author: PRESIDING JUSTICE CAMPBELL

text:
      In re MARRIAGE OF AUDREY A. ZABINSKI, Petitioner and Counterrespondent-Appellant, and JOSEPH J. ZABINSKI, Respondent and Counterpetitioner-Appellee.
    First District (1st Division)
    No. 81-1421
    Opinion filed December 21, 1981.
    Gregory P. Turza, of Chicago, for appellant.
    Burton F. Grant, of Grant and Grant, of Chicago, for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Audrey A. Zabinski, petitioner (hereinafter called the wife), brings this appeal from an order of the circuit court of Cook County granting the petition of Joseph J. Zabinski (hereinafter called the husband) for a change of custody, and awarding permanent custody of the parties’ minor children to the husband. The issues presented for review are: (1) whether the trial court erred by modifying a prior permanent custody order without making specific findings of fact in accordance with the requirements of section 610(b)(1), (2), (3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)(1), (2), (3)); (2) whether the trial court erred by applying the presumption in favor of retaining the present custodian under the prior custody order to the husband rather than to the wife; and (3) whether the trial court denied the wife her day in court in violation of her right to due process under the United States Constitution by accepting the finding of serious endangerment set forth in the order for a temporary change of custody, instead of basing its findings on the evidence presented at the full hearing on the motion for permanent custody.

On December 21, 1978, the wife was granted a dissolution of marriage from the husband. By agreement of the parties, the wife was awarded permanent custody of the two minor children, Kimberly Ann, born August 14,1970, and Joseph Jr., born August 18,1972. On March 26, 1980, the husband filed a petition for change of custody pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act. The petition alleged that subsequent to the entry of the judgment for Dissolution of Marriage a substantial change in circumstances had occurred with respect to the welfare of the minor children in that “their present environment may seriously endanger their physical, mental, moral, or emotional health.” After an emergency hearing on the petition conducted April 2, 1980, the trial court found that the wife was cohabiting with Dan Grube, a male person to whom she was not married and that the present environment of the children may endanger seriously their physical, mental, moral, or emotional health. The court then awarded temporary custody of the minor children to the husband, without prejudice, commencing April 2, 1980, subject to visitation rights in the wife.

On February 13,1981, after a full hearing on the husband’s motion for permanent custody, the trial court awarded permanent custody to the husband. The court included the following findings in its order for change of custody:

“C. Temporary Custody of the minor children was awarded to the Respondent, Joseph J. Zabinski, on April 2, 1980 pursuant to a finding that the children’s present environment at that time seriously endangered their physical, mental, moral and emotional health;
« « tf
E. Both children expressed a desire to live with the Respondent and not with the Petitioner;
F. That it would constitute a serious endangerment to the children to remove them from the stability and continuity of their environment with the Respondent, Joseph J. Zabinski, thus subjecting the children to being shuttled back and forth between the environment of Respondent and environment of the Petitioner.
G. For the children to remain with the Respondent would have a stabilizing effect in accordance with the intent of the Statute under §610.
H. The children have adjusted to their present environment.
I. It is in the best interest of the children to remain in their present environment with the Respondent.”

Initially, the wife contends that the trial court erred by modifying a prior permanent custody order without making specific findings in accordance with the requirements of section 610(b)(1), (2), (3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)(1) through (3).) The wife cites In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499, wherein the Illinois Supreme Court held that a child custody modification must be supported by one of the three elements of section 610(b), and that explicit findings by the trial court on points (1), (2), or (3) are indispensable requirements of the statute. The wife urges that in the instant matter the trial court made no explicit findings on points (1), (2), or (3) of the statute, instead the trial court erroneously used subsection (b)(3) language of serious endangerment in connection with the court’s desire that the children not be removed from the stability of the temporary custody environment provided by the husband. This desire was expressed by the court without a finding that the environment provided by the wife was endangering to the children.

The husband urges that the final custody modification order awarding permanent custody to him was supported by the manifest weight of the evidence and should not be disturbed. He urges further that the final order satisfied the requirements of section 610(b), in that the order was based in part on the finding of the court that at the time of the entry of the temporary child custody order the wife was cohabiting with a male person to whom she was not married. The husband relies on Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421, in support of his position, wherein the Illinois Supreme Court held that the custodial parent’s “disregard for existing standards of conduct instructs her children, by example, that they, too, may ignore them [citations] and could well encourage the children to engage in similar activity in the future. * * * their daily presence in that environment was injurious to the moral well-being and development of the children.” (78 Ill. 2d 337, 346-47.) The husband also relies on In re Marriage of Neeld (1981), 96 Ill. App. 3d 40, 420 N.E.2d 1080, wherein the court held that explicit findings under section 610(b) are not required in a final custody order if those findings are contained in a temporary custody order.

At the time of the oral argument of the case at bar on appeal, counsel for the wife admitted that he drafted and prepared the order complained of and asserted the absence of a report of proceedings covering most of the final hearing was not a bar to a consideration of the statutory requirements of certain findings by the court mandated by section 610(b). In other words, the legal issues are raised as distinguished from factual issues.

The husband concedes that it may be appropriate to review a change of custody order on a legal issue raised solely as to the sufficiency of the findings contained in an order but that the question of whether the statutory requirements have been met entails a review of the evidence presented to ascertain whether the trial court’s order was against the manifest weight of the evidence. (In re Custody of Yuhas (1980), 87 Ill. App. 3d 521, 409 N.E.2d 148.) The husband suggests that to attempt to review the legal sufficiency of the order and the statutory findings contained in the order prepared by counsel for appellant without the entire record would be inappropriate under the circumstances of this case.

In our opinion we need not address the issue as to the statutory prerequisites without some reference in the record to ascertain if there was adequate support in the record essential for the findings with respect to section 610(b). (In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499.) In the absence of a proper record (Ill. Rev. Stat. 1979, ch. 110A, par. 321), we feel compelled to presume that the requisite statutory requirements were met (In re Custody of Youhas; Nenadic v. Grant Hospital (1979), 75 Ill. App. 3d 614, 394 N.E.2d 527), and that the action of the trial court was correct.

For the aforementioned reasons, we decline to discuss the other issues raised by appellant, and the judgment of the circuit court of Cook County is affirmed.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STAMOS JUSTICE DOWNING,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM PEARSON, Defendant-Appellant.
    First District (2nd Division)
    No. 79-2106
    Opinion filed December 22, 1981.

      DOWNING, J., concurring in part and dissenting in part.
    James J. Doherty, Public Defender, of Chicago (Thomas Finegan and Richard E. Gade, Assistant Public Defenders, 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 STAMOS

delivered the opinion of the court:

William Pearson, defendant, appeals his conviction for murder, three counts of armed robbery, attempted armed robbery, unlawful use of weapons, and armed violence. Defendant was sentenced to concurrent terms of imprisonment of 40 years for murder, 20 years for each armed robbery, 10 years for attempted armed robbery, and 5 years for unlawful use of weapons. No sentence was imposed on the armed violence conviction.

