and natural tendency of which was to destroy another’s life. (People v. Davis (1966), 35 Ill. 2d 55, 61, 219 N.E.2d 468; People v. Marrow (1949), 403 Ill. 69, 85 N.E.2d 34.) The intent is implied from the circumstances and character of the act. (People v. Winters (1963), 29 Ill. 2d 74, 193 N.E.2d 809.) Further, the trier of fact need not accept as true the defendant’s testimony concerning his claim of self-defense, but rather, in weighing such evidence it must consider the probability or improbability of the testimony, the circumstances surrounding the killing, and the testimony of all the witnesses. People v. Perry (1980), 91 Ill. App. 3d 988, 993, 415 N.E.2d 523, appeal denied (1981), 82 Ill. 2d 587; People v. Holtz (1974), 19 Ill. App. 3d 781, 313 N.E.2d 234, appeal denied (1974), 56 Ill. 2d 589.

In the instant case, all of the witnesses, with the exception of defendant, testified that defendant was not threatened, pushed or provoked in any way. It was defendant, not the victim, who was brandishing a gun during the incident. Under the circumstances, and given defendant’s background as a former police officer, the jury rejected defendant’s claim that he acted under the belief, whether reasonable or unreasonable, that the use of deadly force was necessary to protect his own life. We believe that defendant’s conviction of murder is well supported by the record before us.

Defendant next argues that the trial court abused its discretion by denying him a continuance to allow the impact of prejudicial publicity to abate before trial commenced. Defendant was arraigned on June 12, 1981. On October 26, 1981, defense counsel renewed a request for continuance, which was denied. At that time, the court stated its belief that there had not been publicity which would affect the trial.

Whether a motion for a continuance should be granted because of publicity concerning the case resides within the sound discretion of the trial court, and its judgment will not be disturbed absent an abuse of discretion. (People v. Kurtz (1967), 37 Ill. 2d 103, 108, 224 N.E.2d 817; People v. Brinn (1965), 32 Ill. 2d 232, 204 N.E.2d 724, cert. denied (1965), 382 U.S. 827, 15 L. Ed. 2d 72, 86 S. Ct. 62.) In cases of pretrial publicity, the examination of prospective jurors on voir dire has been recognized as the most valuable means of ascertaining partiality or indifference among persons summoned as jurors. (People v. Torres (1973), 54 Ill. 2d 384, 388, 297 N.E.2d 142; People v. Kurtz (1967), 37 Ill. 2d 103, 108.) In determining whether a defendant’s right to an impartial jury has been violated, a court of review must therefore examine the record of voir dire to ascertain whether the jury was adequately questioned as to their exposure to pretrial publicity. Additional considerations are the nature of the publicity and its duration, as well as the utilization of peremptory challenges. (People v. Madison (1974), 56 Ill. 2d 476, 309 N.E.2d 11.) Lastly, the procedural methods employed by the trial court to insure that the jury was not prejudiced by the publicity are important to this court’s determination.

In the instant case, the trial court questioned each of the prospective jurors thoroughly on voir dire as to their actual recollection of the pretrial publicity, their ability to remain impartial and to render a verdict based solely on the evidence. The court excused three jurors for cause when they candidly admitted that they had already formed an opinion about the case. In Irvin v. Dowd (1961), 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639, the Supreme Court of the United States recognized that “[t]o hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” 366 U.S. 717, 723, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639, 1642-43.

Further, our review of the newspaper articles contained in the record reveals that the majority of the publicity appeared within the first several days following the incident and that the accounts of the development of the case were primarily factual in nature.

Lastly, the trial court properly admonished the jury not to read any newspaper accounts of the trial or listen to any radio or television accounts of the case, and asked that in the event that any juror was inadvertently exposed to any media coverage during the course of the trial, that he or she convey that fact to the court in order that he could question them further as to its possible impact. Given all of these factors, we cannot say that the trial court abused its discretion in allowing defendant’s trial to proceed almost five months after his arraignment, or that in so doing the court deprived defendant of his right to an impartial jury.

We also reject defendant’s argument that the trial court abused its discretion in refusing to excuse two jurors for cause. Frances Berner stated on voir dire that she was a member of the Harwood Heights police committee. Defendant argues that because village trustees and police are exempt from jury duty under section 4 of “An Act concerning jurors, and to repeal certain acts therein named” (111. Rev. Stat. 1981, ch. 78, par. 4), Berner’s role as a member of the committee rendered her a “hybrid” of these two categories, requiring that she be excused. The facts belie this contention. Berner submitted on voir dire to a thorough examination of her function on the police committee, which, she stated, dealt only with finances and appointments. According to Berner, the committee neither discussed crimes nor investigations, and she clearly did not perform the functions of a village trustee or a police officer.

Walter May was challenged based on his statement that he had a tendency to high blood pressure under stressful conditions. Upon further questioning, however, he stated that he had not had an attack for two years and was not presently on medication. He further stated that he had not formed an opinion about defendant’s guilt or innocence, and that his condition would not affect his ability to remain fair and impartial. People v. Kurth (1966), 34 Ill. 2d 387, 216 N.E.2d 154, cited by defendant is inapposite. In that case, the juror in question had already been selected when it was disclosed that she had severe emotional problems and feared confinement in the jury room. The court there refused to disclose the juror’s name and refused counsel an opportunity to question her in order to determine whether her emotional instability would affect her ability to decide the case. In the instant situation, both jurors were thoroughly questioned by the judge as to their mental state, and were also available for questioning by counsel. Significantly, defendant chose not to exercise peremptory challenges in either case. We cannot say that the presence of these two jurors operated to deprive defendant of a fair trial.

Defendant next claims reversible error where the trial court “told the jury that capital punishment was not a possibility in the instant case.” The record indicates that during voir dire, two jurors stated they would have moral difficulties imposing the death penalty. Rosemary Vidacich stated that she would not sign a guilty verdict if capital punishment were involved. The court informed her that it was not, and went on to question her further as to her ability to decide the case based on the evidence. Vidacich was subsequently excused by the defense. David Johnson also appeared to have a question concerning the death penalty. In its efforts to persuade Johnson to express any possible concerns he might have, the court asked him if he was “worried about the death penalty,” to which Johnson replied affirmatively. The court then informed Johnson that the death penalty would not apply, and proceeded to question him thoroughly with regard to Johnson’s ability to give both sides a fair trial. In both instances, it is clear that the trial court was merely clarifying the situation for the jurors and not arguing the effect of a guilty verdict in terms of the possible punishment to be imposed, which would be clearly prohibited conduct. We find no prejudice to defendant where, as here, the court clearly fulfilled its duty to insure that the jury was composed of individuals who would base their verdict solely on the evidence.

Nor do we find that the court abused its discretion in prohibiting defense counsel from cross-examining Psyche Williams, an eyewitness, as to bias. Williams was bartendress at Marina City on the night in question. During his cross-examination of Williams, defense counsel attempted to inquire whether Williams had had any conversations with her employer regarding possible law suits relating to the incident, to which she responded that “they had nothing to say to me about it.” The State’s objection to the line of questioning was then sustained. Defendant now argues that because Williams’ testimony contradicted his own intoxication evidence, he was unjustly precluded from showing that the witness may have been motivated to lie by fear of a Dramshop action against her employer and fear of personal liability for having served defendant two rounds of drinks. Initially, we note that at the time of the objection, defense counsel failed to make an offer of proof as to the competency, relevancy or materiality of this line of questioning, and the issue can therefore properly be waived. Nevertheless, we have considered all of the testimony and find that any possible showing of bias on the part of this witness was remote and speculative, and it was therefore properly within the trial court’s discretion to sustain the State’s objection. See People v. Ware (1981), 96 Ill. App. 3d 923, 927, 422 N.E.2d 148, appeal denied (1981), 85 Ill. 2d 573; People v. Nowak (1979), 76 Ill. App. 3d 472, 395 N.E.2d 28.

Defendant next raises several instances of alleged prosecutorial misconduct, including counsel’s reference during the cross-examination of Catherine Doyle to the presence of James Jeske, another of defendant’s companions, in the courtroom. Having reviewed the record, we find no prejudice to defendant. While Doyle testified that she observed defendant drinking for several hours before the shooting, she admitted on cross-examination that defendant was not drunk. Further, defendant cannot now complain of counsel’s comment where defendant himself interjected Jeske’s name into the proceedings to corroborate his theory of intoxication. People v. Plum (1976), 44 Ill. App. 3d 922, 925, 358 N.E.2d 1235, appeal denied (1977), 65 Ill. 2d 583; People v. Pullum (1973), 10 Ill. App. 3d 745, 295 N.E.2d 315.

Defendant also alleges that his fifth amendment rights were violated where the prosecutor elicited on cross-examination that he did not make any statement about self-defense to Michael Schramm after the shooting, that the prosecutor committed reversible error by emphasizing to the jury that defendant had committed the offense of unlawful use of a weapon, an offense not charged in the indictment, and that several statements made during closing argument deprived him of his constitutional right to a fair trial. We note that defendant neither objected to these alleged errors at the time of trial nor raised them specifically in his post-trial motion, and they may therefore be waived for the purposes of review. Nevertheless, we have examined each of defendant’s contentions within the context of the record before us, and we believe that they have been adequately refuted in the State’s brief.

Finally, defendant contends that the trial court committed reversible error in refusing to instruct the jury on the affirmative defense of intoxication, and in sentencing him to a term in excess of the minimum sentence. We find that the trial court’s ruling was proper as the record is devoid of credible evidence that defendant was intoxicated on the night in question and, in light of the foregoing, that the court did not abuse its discretion in sentencing defendant to a term of 35 years. People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882; People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.

Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that defendant be assessed $50 as costs for the State’s defending this appeal and incorporate it as part of the judgment.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICK McDOWELL, Defendant-Appellant.
    First District (4th Division)
    No. 82—1284
    Opinion filed January 19, 1984.
    Rehearing denied February 29, 1984.
    James J. Doherty, Public Defender, of Chicago (Patricia J. Handlin and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Rhonda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Nick McDowell was convicted after a jury trial in the circuit court of Cook County of attempted rape, two counts of deviate sexual assault, attempted armed robbery, and unlawful restraint, and he was sentenced to 12 years imprisonment for attempted rape, deviate sexual assault and attempted armed robbery, the sentences to be served concurrently. He appeals, contending (a) the State wrongfully withheld blood samples which were the only evidence that could have exculpated him, (b) the identification made by the complainant was not clear and convincing, and, (c) the trial court improperly allowed the State to present prejudicial hearsay testimony to the jury.

The complainant testified she was in her car at a parking lot near the University of Illinois-Chicago campus on April 15, 1980, when a man approached the driver’s side. After she refused to roll down the window, the man pointed a gun at her and walked around the front of the car to the passenger’s side. He entered the front seat after the complainant opened the door. She observed the man was wearing a black wool cap with a visor, long black twill coat, beige pants and a light colored shirt. He was about six feet tall.

The man asked for money and searched the complainant’s coat and book bag. She offered to cash a student grant check. The man ordered her to drive to an empty lot nearby. There, the man ripped the complainant’s sweater and told her to get in the back seat and take her clothes off. The man ripped her sweater again as she hesitated. He then climbed into the back seat and attempted to have intercourse with her. The man rolled her over and had anal intercourse with her. When he was through, the man pulled her by her hair and forced her mouth onto his penis. The complainant noticed that the man’s penis was bleeding.

After dressing, the man told complainant to drive to a currency exchange on Taylor Street. Accompanying her inside, the man threatened her if she sought help. The complainant endorsed the student check and also wrote the word “help” under her signature. The currency exchange teller asked the man what he was doing and he then fled down an adjacent alley. Complainant was taken to the Mother Cabrini Hospital by police. She had not been bleeding, but she noticed blood on her clothes.