Defendant, along with a number of other persons, was drinking and gambling at an “after hours” bar located on South Loomis in Chicago. He announced a hold-up, brandished a sawed-off shotgun and pistol, and fired several shots into the ceiling. The other customers all dove for cover, and a second series of shots was heard. Defendant then fled with the money, leaving behind the fatally wounded Sammy Priest.

On appeal, defendant claims the trial court erred in (1) denying his motion for a new trial based on the failure of the State to honor defendant’s request for disclosure of the arrest records of several witnesses for the State, and (2) denying his request for a one-day continuance. The State contends on appeal that the trial court erred in not imposing sentence on the armed violence conviction, and seeks a remand for the imposition of such a sentence.

I

In its discovery motion, the defense requested any record of prior criminal convictions of the witnesses for the State. The State did not respond to this motion, as it filed its answer to discovery three weeks prior to the filing of the defense discovery motion. The State’s answer tracked the standard discovery motion used by the Public Defender’s office, which requests “criminal records * * * to be used for impeachment.” Defendant was represented by private counsel.

The State did not disclose the arrest records of five occurrence witnesses. George Webb had a 1979 felony conviction for possession of a controlled substance. Barbara Walker had an outstanding bond forfeiture warrant on a 1973 attempted theft charge. William Wilbourn and James Remmer both had misdemeanor convictions for possession of marijuana and numerous gambling and drug arrests. Ewing Johnson had a number of gambling arrests.

Supreme Court Rule 412 (73 Ill. 2d R. 412) governs disclosure to an accused in a criminal case. Rule 412(a) (vi) states that the accused is entitled to the records of any criminal convictions suitable for use in impeachment of any person the State intends to call as a witness. In People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, the supreme court set forth the policy with respect to the use of prior convictions for impeachment. Rule 412(c) entitles the accused to any exculpatory material. This rule is a codification of the constitutional requirement of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. Ill. Ann. Stat., ch. 110A, par. 412, Committee Comments, at 681 (Smith-Hurd 1976).

The felony conviction of George Webb for possession of a controlled substance in 1979 was the type of conviction which might have been admitted for impeachment. We do not decide that question. The conviction occurred after the State filed its answer to discovery, but before the beginning of trial. The State contends that it should not be responsible for knowing that Webb was convicted of a crime after its answer to discovery was filed. The State argues that its answer listed over 70 witnesses and that “[i]t would be an unreasonable burden to require the People to continually monitor the activities of such a large number of witnesses.”

Supreme Court Rules 415(b) and 412(f), read together, create a duty on the State to be aware of any recent convictions of its witnesses. Contrary to the State’s contention, such a duty should not be excessively burdensome. While the State may have listed over 70 witnesses in its answer to discovery, it only called 13 at trial, three of whom were police officers. The State could have easily requested current Bureau of Identification sheets on the remaining witnesses. We therefore hold that it was error for the State to fail to disclose George Webb’s felony conviction to the defense.

The State contends that the failure to disclose Webb’s felony conviction was harmless error. It is clear that this error was harmless beyond a reasonable doubt. The defendant’s reply brief virtually concedes this point. Webb was only one of seven occurrence witnesses, and all testified to similar versions of the incident. His testimony was clearly cumulative. Defendant cites a number of cases for the proposition that once a discovery violation is found, a defendant need not establish prejudice in order to be entitled to a new trial. These cases deal with substantive evidence of an exculpatory nature and not with a prior conviction to be used solely for impeachment.

The State’s failure to disclose the arrest record of the other four occurrence witnesses raised a different issue, since none had any provable felony convictions. Barbara Walker’s arrest record listed an outstanding bond forfeiture warrant on a 1973 attempted theft charge, while the other three had prior gambling and narcotics arrests and misdemeanor convictions. The defendant does not argue that this material would have been admissible at trial for impeachment, but that “the investigative prospects afforded by it may well have enabled the defense to develop relationships existing between the various witnesses.” The defense argues that it might have found “a real or perceived interest, motive, or bias to testify falsely.”

The defense relies on People v. Galloway (1974), 59 Ill. 2d 158, 319 N.E.2d 498, where a conviction was reversed for failure of the State, upon specific request of the defendant, to disclose the arrest record of a key witness for the State. In Galloway, the witness was a drug addict and former prostitute who made an undercover drug buy from the defendant. Galloway is clearly distinguishable from the instant case. The crux of Galloway was the false representation by the prosecutor, coupled with the immediacy of the pending charge and its dismissal.

In the instant case, Barbara Walker’s outstanding warrant was over six years old, and no allegation of favorable treatment of her has been made by defendant. No substantial basis existed for claiming the materiality of this information, especially since Walker’s credibility was already damaged by her admission that she was the owner of the illegal “after hours” bar that housed a gambling operation.

Similarly, no substantial basis existed for claiming the materiality of the arrest record of the other three witnesses. Nothing contained in these records would have been admissible for impeachment. The prosecution’s failure to disclose these four arrest records was not error.

II

Defendant contends that the trial court erred in denying his request for a one-day continuance to secure the testimony of a physician who treated him for gunshot wounds.

It is defendant’s contention that the testimony of a Dr. Pearson was material to corroborate defendant’s testimony that he was shot twice during the incident. Defendant suggests this would support his theory that defendant’s action constituted a justified use of force. The defense claims that it did not anticipate the need for this testimony until a police officer testified in the State’s case in chief that defendant told him he had been shot once. Defendant submitted an offer of proof that the doctor would testify that defendant had been shot twice by weapons of different caliber. In a letter, submitted in support of defendant’s motion for a new trial, the doctor stated that he was not certain that the bullets were of different caliber but that, to the best of his recollection, they were.

Our reading of the record suggests the trial court gave defendant ample opportunity to present medical testimony. On Friday, September 21,1979, defense counsel advised the trial court of potential testimony by a Dr. Yamuth regarding alleged bullet wounds. At that time defendant’s attorney indicated that on September 10 he had received certain medical reports which he had not yet read. The trial court then reviewed the report and noted it referred to a “wound.” The court continued the case until Monday, September 24, to provide the defendant an opportunity to secure the presence of the doctor. On Monday morning, September 24, defendant advised the court he was waiting for a Dr. Pissard who was then in surgery and coming from Joliet. After the luncheon recess defendant’s attorney requested a continuance for a Dr. Pearson, admitting that defendant had informed him of Dr. Pearson some time ago. The trial court denied the motion for a continuance. The defendant’s offer of proof as to what the doctor would say was denied when defendant’s counsel admitted the doctor had told him that he (the doctor) had no recollection and would have to look at the hospital record of defendant.