Complainant worked with a police artist to make a composite drawing of the attacker. The sketch was distributed although the complainant admitted on cross-examination that the drawing looked nothing like the defendant. She also testified she had told the police that the drawing did not look like her attacker. She was also shown photos several times by the school security police. She did not identify anyone but indicated one photo looked like her attacker. She also attended a lineup soon after the incident and did not identify anyone.

Approximately nine months after the incident, on January 16, 1981, the complainant saw a man she identified as her attacker standing in a class registration line at Malcolm X College. The man was wearing a wool knit ski cap, blue coat and beige pants when he was arrested in a classroom by school security police. The complainant made a positive identification of the defendant at trial as her attacker.

Dr. Maja Jagasia testified she examined the complainant in the emergency room at the hospital. It took 10 to 15 minutes to calm her down and find out what happened. Dr. Jagasia conducted an examination and prepared a Vitullo Rape Kit. She found complainant suffered no external wounds but did observe blood on complainant’s foot, thighs and jacket.

Josephine Deleito, the teller at the currency exchange, testified that the complainant came into the currency exchange and endorsed a check with her name and the word “help.” Upon noticing this the witness summoned the police and asked a man near the entrance of the currency exchange if she could help him with anything. The man told her he wanted a stamp and walked out of the currency exchange. She described this man as tall, “like six feet,” slender and in his early 20’s.

She further testified that defendant looked like the man she saw in the currency exchange but could not make a positive identification. She also had viewed a lineup on January 17, 1981. Of the five people in the lineup, she thought one looked like the man in the currency exchange, but she was not positive. She identified a photograph of the lineup and the man she picked out. She testified this man looks like the defendant. On cross-examination, she reiterated she was not positive of her identification of the man in the lineup as the one she saw in the currency exchange. She also could not be sure the man in the lineup was the defendant.

Richard Law testified that he was assigned to investigate this case on the day of the incident. He stated the complainant was shown numerous photographs. She also viewed a four person lineup on the evening of the incident without identifying anyone. On cross-examination, he stated that on one occasion the complainant picked out a photograph of a man who looked “very much” like the offender. It was not a photograph of defendant.

James Griffin was the Chicago police detective assigned to this case on January 16, 1981, the day defendant was taken into custody. He spoke with the defendant and gave him his Miranda rights. He asked defendant where he was on April 15, 1980. After finding out that date was a Tuesday, defendant told him that he was in school. An assistant State’s Attorney later asked the same question and received the same answer. During cross-examination Griffin stated defendant denied participation in the incident and stated he was probably in school on the date of the incident. Griffin also testified that defendant was not charged until January 17, 1981.

Thomas O’Malley worked for the Chicago Board of Education. In April 1980, he worked at a special education facility known as the Chicago Program Center. At the time, he was acting assistant principal supervising the teachers. He identified defendant as a participant in the program from April through June 1980. He also identified an attendance book kept by the teacher for the classroom assigned to defendant. This attendance book indicated defendant was absent from school the entire day on April 15, 1980. O’Malley stated on cross-examination that he did not keep the attendance book and had no independent knowledge of whether defendant was in school on April 15, 1980.

The State’s final witness was John Quattrocki of the Chicago Police Department Crime Laboratory. He tested the blood stains found on the complainant’s clothing. He also analyzed the samples of blood taken from the complainant and defendant. He determined the blood stains were type A blood. Complainant’s blood was type O and the defendant’s blood was type A. Quattrocki stated the clothing was kept in the evidence property section of the police headquarters. That section is located in the subbasement of the building where there are no temperature or humidity controls and the temperature fluctuates from 40 degrees in the winter to as high as 105 degrees in the summer. Of the general population in the United States, he testified, 40% to 45% of the people have type A blood. In the black population, of which defendant is also a member, 27% have type A blood. His examination took place over the last two weeks in December, 1981.

On cross-examination, Quattrocki stated the clothing and Vitullo Rape Kit were received at the crime laboratory on April 16, 1980. He examined the rape kit in 1980 but did not do any tests on the clothing at the same time. Quattrocki also stated blood stains could deteriorate with the passage of time. The Chicago Police Department did not preserve extracts of blood stains from clothing in liquid-nitrogen-filled test tubes. He was unfamiliar with the procedures used by other law enforcement agencies. He was aware, though, of methods to preserve blood stains.

Quattrocki further testified on cross-examination that blood may not be tested indefinitely, although there are determinations that can be made. The validity of such determinations are another matter. He also testified that blood may be tested for subtypes, that type A blood may differ according to subtype, and therefore be from different sources. He did not do any subtyping tests in this case.

Emmett Harmon testified for the defense. He is an analytical biochemist and technologist at Oak Park Hospital and owns a clinical lab for forensic studies. He received the clothing and blood samples from the crime lab. Harmon explained various systems of establishing blood types, among them the common ABO system and the Rh factor system. Different recognizable antigens on the surface of a blood cell allows for blood typing to be done. He tested the blood stain on the panties and the vial containing defendant’s blood sample for Rh antigen activity. Defendant’s blood sample exhibited an “Rh antigen-like activity” while the stain did not have “Rh antigen-like activity.” It was his conclusion that the blood in the vial and the stain on the panties were not of the same origin. Harmon stated that blood stains may be studied for years, and he has successfully tested four-year-old stains. He also stated that based upon his research and experience the Rh antigen system is as stable as the ABO antigen system.

Upon cross-examination, Harmon stated he examined the clothing before making any tests. He did this to determine whether the material had been damaged during storage. He did not do any tests related to the ABO system. Harmon further described the steps he took in preparing the blood stain.

Harmon again testified that the ABO and Rh systems are the hardiest for testing purposes. He did state, however, that extreme heat and cold would make a blood stain more difficult to analyze. Admitting that some literature indicates that conclusions from negative typing in the Rh testing of older stains is unreliable, Harmon stated the more recent literature has found that not to be true. Harmon denied the negative finding he made of Rh activity in the extract from the panties was a false reading.

The State presented the testimony of Frank Stolorow as a rebuttal witness. He is the serology coordinator for the State crime lab bureau at the Training and Applications Laboratory of the Illinois Department of Law Enforcement. He testified to the procedures he would use in making an Rh antigen test on blood stains. He stated that his lab does not use the method used by Harmon when testing a blood stain for Rh type because it is “less sensitive” than other tests.

Stolorow indicated the term false negative in serology refers to results of an analysis that would indicate the absence of a factor when in fact the factor was originally present. He testified that environmental conditions could cause a false negative finding. These conditions, such as bacteria, humidity, sunlight and extremes in temperature, can lead to the gradual decomposition of a blood stain. Based on literature and his experience, Stolorow placed the time dependability for the Rh analysis of blood stains between six months and one year.

He further stated that conclusions can be drawn no matter how old the stain, but, the significance of the age of the stain is important in drawing the conclusion about the absence of what is found.

He concluded by expressing his opinion that the ABO system is more stable in dry blood stains that the Rh system. On cross-examination he stated there are numerous techniques of preserving blood stains. He stated the Department of Law Enforcement is supplied with liquid nitrogen containers in which liquid blood stains are stored.

Defendant first argues he was denied a fair trial because the State wrongfully withheld dried blood samples which could have provided exculpatory evidence. Defendant contends the State allowed the blood samples to deteriorate before testing them and finally allowing the defense to make tests. It is further argued the State violated its duty of disclosure by improperly preserving this possible exculpatory evidence. United States v. Bryant (D.C. Cir. 1971), 439 F.2d 642; People v. Taylor (1977), 54 Ill. App. 3d 454, 369 N.E.2d 573; 87 Ill. 2d R. 412.

According to the State’s case-in-chief, the blood type of the stains on the complainant’s clothing matched that of defendant's blood. Defendant’s expert determined that the subtypes of the blood stains and defendant’s blood differed. He concluded the blood stains could not have come from defendant. The State’s expert testified in rebuttal that the subtyping analysis used by defendant’s expert was unreliable because of the gradual decomposition of the blood stains. Defendant concludes that because the blood stains were favorable, or potentially favorable, and were material to his guilt or innocence, the State’s withholding them violated its duty of disclosure and his convictions cannot stand. People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255; People v. Nichols (1976), 63 Ill. 2d 443, 349 N.E.2d 40; People v. Keith (1978), 66 Ill. App. 3d 93, 383 N.E.2d 655.

The State argues that it properly handled the clothing since normal procedures were followed and the evidence was stored at police headquarters. It further contends there was no suspect or pending proceedings at the time it received the clothing and that it did not have the duty to test the clothing or preserve it so that every possible test could be performed. We disagree. The duty of the State to disclose evidence to a defendant (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194) must attach to the State when it has first gathered and taken possession of evidence to a crime. “Otherwise, disclosure might be avoided by destroying vital evidence before prosecution begins or before defendants hear of its existence." (United States v. Bryant (D.C. Cir. 1971), 439 F.2d 642, 651; see People v. Moore (1978), 61 Ill. App. 3d 694, 378 N.E.2d 516; People v. Taylor (1977), 54 Ill. App. 3d 454, 369 N.E.2d 573.) This is not to say the State has a duty to disclose at the investigatory stage, but that a duty to preserve exists so that independent analysis and tests may be made by a punitive law violator. (54 Ill. App. 3d 454, 457; see 87 Ill. 2d R. 412(e)(i), (g).) Not only does such a rule protect the rights of the defendant, but also society’s interest in the integrity of the judicial system. (People v. Nation (1980), 26 Cal. 3d 169, 604 P.2d 1051, 161 Cal. Rptr. 299.) However, this issue standing alone is not dispositive of defendant’s case.

We must determine whether the State has breached its duty to preserve evidence, and if so, what effect this breach would have on defendant’s convictions. The duty to preserve evidence focuses on the fairness of the trial process. We recognize the prosecution’s link to law enforcement agencies and the attendant advantage in obtaining evidence. (People v. Vargas (1983), 116 Ill. App. 3d 787, 452 N.E.2d 736; People v. Ruffalo (1979), 69 Ill. App. 3d 532, 388 N.E.2d 114; see United States v. Bryant (D.C. Cir. 1971), 439 F.2d 642.) Defendant contends the physical evidence and laboratory reports were not tendered even though oral requests were made during 11 court dates over 11 months. During this time those reports were ordered by the prosecutor. The record reveals that most of the time spent during these, and other, hearings was directed at securing the police reports from the University of Illinois-Chicago and Malcolm X College security police. Also during this time, continuances were agreed to by defense counsel, often without any specific request for the lab reports. While it may be theoretically possible that a more complete analysis might have been undertaken had the police made added efforts to refrigerate the blood stains, under the circumstances of this case we cannot say the State’s actions amounted to a breach of its duty.

Although there might have been an element of unfairness if it appeared that no effective testing could have been made, this is not the case here. (See People v. Moore (1978), 61 Ill. App. 3d 694, 378 N.E.2d 516.) In People v. Moore, the failure to refrigerate the evidence, a sample of defendant’s saliva, did not violate the duty “not to dispose of evidence” where the defendant’s expert categorically stated the sample could be successfully tested. In our case, defendant’s expert, Harmon, testified that blood stains may be studied for years and had successfully tested stains which were four years old. He further stated his opinion that the Rh system, upon which his test was predicated, was as stable as the ABO system. Harmon also noted that he examined the clothes and stains for the effect of storage. The State’s rebuttal expert, Stolorow, in challenging Harmon’s conclusions, questioned the methodology used by Harmon. Stolorow also stated that environmental conditions can lead to the gradual decomposition of blood stains, and, based upon his experience and study, the time dependability for Rh analysis was six months to one year. The jury was fairly given the opposing sides of the argument and we find no prejudicial error. People v. Moore (1978), 61 Ill. App. 3d 694, 378 N.E.2d 516.