A decision to grant or deny a continuance lies within the discretion of the trial court; it will not be disturbed absent a clear showing of abuse. The decision must be evaluated in light of the particular facts and circumstances that existed at the time. (See People v. Jackson (1979), 72 Ill. App. 3d 231, 236, 390 N.E.2d 47; People v. Rivera (1978), 64 Ill. App. 3d 49, 52, 380 N.E.2d 1018.) In light of the lack of certainty surrounding the doctor’s expected testimony, the obvious lack of diligence of defense counsel in determining the identity of the treating physician, and the previous continuance granted for the same purpose by the trial court, we cannot say that the trial court abused its discretion in denying the motion for a continuance. Trial counsel have a duty to prepare cases and be ready for trial where, as here, there was adequate opportunity to prepare.

Ill

The State contends that the trial court erred in not imposing sentence on the armed violence conviction and seeks a remand so the trial court may impose a sentence. We clearly have the authority, upon defendant’s appeal, to remand for imposition of sentence on a count on which the trial court did not impose sentence. (People v. Scott (1977), 69 Ill. 2d 85, 88-89, 370 N.E.2d 540; People v. Burns (1981), 99 Ill. App. 3d 42, 47, 424 N.E.2d 1298.) Under our recent decisions, it is proper to sentence a defendant for both armed violence and murder. (People v. Feierabend (1981), 98 Ill. App. 3d 731, 742, 424 N.E.2d 765; People v. Lynom (1981), 97 Ill. App. 3d 1113, 1122, 423 N.E.2d 1281; People v. Best (1981), 97 Ill. App. 3d 1083, 1087, 424 N.E.2d 29; contra, People v. Simmons (1981), 99 Ill. App. 3d 519, 524, 425 N.E.2d 1168.) Defendant cites the case of People v. Burnette (1981), 97 Ill. App. 3d 1015, 1021-22, 423 N.E.2d 1193, wherein the fourth division of this court decided this issue contrary to our decision in Feierabend. For the reason set forth in Feierabend, we do not agree with defendant.

Accordingly, the judgment of the circuit court of Cook County is affirmed, and this cause is remanded for imposition of a sentence on the armed violence count.

Affirmed and remanded.

HARTMAN, P. J., concurs.

JUSTICE DOWNING,

concurring in part and dissenting in part:

I fully agree with parts I and II of the majority opinion, which affirm defendant’s conviction. For the following reasons, I must dissent from part III, which remands this cause for imposition of sentence on the armed violence conviction.

Armed violence is the commission of any felony defined by Illinois law while armed with a dangerous weapon. (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.) The statute first became effective in 1967. Certain amendments were added effective February 1, 1978. Since the amendments, many cases have dealt with the issue of when convictions and concurrent sentences are proper for both armed violence and the underlying felony offense upon which the armed violence conviction is predicated. Two considerations are involved in determining whether convictions are proper for both armed violence and the predicate felony: “one act, one crime” (see People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273), and “double enhancement” (see People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627).

The doctrine of “one act, one crime” provides that a defendant may not be convicted of, or be given sentences for, more than one offense unless he commits more than one physical act. This doctrine was extensively discussed by the supreme court in People v. King, and recently applied in People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535.

The supreme court first addressed itself to the amended armed violence statute in People v. Haron. There it developed the doctrine of “double enhancement.” Harón was charged with aggravated battery, and armed violence predicated on the underlying felony of aggravated battery. Harón had committed an offense with a deadly weapon, which allowed the charge to be enhanced from battery to aggravated battery, and which also supported the charge of armed violence. The supreme court held this “double enhancement” to be contrary to the intent of the General Assembly, and thus affirmed the dismissal of the armed violence charge against Harón. See also People v. Van Winkle (1981), 88 Ill. 2d 220, 430 N.E.2d 987.

On the same day the Harón opinion was filed, the supreme court handed down People v. Myers. Myers was convicted, relevantly, of attempted murder and armed violence based upon the underlying offense of aggravated battery. (Defendant was not convicted of aggravated battery.) The relevant act involved the use of a knife in slitting the victim’s throat. The evidence showed that the defendant moved the knife from the victim’s neck twice while threatening the victim’s companion and cutting the latter’s fingernail. The supreme court applied the King doctrine, found each act of placing the knife against the victim’s throat to be sufficient under King to support a conviction, and thus affirmed the concurrent sentences for attempted murder and armed violence.

Since the effective date of the amended armed violence statute, the appellate court has considered a number of cases arising from the armed violence statute. In this district of the appellate court, a variety of results has been reached. The following summary illustrates the treatment of this matter by this district.

In the 1st Division:

People v. Jones (1981), 93 Ill. App. 3d 475, 417 N.E.2d 647. Defendant was convicted of unlawful restraint, armed violence, and two counts of unlawful use of weapons. Concurrent sentences were imposed for armed violence and unlawful use of weapons. Relying on King, the court vacated the unlawful restraint and one unlawful use of weapons convictions, and affirmed the armed violence and the other unlawful use of weapons charges.

People v. Mormon (1981), 97 Ill. App. 3d 556, 422 N.E.2d 1065. Defendant was convicted of rape and armed violence. The court, relying on King, held the act of rape with the victim held at gunpoint is only one act. The armed violence conviction was vacated. The supreme court granted the State’s petition for leave to appeal (1981), 85 Ill. 2d 572.

In the 2d Division:

People v. Crawford (1980), 90 Ill. App. 3d 888, 414 N.E.2d 25. This consolidated case involved, in Crawford, convictions of armed robbery and armed violence, and in Miller, convictions of rape, armed robbery, and armed violence. Relying on King, the armed violence convictions were set aside.

People v. Lynom (1981), 97 Ill. App. 3d 1113, 423 N.E.2d 1281. Defendant was convicted of voluntary manslaughter and armed violence. Relying on Harón and Myers, the court discussed the issue of double enhancement. The court found no improper double enhancement and affirmed the multiple convictions. Significantly, the “one-act, one-crime” issue was not discussed.

People v. Best (1981), 97 Ill. App. 3d 1083, 424 N.E.2d 29. The multiple convictions of deviate sexual assault, rape, burglary, and armed violence were affirmed. Defendant used a knife and threatened to kill if the victim did not submit. The court relied on Lynom and did not discuss the “one-act, one-crime” question.

People v. Feierabend (1981), 98 Ill. App. 3d 731, 424 N.E.2d 765. The multiple convictions of murder and armed violence based on a gunshot killing were affirmed. The court, relying on Lynom and Best, discussed the question of double enhancement. The issue of “one-act, one-crime” was not discussed.