Defendant next argues that he was not proved guilty beyond a reasonable doubt because complainant’s identification is weak and was improperly corroborated by the blood analysis discussed above. Defendant claims complainant’s identification, coming nine months after the incident was not sufficiently clear and convincing, citing People v. Eichelberger (1980), 81 Ill. App. 3d 1012, 401 N.E.2d 1208. He also contends the clothes he wore when first identified by the complainant (ski cap, beige pants and blue coat) led her to erroneously believe the defendant was her attacker.

The positive and credible testimony of one identification witness is sufficient to support a conviction if the witness had the opportunity to observe the accused for a sufficient length of time. (People v. Dotson (1981), 99 Ill. App. 3d 117, 424 N.E.2d 1319.) It is the function of the trier of fact to pass upon the credibility of the witnesses and the weight of the evidence. (People v. Secret (1978), 72 Ill. 2d 371, 381 N.E.2d 285.) The lapse of time between the incident and the complainant’s identification of defendant goes to the weight of the testimony; it does not destroy its credibility. People v. Rodgers (1972), 53 Ill. 2d 207, 290 N.E.2d 251.

The complainant had ample opportunity to observe defendant during the incident which occurred during the middle of the day. People v. Eichelberger is inapposite to this case, and defendant’s reliance thereon is misplaced. A criminal conviction will not be set aside by a reviewing court unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) A review of the record convinces us that the evidence presented provided an ample basis for the jury’s determination of guilt.

Defendant argues a new trial is warranted because the trial court allowed the State to present the prejudicial and incompetent hearsay testimony of the arresting officer, Griffin. During preliminary questioning, Griffin testified that, after taking defendant into custody on January 16, 1981, he asked defendant where he was on the date of the incident. Griffin testified defendant asked what day of the week it was and then said that he probably was in school. School records indicate defendant was absent from school on the day of the incident.

Defendant contends this testimony was inadmissable hearsay which was improperly impeached by the school attendance record, citing Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, and People v. Fritz (1981), 84 Ill. 2d 72, 417 N.E.2d 612. These cases are inapposite to the circumstances found in this case. Defendant’s statement to Griffin was an admission. An admission is a statement of independent fact by a party which, when taken in connection with other facts, may lead to an inference of guilt of the alleged crime. (People v. Olbrot (1982), 106 Ill. App. 3d 367, 435 N.E.2d 1242.) This was an admission because the assertion, when considered with other proof which showed it was erroneous, indicated a consciousness of guilt (McCormick, Evidence sec. 144, at 310 (2d ed. 1972)) and it is admissible as substantive evidence for the purpose of showing guilt (People v. Burns (1981), 99 Ill. App. 3d 42, 424 N.E.2d 1298).

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

Affirmed.

ROMITI and JIGANTI, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    ELMER BENSON, not Indiv., but as Debtor-in-Possession for Elmer Benson, Indiv. and d/b/a Benson & Sons Denim Den, Debtor, Plaintiff-Appellant, v. BRADFORD MUTUAL FIRE INSURANCE CORPORATION, DefendantAppellee.
    Second District
    No. 82—752
    Opinion filed February 23, 1984.
    Rehearing denied February 23, 1984.

      Richard J. Mason and Sharon P. Riley, both of Levit and Miller, Ltd., of Chicago, for appellant.
    James R. Buck, of Klein, Stoddard & Buck, of Sycamore, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff’s appeal from a directed verdict in favor of the defendant raises the issue of the quantum of proof required to submit a theft claim to the jury in a suit on an insurance policy providing coverage for “[tjheft or attempt thereat, excluding *** mysterious disappearance ***.”

Elmer Benson, as a debtor in possession under bankruptcy proceedings (Benson), sued Bradford Mutual Fire Insurance Corporation (Bradford) claiming that 2,400 to 2,500 hogs had been stolen from him sometime between September 1975 and August 1977. This amounted to approximately 60% of his herd. Suit was brought after Bradford had refused to pay the claim, alleging failure to comply with reporting terms under the policy and denying that the loss was from theft.

Benson was a farmer who operated a feed store business in Sandwich, Illinois. In conjunction with his feed store business, he had a feed dealership with Central Soya. Later, the feed store developed into a retail farm clothing store, the Denim Den. In 1975, he began his feeder hog business by entering into an agreement with Central Soya under which he agreed to use Central Soya’s complete feed in raising feeder pigs from about 40 pounds up to a market weight of 220 pounds and Central Soya agreed to finance the feed. The process usually took about 16 weeks. Swift and Company agreed to finance the purchase of the feeder pigs, retaining a security interest in them, and agreed to buy the finished pigs for slaughter. Usually Benson purchased feeder pigs weekly from a company in Knoxville, Iowa. After each purchase he sent Swift up a copy of the sales rights and the weight tickets. When the pigs were finished and ready for slaughter, he sold them to Swift at a price $1 under the average hog market price at Joliet and Peoria on the day of sale. Benson conceded that there was a discrepancy of 700 head between his farm ledger and Swift’s records.

Benson operated his feeder pig business on his own farm and on seven other nearby farms from March 19, 1977, to March of 1980. His home farm and some of the others were converted cattle farms but several were built for or substantially modified for raising hogs.

Benson introduced bills of sale, purchase agreements with Swift, and weight tickets to show that he purchased 20,023 feeder pigs during the two-year time period and to show that he sold 15,156 of these to Swift. Accounting for the difference, he testified that Swift replevied 1,763 hogs; he sold 60 hogs to third parties; he used two hogs himself; 12 hogs were accidentally electrocuted; and four hogs died in a road accident. He introduced his farm record books which showed that 375 hogs died in 1976 and 195 died in 1977. Deducting all the hogs accounted for, the records indicate that 2,474 hogs were missing.

Benson testified that he generally counted his hogs when they were purchased and again when they died, were sold, or were otherwise disposed of. A neighboring experienced hog farmer testified that he accounted for his hogs in the same way. Other experienced hog farmers, acquainted with Benson’s operation, testified that he maintained good, typical, or reasonable conditions on his farm. Benson testified that there was no evidence of the hogs escaping, but that if they had it was unlikely that large numbers of hogs simply wandered off, because if a hog gets loose it usually stays close to the pen near the other pigs and near food. He did not notice any drop in feed consumption.

Neighboring farmers Alabastro and Leppert testified that they had lost pigs to theft in 1976 and 1977. Alabastro testified that he raised up to 250 head at one time and took a head count once a month. He said he found 100 head stolen in the winter of 1976-77. He said that he found no broken locks, jimmied doors, or tracks but that the theft accounted for the drastic feed drop he had noticed in the prior months. Leppert stated that he raised 600 to 700 feeder pigs and reported 37 pigs stolen in the fall of 1977. He said that he noticed tire tracks which caused him to suspect a theft and to count his pigs. There had been no subsequent evidence that the pigs appeared in the surrounding hog markets.

The farms used by Benson were spread out over 75 miles in two counties, although, Benson testified, the major loss was at his own farm. There were caretakers at the other farms whose responsibility was apparently limited to providing the pens and helping with their feeding and medication. Benson introduced testimony of Patricia Smith who had lived on a farm from which Benson reported 40 pigs missing, in a house 200 yards from the pens, which were 40 feet from the road. She testified that on two occasions she had heard trucks going into the farm and had heard pigs squealing late at night, but she did not look, and saw nothing. Bradford introduced testimony that Patricia Smith had stated to an investigator, however, that she knew nothing about an alleged theft of pigs, or anything about trucks on the farm.

Benson testified that no explanation other than theft would account for the loss of his pigs. He said that the pens and fences were secure and that the gates were checked daily and wired shut. He stated that despite the careful security, on several occasions gates that were wired shut at night were found open in the morning and that only a human could unwire the gates.

Bradford introduced testimony tending to show that a higher death rate, not accurately reflected in what it characterized as poor bookkeeping methods, accounted for the loss and that Benson’s bookkeeping methods were contrary to good farm management practices. An expert pig farmer stated that if he kept as many pigs as Benson did he would take periodic inventory. Benson recorded his death losses in multiples of five which Bradford’s farm records expert testified was unlikely actually to occur. Benson’s testimony that he kept accurate death records was contrary to his deposition where he stated that he kept no definite death records, only approximations. Also, it was shown that computer printouts kept by his son for a time showed many more deaths than did the farm records for that period. Other evidence was introduced to show that a theft of the magnitude claimed would be unlikely: the sheriff’s office failed to uncover evidence of theft; the other thefts in the area had been much smaller and were quickly discovered from signs of theft; and as David Wiber, a hog buyer for Swift testified, it would have taken 12 semi-tractor trailers or 240 pick-up trucks to haul away 2,400 pigs, each loading process would be noisy and would take at least 20 minutes to an hour.

Bradford introduced evidence of other probable causes for Benson’s loss. Benson’s hired man testified for the defense that many pigs died from overcrowding or exposure. Both Benson and Hyland, the hired man, agreed that the pigs suffered from bloody scours, and that at least once many dead pigs accumulated. Hyland testified to a pile of hogs 20 feet by 20 feet, waist to shoulder high, while Benson testified to a pile of 20 to 25 pigs, that he buried with a front-end loader.

Bradford’s expert swine consultant testified that a typical death rate in an operation like Benson’s could vary from 8% to 30%; and that the winter of 1976 to 1977 was especially hard on pigs raised in open lots such as Benson’s.

At the close of Benson’s evidence, Bradford moved for a directed verdict, asserting that insufficient evidence of theft had been introduced. The court denied defendant’s motion for a directed verdict. At the close of all evidence, however, the trial court ruled (1) that there was enough conflicting evidence to go to the jury on the issue of plaintiff’s technical compliance with the policy, and (2) that there was insufficient evidence of theft to withstand defendant’s motion for a directed verdict.

We review under the standard that “verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorably to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) In making this determination all of the evidence must be considered. (37 Ill. 2d 494, 510. See also Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 156-57.) Substantial factual disputes must be resolved by juries, and questions of credibility or the weight of evidence are not to be decided under Pedrick. Spidle v. Steward (1980), 79 Ill. 2d 1, 10.

Benson has argued that we should apply the Pedrick rule to this case “with greater flexibility and tolerance and with appreciation of the practical difficulties of producing evidence,” in view of the inherent difficulty of proving theft. We reject the suggestion that Pedrick is a variable rule and should be differently applied in an insurance theft case than any other.

It is undisputed that circumstantial evidence may sustain a finding that an insured has suffered a loss covered under a policy of insurance (Holsapple v. Country Mutual Insurance Co. (1983), 112 Ill. App. 3d 512, 517; Cole v. Country Mutual Insurance Co. (1972), 5 Ill. App. 3d 335, 339). “Circumstantial evidence is the proof of certain facts and circumstances from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind.” (Pace v. McClow (1983), 119 Ill. App. 3d 419, 423-24.) Circumstantial evidence used to establish a claim need not support only one logical conclusion. It is sufficient if it supports a reasonable inference. (Mort v. Walter (1983), 98 Ill. 2d 391, 396.) Facts established by reasonable inferences are considered in directing a verdict. (98 Ill. 2d 391, 397.) But the circumstances upon which the insured relies must support a reasonable conclusion of theft to allow recovery. (See, e.g., Lashmett v. Country Mutual Insurance Co. (1961), 29 Ill. App. 2d 281, 290 (insufficient circumstantial evidence to support a reasonable conclusion of poisoning by malicious mischief).) The jury may not base its verdict on speculation, but only on a reasonable inference. Tiffin v. Great A. & P. Tea Co. (1959), 18 Ill. 2d 48, 60.