In the 3d Division:

People v. Johnson (1981), 101 Ill. App. 3d 1060, 428 N.E.2d 1133. Defendant was convicted of murder by stabbing of the victim. He was further convicted and sentenced for armed violence. Disagreeing with the second division cases and relying on King, the court vacated the conviction and sentence for armed violence.

In the 4th Division:

People v. Burnette (1981), 97 Ill. App. 3d 1015, 423 N.E.2d 1193. Defendant was convicted and sentenced for murder and armed violence for a gunshot killing. Relying on King, the court held the victim’s shooting was one act and reversed the conviction and sentence for armed violence.

In the 5th Division:

People v. Jones (1980), 89 Ill. App. 3d 1030, 412 N.E.2d 683. The defendant was convicted of armed robbery, aggravated kidnapping, and armed violence. Based on King, the court reversed the conviction for armed violence on the theory of “pyramiding.”

People v. Simmons (1981), 99 Ill. App. 3d 519, 425 N.E.2d 1168, appeal allowed (1981), 85 Ill. 2d 581. The court held the convictions and concurrent sentences for involuntary manslaughter and armed violence resulting from a shooting death violated the principle of one act, one crime, and vacated the involuntary manslaughter conviction. The Simmons court acknowledged Lynom, but declined to follow it.

People v. Perez (1981), 101 Ill. App. 3d 64. Convictions an concurrent sentences for rape and armed violence were affirmed, relying on Best. The court dealt only with the issue of double enhancement and not with the issue of one act, one crime.

People v. Petrovic (1981), 102 Ill. App. 3d 282, 430 N.E.2d 6. Defendant was convicted of aggravated battery and armed violence. Based on Harón, the court found double enhancement in battery to aggravated battery, then to armed violence. The latter conviction and sentence were vacated.

It is obvious the amended armed violence statute has created problems. In this district a clear-cut policy has not developed. The problems of double enhancement and “one act, one crime” have led to inconsistent results. A proper analysis of whether convictions and concurrent sentences for armed violence and the predicate felony may be imposed requires a two-step analysis. First, the court should determine if multiple convictions and sentences violate the rule against double enhancement. (Harón.) Second, the court should determine if multiple convictions and sentences violate the principle of “one act, one crime.” King; Myers.

Turning to the instant case, defendant was convicted of murder and armed violence predicated on the underlying felony of murder, along with other crimes. The doctrine of double enhancement poses no problem. Defendant, however, committed only one act upon which the charges of murder and armed violence were based, the shooting of Sammy Priest. A series of gunshots, fired in a single burst, constitutes only one act. (People v. Connor (1980), 82 Ill. App. 3d 652, 660-61, 402 N.E.2d 862, appeal denied (1980), 81 Ill. 2d 595.) Thus, multiple convictions and concurrent sentences in the instant case violate the principle of “one act, one crime.” The trial court held that a sentence on armed violence would be duplicitous and not appropriate. I agree. (See Simmons v. United States (1978), 435 U.S. 6, 55 L. Ed. 2d 70, 98 S. Ct. 909.) I would affirm the judgment of the circuit court.

       See Ill. Rev. Stat. 1977, eh. 38, pars. 9 — 1, 18 — 2, 8 — 4, 24 — 1, and 33A — 2.

       The practice of filing an answer to discovery prior to the motion for discovery should be discontinued. The problems encountered in this case might have been avoided had the State followed Supreme Court Rule 412(d) which requires the State to file its answer to discovery “as soon as practicable following the filing of a motion by defense counsel.” 73 Ill. 2d R. 412(d).

       Rule 415(b) states, in relevant part:
      “If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, he shall promptly notify the other party or his counsel of the existence of such additional material ° °
      73 Ill. 2d R. 415(b).

       Rule 412(f) states:
      “The State should ensure that a flow of information is maintained between the various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged.”
      73 Ill. 2d R. 412(f).

       Parenthetically, there is no reason why the prosecution should not provide this information to the defendant upon specific request. Similarly, since defense counsel was able to obtain this information by subpoena for post-trial motions, he could have done so in advance of trial.


author: JUSTICE DOWNING

text:
    CHICAGO BOARD OF EDUCATION, Plaintiff-Appellee, v. ARTEE PAYNE, JR., Defendant-Appellant.
    First District (2nd Division)
    No. 80-1831
    Opinion filed December 22, 1981.

      Roosevelt Thomas, of Chicago, for appellant.
    Michael J. Murray, of Chicago (Christine Holtz, of counsel), for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

The Chicago Board of Education (Board) sought the dismissal for cause of tenured elementary school teacher Artee Payne, Jr. (Payne), pursuant to section 34 — 85 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 34 — 85). After an administrative hearing, an impartial hearing officer ruled that the Board’s dismissal of Payne was improper. On judicial review instituted by the Board, the circuit court of Cook County reversed the hearing officer’s decision. The central question raised on Payne’s appeal from the circuit court’s ruling is whether the court erred in finding that the hearing officer’s decision was against the manifest weight of the evidence and contrary to law.

On August 30, 1978, the general superintendent of schools instituted proceedings with the Board against Payne, charging him with conduct unbecoming a teacher in the Chicago Public Schools. This charge contained four itemized specifications, paraphrased as follows: (1) on or about February 6,1976, Payne knowingly had in his possession a quantity of marijuana; (2) on or about January 19, 1978, Payne knowingly had in his possession a quantity of marijuana; (3) on or about the same date, Payne knowingly had in his possession a controlled substance; and (4) such conduct was irremediable. The Board adopted the superintendent’s charge and specifications on the same date, and a hearing officer was appointed.

Hearings proceeded before that officer on four separate days. Chicago policeman Thomas Skol related that he had stopped Payne for a traffic violation at about 5 p.m. on February 6,1976. Skol asked Payne for his driver’s license. As Payne was searching his pockets for the license, he pulled out a clear plastic bag containing a relatively small amount of a crushed green substance. Skol advised Payne of his rights. At some point during the ensuing conversation, Payne admitted that the substance was marijuana and was arrested. Skol recalled that Payne pleaded guilty to possession of marijuana in return for a sentence of probation. Skol did not believe that Payne was performing any duties related to education at the time of the arrest.

Sergeant Emmett Boyd of the Chicago Police Department testified that he executed a search warrant on Payne’s residence, a motel room, on January 19,1978. Boyd searched Payne and found a white envelope containing crushed green plant and a small vial containing white powder. Payne was arrested.

Baymond Principe, a director of the Bureau of Teacher Personnel for the Board, stated that Payne holds a teaching certificate which entitles him to teach intermediate and upper grade school children. The age range of such children was 10-13 years. Principe learned of Payne’s entanglement with the police when his superior, Dr. Nina Jones, informed him about a newspaper article on Payne’s 1978 arrest. He contacted Payne and subsequently held a conference with him, where Payne denied the charge contained in the article and advised Principe that his attorney had told him to make no further statements.

On cross-examination, Principe related that he had no opportunity to view Payne at work in the classroom. No teacher evaluations of Payne indicated that he was under the influence of drugs while at school. The reports stated only that Payne was a good teacher. No complaints related to the charges against Payne had ever come to Principe’s attention. He was unaware of any of Payne’s students becoming involved with drugs as a result of Payne having been their teacher.

Dr. Nina Jones, assistant superintendent of personnel for the Board, had never met Payne. He first came to her attention when “someone called [her] and indicated that a teacher * * * had been arrested on a narcotics charge.” She discussed the case with Principe and then made a report to the general superintendent.

Dr. Jones stated that she believed illegal conduct on the part of a teacher would have a deleterious effect on the school system as a whole and would have an impact upon the particular school involved. Dr. Jones did not receive any complaints from any particular person concerning Payne. She noted that Payne’s evaluations were satisfactory.

After presenting Dr. Jones’ testimony, the Board rested. Payne called Jerry Hunter, one of his fellow teachers. Hunter related that Payne’s general reputation among his peers was that of a strong disciplinarian and a good teacher. He had not heard any bad reports about Payne’s performance as a teacher. Hunter knew nothing about any association Payne may have had with drugs. He heard no complaints from parents or teachers concerning that matter. He was aware of the newspaper articles on Payne’s arrest.

On cross-examination, Hunter noted that the articles produced a lot of discussion among teachers at the school. There was also some conversation about them among students. Hunter related that some teachers and students objected to Payne’s removal from the school.

Freddie McGee, another of Payne’s fellow teachers, stated that Payne had a good reputation among teachers, students, and parents. McGee knew of no involvement of Payne with drugs, nor of any students being influenced with drugs by Payne. The newspaper articles were the subject of general discussion among students and teachers. McGee agreed that information that a teacher was in possession of illegal substances would have a detrimental effect on the school system.

Jack Mitchell, a district superintendent for the Board, knew of no reports outside of the newspaper articles which connected Payne to drugs. The articles generated a lot of discussion among staff personnel at his office. He noted some parents were distressed that Payne was removed from his position at the school.

Payne testified on his own behalf. At the time of the hearing, he was in his 13th year as a teacher. Prior to that, he had been a fingerprint technician with the Chicago Police Department. At the school, Payne had a reputation as a disciplinarian. He was assigned the “problem kids,” that is, children who were involved with gangs or were otherwise in trouble with authority. Payne presented himself to the students as a father or big brother. His relationship with the parents was very good.

Payne discussed the circumstances of his 1976 arrest. He was stopped by Officer Skol. After his driver’s license was produced, Skol searched his car. In the back seat, Payne carried a drug abuse kit which he had been using for instruction in school. From the kit, Skol took a plastic bag, accused Payne of possessing marijuana, and arrested him. Payne went to court and pleaded guilty in return for a sentence of probation because the judge told him that upon completion of the probation term there would be no conviction on his record. Payne’s retained attorney was not present at the time he pleaded guilty.

Payne also stated that Sergeant Boyd arrested him in 1978. Payne denied that he possessed marijuana or cocaine at that time.

The hearing officer eventually ruled that the Board did not sustain its burden of proof with respect to the specifications concerning the 1978 arrest (a finding of factual insufficiency in the Board’s case). He further ruled that although Payne had pleaded guilty to the 1976 possession of marijuana charge, there was no evidence to show how this conviction had any effect upon Payne’s duties as a teacher, upon the students, or upon his fellow teachers (a finding of legal insufficiency in the Board’s case). The officer finally ruled that the 1976 occurrence was “not irremediable in and of itself.” Consequently, he held Payne’s dismissal improper.

The Board appealed this decision to the circuit court. The parties presented arguments, after which the court made the following oral findings:

“I find the decision of the hearing officer is contrary to the manifest weight of the evidence. In the Court’s opinion, the sole conviction on the ’76 offense of possession of marijuana is ample justification for discharging an otherwise qualified teacher. The evidence is clear that the students and the particular school are well aware of what had transpired, and in the Court’s opinion, has an adverse impact on the operation of the school system and his ability to teach and relate with the students. * * * I can’t in good conscience * * * say that a teacher who has been arrested with possession of marijuana is a fit teacher to teach the children of our community.”

I

Payne’s argument on appeal essentially is that the circuit court erred in ordering his dismissal based upon its finding that the hearing officer’s decision was against the manifest weight of the evidence and was contrary to law. Examination of the court’s just-recited oral findings supporting its decision shows that the activities of Payne in February 1976 served as the sole basis for its approval of his dismissal by the Board. Thus, we focus upon the evidence regarding that occurrence.

A.

We first note that there is no real factual dispute in this case regarding the 1976 possession of marijuana charge against Payne. He admitted his guilt of this crime in court by pleading guilty, and he received a sentence of probation therefor. On appeal, Payne’s attorney attempted to lessen the impact of that guilty plea by arguing, in what amounts to a collateral attack on the judgment, that Payne was not represented by an attorney at the time of the plea, and that Payne had only entered the plea in order to receive the sentence of probation.

We reject this reasoning. There is no question in our minds that Payne did in fact plead guilty to the 1976 possession charge or that he made this plea of his free will. Therefore, we have no alternative but to find that the Board has proved by a preponderance of the evidence, as was required (see Board of Education v. Adelman (1981), 97 Ill. App. 3d 530, 532, 423 N.E.2d 254), that Payne did indeed possess a small quantity of marijuana in February 1976. It remains for our determination whether this fact alone constitutes a sufficient basis for Payne’s dismissal by the Board.

B.

No tenured school teacher may be removed from employment except for cause. (Ill. Rev. Stat. 1977, ch. 122, par. 34 — 85.) The School Code is generally vague as to what constitutes cause for removal, although it does provide that the Board may dismiss a teacher for “incompetency, cruelty, negligence, immorality or other sufficient cause and * * * whenever, in its opinion, the interests of the schools require it * * (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 122, par. 10 — 22.4.) The right to determine what constitutes sufficient cause lies in the first instance with the Board, with the best interests of the schools as the “guiding star.” (See Morelli v. Board of Education (1976), 42 Ill. App. 3d 722, 729, 356 N.E.2d 438; McLain v. Board of Education (1962), 36 Ill. App. 2d 143, 147, 183 N.E.2d 7; Robinson v. Community Unit School District No. 7 (1962), 35 Ill. App. 2d 325, 330-31, 182 N.E.2d 770.) “Cause” has been described as some substantial shortcoming which renders continuance in employment in some way detrimental to discipline and effectiveness of service; something which the law and sound public opinion recognizes as a good reason for the individual to no longer occupy his position. (Jepsen v. Board of Education (1958), 19 Ill. App. 2d 204, 207, 153 N.E.2d 417, appeal denied (1959), 15 Ill. 2d 613.) There must be present a logical nexus between the actions alleged as cause for dismissal and the individual’s fitness to perform as a teacher. See Board of Trustees v. Judge (1975), 50 Cal. App. 3d 920, 123 Cal. Rptr. 830.