Evidence of theft of livestock is, by the nature of the activity, difficult to prove. However, cases where livestock thefts were proven presented stronger evidence than plaintiff presented here. Accurate records and close observation permitted relatively swift discovery of the thefts in cases where it was proven. Plaintiffs witness Alabastro who lived in the area and had reported stolen pigs, testified he had noticed a drastic feed consumption drop during the month in which the loss occurred. Plaintiff’s witness Leppert testified to tire tracks near the time of his loss.

In contrast, defendant took no monthly counts, reported no feed consumption drop, reported no approximate dates when he discovered losses, nor reported any temporal relationship between the unlocked gates or unusual truck noises and any specific losses. Here the sole piece of direct evidence plaintiff presents is that 1,400 pigs disappeared over a two-year period. Plaintiff presents positive circumstantial evidence from which he maintains a jury could reasonably infer theft consisting of mysteriously unlocked gates at unspecified times, and an unusual truck sound at one farm on an unspecified date in June 1977. Plaintiff also submits items of negative circumstantial evidence: (1) that he did not sell or otherwise dispose of the hogs; (2) that he ran his operation adequately; (3) that the pigs did not escape, since escaping pigs would have stayed close to their source of food; and (4) that the pigs did not die since no one reported unusually high deaths at his operations. Some of this testimony was contested, but even viewing this evidence in the light most favorable to plaintiff, it does not support a reasonable inference of theft.

The cases discussed by plaintiff in support of its position do not argue for a contrary conclusion.

In Cole v. Country Mutual Insurance Co. (1972), 5 Ill. App. 3d 335, a hog farmer, insured for damages caused by vandalism and malicious mischief, recovered when the main power switch controlling ventilation fans for the hog barn was pulled. The court noted that the height of the switch ruled out any accidental pulling, the power supply was on and Cole had found the ventilation working normally in the morning. Further there was testimony that the doors to the building were shut the morning of the occurrence and were open when the damage was discovered later in the same day. In Holsapple, a loss from vandalism and malicious mischief was allowed to go to the jury on similar evidence which ruled out accidental or intentional acts. In Lashmett v. Country Mutual Insurance Co. (1961), 29 Ill. App. 2d 281, 290-91, however, a jury verdict based on the finding that sows, hogs and pigs were “wilfully and maliciously ingested with poison by a person or persons unknown,” permitting recovery under the vandalism and mischief clause of the insurance policy, was reversed. In Lashmett, the court noted that there was no testimony of anything unusual happening at the barn, no barking of watch dogs, and no evidence of wrongdoing before the loss. There was also evidence sufficient to raise an inference that the swine might have eaten rats and accidentally ingested Warfarin, a poison used to kill rats in a neighboring farm about one-half mile from the feed lots of the plaintiff. 29 Ill. App. 2d 281, 288-90.

No case has been found in Illinois considering what quantity of evidence a plaintiff must present to go to the jury in order to prove theft of livestock within the coverage of an insurance policy which excludes mysterious disappearance. There are, however, various cases in other jurisdictions which have been referred to by the parties. A plaintiff must prove more than mere disappearance to prove theft. (Long v. Glidden Mutual Insurance Association (Iowa 1974), 215 N.W.2d 271, 272-73.) “Theft” as used in an insurance policy, where it is not defined, is given its popular meaning as covering any wrongful appropriation of another’s property to the use of the taker. (Steinbach v. Continental Western Insurance Co. (Iowa 1976), 237 N.W.2d 780, 782.) In an action to recover on a policy insuring against theft the same quantum of proof is not required to support a recovery as is necessary to support a conviction for theft under the criminal law. (Lovas v. St. Paul Insurance Cos. (N.D. 1976), 240 N.W.2d 53, 55.) “Theft” must be construed to mean something other than escape, mysterious disappearance, inventory shortage, wrongful conversion or embezzlement, because these are specific exclusions in the insurance policy. Raff v. Farm Bureau Insurance Co. (1967), 181 Neb. 444, 447, 149 N.W.2d 52, 55. See also Baugher v. Hartford Fire Insurance Co. (1974), 214 Kan. 891, 899, 522 P.2d 401, 408.

It is, of course, true that the circumstances in each of the cases dictate whether the insured has offered sufficient proof to go to the jury. Benson places considerable reliance on Coastal Plains Feeders, Inc. v. Hartford Fire Insurance Co. (5th Cir. 1977), 545 F.2d 448. In Coastal Plains, 512 cattle were missing over a SVa-month period. There was evidence that persons who lived on a “lonesome” dirt road leading to the back pens of the feed lot saw an unmarked cattle truck going up a road toward the lot at dusk without headlights and also heard a truck return down the road in the early hours of the morning, with further evidence that no such large truck had been seen on the road before or since the loss. (545 F.2d 448, 450.) The court declined to decide whether the evidence that was presented tending to show that the disappearance of the cattle was not due to death, sale or reclamation by owners, straying, or miscounting, would have been sufficient by itself to present a jury case. (545 F.2d 448, 453.) In Lovas v. St. Paul Insurance Cos. (N.D. 1976), 240 N.E.2d 53, the court refused to set aside a verdict in favor of the insured, applying a standard similar to the Pedrick rule. There was evidence that after some hogs had been taken to market a loss of 79 hogs was discovered on January 29, 1974. All hogs had been accounted for on December 20, 1973. At the time of the discovery no breaches were found in the fence, no holes were found under it; the ground was frozen, with testimony that hogs cannot walk on ice; no hog carcasses were discovered in the area; no neighbors reported any stray hogs; and, further, the location of the hog pens was such that they were out of sight of the only house located nearby, and in an area where many trucks capable of carrying the hogs used the road.