We have found no Illinois cases addressing the question of whether a teacher’s possession of a small quantity of marijuana outside of the school environment is sufficient cause to warrant his dismissal. Thus, we are faced with a question of first impression. We note that the California courts have established a test to facilitate the determination of whether a logical nexus exists between a teacher’s alleged activity and his fitness to teach. In Morrison v. State Board of Education (1969), 1 Cal. 3d 214, 229, 461 P.2d 375, 386, 82 Cal. Rptr. 175, 186, the California Supreme Court set forth the following list of factors to be weighed in making this decision: (1) the likelihood of an adverse effect from the conduct upon students and other teachers, (2) the degree of adverse effect expected, (3) the type of teaching certificate held by the teacher, (4) the probability that the conduct will recur, (5) the proximity in time of the conduct to the commencement of dismissal proceedings, and (6) the presence or absence of any factors in mitigation. We will apply these factors to the evidence of this case to assist us in deciding whether Payne’s 1976 conduct constitutes cause for his dismissal.

There is evidence in this case that a teacher’s possession of even a small quantity of marijuana would, once it became a matter of general knowledge, have a major adverse impact upon that teacher’s students and fellow teachers. Dr. Nina Jones, who qualified as an expert by virtue of her 30 years service to the Board, testified to the Board’s perception of the role of a teacher in the Chicago school system. Dr. Jones stated that a teacher serves as the leader of the instructional program in his classroom, as a role model for his students who often emulate his behavior, and as a person who instills basic values of American society and good citizenship in his students. Dr. Jones further stated that publication of information that a teacher engaged in illegal conduct would have a deleterious effect on the school system as a whole, as well as on the particular school.

We are aware of the special position occupied by a teacher in our society. As a consequence of that elevated stature, a teacher’s actions are subject to much greater scrutiny than that given to the activities of the average person. We do not doubt that knowledge of a teacher’s involvement in illegalities such as possession of marijuana would have a major deleterious effect upon the school system and would greatly impede that individual’s ability to adequately fulfill his role as perceived by the Board. This conclusion is especially true where, as here, the teacher holds a certificate to educate children ages 10 to 13 who are, according to testimony in this case, very impressionable. We can only find that general awareness of possession of marijuana by a teacher in Payne’s position directly and adversely affects that individual’s ability to effectively perform as a teacher.

As well, the record shows that Payne’s conduct in 1976 was not an isolated occurrence. There is evidence that Payne also possessed marijuana as well as cocaine in January 1978. While we do not focus upon that incident in resolving this appeal, we find that it does demonstrate the likelihood that Payne’s illegal actions could recur.

Additionally, we note that the Board commenced informal proceedings against Payne upon the newspapers’ publication of the fact of Payne’s 1976 conduct in January 1978. Consequently, we do not find any attenuation of the impact of that action by the mere passage of a nearly two-year period between the initial occurrence and the general awareness of that incident. Further, we find an aggravating circumstance in this case which gives weight to the Board’s position. Payne testified that he was assigned to the “problem kids,” those children who have already shown a degree of disrespect for authority. It is beyond argument that Payne’s involvement with illegal drugs would hinder the ability of the schools to enlighten these children as to proper behavior in our society.

In sum, we believe that a clear nexus has been shown in this record between Payne’s conduct and his fitness to teach. We must conclude that Payne’s possession of marijuana, coupled with the circumstances in which he functioned, constitutes sufficient cause for the Board to remove Payne from his position as a teacher. We cannot accept Payne’s contention that his conduct was not unbecoming his status and position.

C.

Despite this conclusion, it remains necessary to determine whether the Board has also demonstrated that Payne’s conduct was irremediable before this court may affirm the circuit court’s decision. Payne asserts that the Board has not made this showing, and that the Board’s failure to give him the statutorily required warning rendered the circuit court’s decision erroneous regardless of the validity of the Board’s determination that there existed cause for Payne’s dismissal.

Where conduct which forms the basis of charges seeking dismissal is deemed remediable, the Board must give the teacher a written warning which informs him of the consequences of failing to take corrective measures. (Ill. Rev. Stat. 1977, ch. 122, par. 34 — 85.) Where no warning is given, the Board’s evidence must prove that the teacher’s conduct is irremediable. If the Board fails to meet this evidentiary burden, it is deprived of jurisdiction to terminate a teacher’s employment. (Morris v. Board of Education (1981), 96 Ill. App. 3d 405, 411-13, 421 N.E.2d 387.) The question of remediability is for the Board in the first instance, and its decision will not be disturbed absent a showing that it is arbitrary and capricious. (Morris.) Conduct is irremediable where damage results therefrom which could not have been corrected regardless of whether the teacher received an adequate timely warning. Morris; McCutcheon v. Board of Education (1981), 94 Ill. App. 3d 993, 998, 419 N.E.2d 451.

Application of simple logic to the facts of this case shows that Payne’s possession of marijuana in 1976 was irremediable conduct. The damage to the students, faculty, and school which flowed from that incident and which constituted cause for dismissal occurred immediately upon revelation of it. A warning to Payne could not have remedied this damage or in any way served to lessen its impact. Thus, the case is distinguishable from those cited by Payne, such as Allione v. Board of Education (1961), 29 Ill. App. 2d 261, 173 N.E.2d 13, where the charges involved conduct such as tardiness for work, lack of discipline of students, and the like. Here, no warning was required by the Board. Payne’s conduct in 1976 was clearly irremediable. The hearing officer erred in finding to the contrary.

For these reasons, we find that the circuit court correctly reversed the hearing officer’s decision and ordered Payne’s dismissal based upon his 1976 possession of marijuana. Consequently, it is unnecessary for us to address the Board’s remaining specifications against Payne which involved the 1978 drug charges, or the parties’ arguments in relation thereto.

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

Affirmed.

HARTMAN, P. J., and STAMOS, J„ concur.

       December 28,1978; January 23, March 1, and May 18,1979.

       Payne also presented the testimony of Rosemary Lear as part of his case. We do not find her testimony to be relevant to our disposition of the appeal and therefore do not recite it here.

       Payne also argues that section 34 — 84b of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 34 — 84b) precluded the Board from relying on the 1976 guilty plea in seeking his dismissal, since Payne received only probation for that offense. Section 34 — 84b lists specific grounds, involving sex or narcotics offenses, for which the Board may immediately suspend a teacher. An exception to this power is entry of a sentence of probation for a narcotics offense. Clearly, this provision was intended to be a “sword” for the Board rather than a “shield” for a teacher. Nothing in the exception to this “sword" limits the Board’s power to follow the standard dismissal procedures based upon acts which might also come within the ambit of this provision. Payne’s contrary argument is unconvincing.

        Morrison also suggests that examination should be made of the individual’s motives in engaging in the conduct and of the impact a dismissal would have upon the person’s constitutional rights. We do not find it beneficial to discuss these factors in light of the circumstances of this case.

       We do note that the record shows in mitigation that several witnesses considered Payne a disciplinarian and a good teacher. This factor does not, in our opinion, outweigh the negative evidence concerning the impact of Payne’s conduct upon his capacity to effectively function as a teacher.

       We note that the central case relied upon by Payne in making this argument, Gilliland v. Board of Education (1976), 35 Ill. App. 3d 861, 343 N.E.2d 704, was reversed by the supreme court, which held exactly the opposite of Payne’s present position. 67 Ill. 2d 143, 365 N.E.2d 322.


author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY GUSTOWSKI, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1935
    Opinion filed December 22, 1981.
    James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Christine A. Campbell, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was charged in a two-count complaint with possession of controlled substances, namely Phencyclidine (sometimes hereinafter PCP) and Valium. (Ill. Rev. Stat. 1977, ch. 56M, par. 1402(b).) On the State’s motion prior to trial, the count pertaining to possession of Valium was nolle prossed. A jury found defendant guilty under the remaining count, and he was sentenced to serve 2 years in the penitentiary. Defendant appeals.

The issues presented for our consideration on appeal are whether; (1) a question asked on cross-examination of defendant as to whether he was talking with a friend near the scene of the arrest about “angel dust” denied him a fair trial; (2) the prosecutor in having asked defendant if he had ever seen “tinfoil packets like this before,” and had “never prepared tinfoil packets in that manner” denied him a fair trial; (3) an adequate chain of possession was established connecting defendant to the PCP; and (4) defendant was proved guilty of possession of a controlled substance beyond a reasonable doubt.

At trial, the following evidence was presented for the State. Chicago Police Officer Paul Sarpalius testified that at about 8:40 p.m. on August 24, 1979, he and his partner Officer Daniel Lukensmeyer saw defendant with five other men in the 4700 block of S. Winchester Avenue. Sarpalius knew defendant by name. As the officers approached defendant the other men dispersed and defendant turned to face the officers. Defendant then dropped a plastic bag to the ground. The bag contained blue, pink and white pills and “some” tinfoil packets. The police report recorded that the bag dropped from defendant’s left hand, although at trial Sarpalius stated that it dropped from his right hand.

After he picked up the plastic bag and examined its contents, he screamed to his partner, “I have got the dope, grab him.” He placed the bag in his shirt pocket. He also searched defendant, but found nothing. When he arrived at the police station, he reopened the bag and inventoried its contents. There were 32 pills in different colors and six tinfoil packets containing white powder. These objects were placed in a narcotics envelope on which he wrote his initials and star number. The tinfoil packets were not marked. After the envelope was sealed, it was put in a safe at the police station. The testimony of Officer Daniel Lukensmeyer substantially corroborated the testimony of Sarpalius.

Linda O’Bannon, chemist for the Chicago Police Department, testified that on August 29, 1979, she received a sealed narcotics envelope from her supervisor for chemical analysis. She subjected the white powder in one of the tinfoil packets to a variety of tests involving the use of cobalt thiocyanate, and ultraviolet and infrared light. On the basis of this analysis, she concluded that the powder contained phencyclidine. On cross-examination, defense challenges to her status as an expert were overruled.

Defendant testified that on August 24,1979, at about 9:30 p.m. he saw Lukensmeyer and Sarpalius pull up in a squad car. From a distance of 10 to 15 feet Sarpalius said, “Stanley, come here, I want to talk to you.” The entire block was full of cans, paper, candy wrappers and cigarette butts. He did not physically possess or drop a plastic bag, pills or tinfoil packets. He did not see any other person drop these objects. He saw the bag containing the pills for the first time at the police station but did not see the six packets of tinfoil until a “little while ago when my attorney put them in front of me.”

Other evidence will be considered in the body of the opinion.

I

Defendant argues that prosecutorial misconduct during cross-examination denied him a fair trial. He contends that the prosecutor erred when he asked defendant: “Q. 0 0 0 Were you and your friend talking about angel dust in front of that location?” The trial court immediately sustained defense counsel’s objection. Defendant maintains that this question referred to matters outside the record, because, prior to this question, nobody had suggested that “angel dust” was found. In addition, he contends that the use of the term “angel dust” was inflammatory and implied that he was a seller of narcotics. Defendant also assigns error to the following question by the prosecutor: “Q. Well, Mr. defendant, have you ever seen tinfoil packets like this before?” Also, “Q. You have never prepared tinfoil packets in that manner, have you?” Defense objections were sustained promptly to each question. Defendant urges that these questions implied that he was engaged in drug trafficking.

The State responds that any prosecutorial misconduct was harmless in view of the sustained objections and the “overwhelming” weight of the evidence establishing defendant’s guilt. The State observes that the reference to “angel dust” was a single, isolated remark. Also, the State denies that the other remarks of the prosecutor implied that defendant was involved in other crimes. It is apparent, however, that such questions were improper: they all exceeded the scope of direct examination; and, the last two implied that defendant previously possessed controlled substances, similar to PCP. Any harm to defendant was diminished by the immediate objections of counsel, which were sustained by the court in timely fashion. Although the defense did not request the trial court to instruct the jury to disregard these questions immediately after the objections were sustained, an instruction to the jury properly directed them to disregard such questions. Under these circumstances, any prejudice which might otherwise have affected defendant by virtue of the unacceptable questions was dissipated. People v. Farmer (1963), 28 Ill. 2d 521, 524, 192 N.E.2d 916; People v. White (1980), 86 Ill. App. 3d 19, 28, 30, 407 N.E.2d 572; People v. Barnett (1975), 34 Ill. App. 3d 174, 178, 340 N.E.2d 116.

II

Defendant next argues that the State failed to demonstrate a positive link between defendant and the contraband, attaching great significance to police failure to mark the tinfoil packets and Officer Sarpalius being unable to state for a fact whether the powder or packets had been altered in any fashion.