In Baugher v. Hartford Fire Insurance Co. (1974), 214 Kan. 891, 522 P.2d 401, 29 cattle disappeared from an auction barn on two specific dates. On the first date five cattle were found missing when the view of one of the partners running the auction barn was obscured by a semi-tractor trailer for 15 minutes; and on a second occasion 19 head were found to be missing overnight, with evidence that a gate was found open and a calf was running loose in an alley. Further, there was evidence that one of the auction barn’s truck drivers disappeared two weeks after the incident and that a mysterious truck had been seen near the pens on the evening prior to the second loss. The combination of these circumstances was found sufficient to support the jury’s verdict finding proof of theft under the policy. 214 Kan. 891, 903, 522 P.2d 401, 411.

In Raff v. Farm Bureau Insurance Co. (1967), 181 Neb. 444, 149 N.W.2d 52, the insured claimed that 24 of his 60 hogs were missing. A neighboring farmer told him that some hogs had come to his farm and believing that they belonged to someone other than the insured he had called the other farmer to come and get them. That farmer had determined that they were not his hogs and said he abandoned them at a bridge near his farm. No hog tracks were found near the bridge where the hogs were last seen when the insured looked there several days after the disappearance; and there was no evidence of vehicle tracks in the vicinity of the bridge or on his farm where the hogs could have been loaded. Under these circumstances the court concluded that a most plausible conclusion would bring the loss of the hogs within the exclusions rather than the coverage of the policy and that there was insufficient evidence to go to the jury. 181 Neb. 444, 448, 149 N.W.2d 52, 56.

We find the Illinois cases cited by Benson involving vandalism, which went to the jury, factually dissimilar. In Holsapple v. Country Mutual Insurance Co. (1983), 112 Ill. App. 3d 512, the hogs were kept in confinement enclosures, not open feed lots; the loss was confined to a single day when the insured was able to state the exact number of pigs alive in the morning (270); and later in the same day 195 pigs were found dead. In addition, the cause of the electrical failure resulting in the deaths was proved by expert testimony. In Cole v. Country Mutual Insurance Co. (1972), 5 Ill. App. 3d 335, the loss of 485 pigs in a confinement enclosure was discovered on the day it occurred, under circumstances almost identical to those in Holsapple.

However, in Lashmett v. Country Mutual Insurance Co. (1961), 29 Ill. App. 2d 281, a case for the jury based on the claim that the swine were poisoned by human intervention was not made on facts that the insured did not see or hear anything unusual at the barn or around the premises; three hunting dogs on the place located near the barn did not bark; there was no evidence of wrongdoing in connection with the feeders or the water tank; and there was an alternative cause for the poisoning. 29 Ill. App. 2d 281, 288-89.

In the case before us, the evidence does not establish a reasonable inference of theft. It was shown that the caretakers were in a position to see the pens and to hear anything unusual, yet, with the exception of Mrs. Smith, who lived on the Moyer farm and who reported hearing a truck in the night once, none of the caretakers testified. Benson did not testify to hearing or seeing anything unusual at his farm where the majority of the pigs, he said, were taken; and there was no evidence that his German Shepherd watch dog warned of intruders on any occasion. Benson testified that he had found gates to his pens open on several occasions, but he could not remember the particular times and there was no testimony which related these circumstances to the loss of his pigs. The testimony as to other thefts in the area were not related in time or place to the loss claimed by Benson. (See Holsapple v. Country Mutual Insurance Co. (1983), 112 Ill. App. 3d 512, 517-18.) Benson at no time noticed any reduced feed consumption by his herd. This appears to be contrary to his claim that practically 60% of his herd had been stolen. The nature and quality of Benson’s farm records taken as a whole did not amount to positive evidence of the loss by theft. Although there was testimony of the presence of disease in the herd, and although Benson’s records showed minimal losses from disease, these records were insufficient, of themselves, to permit a jury to conclude that the losses were by theft and not by mysterious disappearance or other causes excluded under the policy.

Moreover, Bradford presented a credible explanation which would account for substantially greater losses from disease. Under the circumstances we cannot conclude that theft was either the only logical explanation for the loss or that the evidence viewed under the Pedrick standard supports, by reasonable inference, a jury verdict for Benson.

Benson has also claimed error in the exclusion of testimony of a neighboring farmer, Robert Huette, that he lost a substantial number of hogs by theft shortly after Benson ceased his operations. Pursuant to an offer of proof he would have testified that he had a hog feeding operation from five to 12 miles from Benson’s farm at four different locations and handled up to 4,500 heads of hogs at a time. The offer of proof, which was denied, showed that there were 640 hogs stolen from his farms during the winter of 1977 and 1978. The trial court concluded that even if the testimony showed thefts in the area, Benson had failed to establish any connection between those thefts and his alleged thefts. We agree. Evidence is relevant if it has a tendency to make a necessary fact more or less probable. (People v. Free (1983), 94 Ill. 2d 378, 413.) We agree with the ruling of the trial judge that the particular evidence did not satisfy that test. The determination whether particular evidence is relevant is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1018.

Benson has also claimed error in the exclusion of evidence that one Bill Congdon confessed to stealing hogs in the area. An offer of proof was made that Michael Olsup, a former deputy sheriff for the Kendall County sheriff’s office, could so testify. Olsup was permitted to testify to the fact that Congdon was a convicted farm burglar in the area but was not permitted to go into the confession. Benson relies on the rule that a declaration against interest by a third party is admissible as an exception of the hearsay rule. However, the requirements are that the declarant is unavailable, that the declaration was against the declarant’s pecuniary interest when made, that the declarant had competent knowledge of the facts declared, and had no probable motive to falsify. (Kleeman v. Fragman Construction Co. (1980), 91 Ill. App. 3d 455, 463.) The party seeking to introduce a declaration against interest has the burden of proving that the declarant is unavailable. (91 Ill. App. 3d 455, 463.) Benson merely showed that Congdon was in prison but offered no proof of efforts to obtain his testimony by his deposition or otherwise. Moreover, Congdon’s testimony would have added little since the fact that Congdon had been convicted of hog thefts from the area is in the record.

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

Affirmed.

UNVERZAGT and LINDBERG, JJ., concur.