The record is to the contrary. Officer Sarpalius testified that he picked up the plastic bag he saw dropped by defendant. Sarpalius carried the plastic bag in his pocket to the police station where he inventoried its contents observing six tinfoil packets containing white powder. The contents of the bag were placed in a narcotics envelope. After sealing and marking the envelope with his initials and star number, he placed the envelope in a safe at the station. He identified State Exhibit No. 3 as the same narcotics envelope he filled out on the day of the incident and the tinfoil packets as the same ones which were inventoried.

O’Bannon testified that she received State Exhibit No. 3 from her supervisor in a sealed condition. She cut open the envelope and inspected the contents to verify that they matched the inventory description, which they did. She tested the contents and concluded that the substance contained phencyclidine. After placing the contents back into the original narcotics envelope, she initialed and resealed the envelope.

The State need not exclude every possibility that the evidence may have been tampered with, but rather that there is a reasonable probability that the evidence has not been changed or substituted. (People v. Grayson (1980), 89 Ill. App. 3d 766, 770, 411 N.E.2d 1177; People v. Madden (1978), 57 Ill. App. 3d 107, 111, 372 N.E.2d 851.) A sufficient chain of possession manifestly was established connecting the substance identified as phencyclidine to defendant here, and that evidence was properly received.

III

The final argument articulated by the defense is that defendant was not proved guilty beyond a reasonable doubt because the officers’ testimony lacked credibility.

Defendant correctly observes that police testimony at trial did vary with their prior testimony at the preliminary hearing. At that hearing, Officer Sarpalius testified that other people were 10 to 15 feet south of defendant, whereas at trial the people were described as being 3 house-lengths or 75 feet south of defendant when the bag was dropped. At the preliminary hearing, Sarpalius testified that defendant was 35 feet away from him the moment the bag was dropped; in contrast, at trial his testimony concerning this distance varied from 20 to 35 feet. At the pretrial hearing on defendant’s motion to suppress, Officer Lukensmeyer testified that defendant was 30 to 35 feet away at the instant the package was dropped; at trial, however, defendant was 15 to 20 feet away when defendant tinned around, looked in his direction, and dropped the package. Although Lukensmeyer’s police report said defendant released the bag with his right hand, the police officers at trial claimed defendant’s left hand was the culprit.

Notwithstanding these variations in testimony, the evidence was not so improbable, unsatisfactory or inconclusive as to justify setting aside defendant’s conviction. (People v. Coulson (1958), 13 Ill. 2d 290, 296, 149 N.E.2d 96; People v. Platter (1980), 89 Ill. App. 3d 803, 817, 412 N.E.2d 181; People v. Lindsey (1979), 73 Ill. App. 3d 436, 447, 392 N.E.2d 278.) It is the jury’s function to resolve questions involving the credibility of witnesses, since it has the opportunity to observe witnesses’ demeanor while they testify. (People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331.)

The discrepancies were observed by the jury, which reasonably could have found them immaterial in view of the totality of circumstances surrounding the incident.

For the reasons set forth above, the jury’s verdict cannot be disturbed. Defendant’s conviction will be affirmed accordingly.

Affirmed.

DOWNING and PERLIN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAMAR GARNER, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2689
    Opinion filed December 22, 1981.
    Steven Clark, of Chicago (Gordon H. Berry, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and Gregory G. Thiess, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Following a bench trial defendant was convicted of murder and armed violence based thereon (Ill. Rev. Stat. 1979, eh. 38, pars. 9 — 1 and 33A — 2). He was sentenced to a term of 25 years’ incarceration for murder. On appeal defendant contends that he was not proved guilty beyond a reasonable doubt because the State’s witnesses were demonstrably evasive in their testimony. The State requests that defendant’s conviction for armed violence, which was vacated, be reinstated and the cause remanded for imposition of sentence.

The State’s witnesses consisted of deceased’s son Clarence Cox, and two women who witnessed the shooting from the front window of a second-floor apartment in the building where deceased lived. Clarence Cox had gone to visit his father at his apartment on September 12, 1979. About 10 p.m. they went to a liquor store, bought a quart of beer and cigarettes and returned to deceased’s building where they sat on the front steps. The beer was in a bag on the steps. At this point defendant, who lived a short distance away, approached the front gate of the deceased’s building. Defendant told deceased that he did not like deceased’s slapping a woman, and defendant entered the gate. An argument between the men ensued during which time deceased called defendant an uncomplimentary name and told defendant that he could not enter the gate. Defendant then pulled a pistol and repeatedly shot the unarmed deceased.

The police arrived and found deceased at his building. When police proceeded to deceased’s apartment, they found a fully loaded .38-caliber revolver by the stairs. Defendant was arrested, and a .22-caliber 9-shot revolver with eight expended shells in it was recovered from defendant. Additional ammunition for both weapons was also seized.

Defendant and his wife testified in order to establish that his actions were justified. In substance their testimony showed that on the day of the shooting deceased wanted to sell defendant the .38-caliber handgun previously mentioned. An argument ensued between defendant and deceased, and defendant’s wife was struck by deceased. Defendant then returned the loaded .38-caliber handgun to deceased.

At approximately 10 p.m. on September 12, 1979, the defendant claimed that he was standing by the door to his apartment. He was in the company of his wife and they were drinking. The defendant decided that he would go to a liquor store, but in doing so he had to walk by the nearby building where the deceased lived. Defendant carried his .22-caliber revolver because he had $90 in cash in his pocket. At that time the defendant saw the deceased and his son. Deceased began to curse the defendant, and an argument ensued during which time the deceased called defendant a “slick sucker.”

Defendant explained that after the argument ensued with the deceased, the defendant began to leave. However, the deceased told defendant that he was going to kill him, and he reached down on the steps of the building and picked up a bag which the defendant recognized as the container in which he had returned the loaded .38-caliber revolver to the deceased earlier that day. The defendant explained that he then backed up and told the deceased not to do anything, but the deceased reiterated that he was going to kill defendant and deceased began to tear open the bag. Defendant then pulled his revolver and fired it at the ground in order to stop the deceased. However, the deceased continued to obtain the pistol from the bag, which caused the defendant to fire at the deceased. The deceased dropped the gun, backed up and stated, “[Y]ou shot me.” The defendant then walked away and went back to his house after picking up the .38-caliber gun. The defendant dropped the .38-caliber revolver near his apartment, but he retained the .22-caliber revolver until arrested.

In summarizing the evidence after closing arguments the trial court indicated that it had concluded that the altercation with the defendant’s wife and deceased had taken place. However, the court indicated that the State’s witnesses had testified that they had not heard anything mentioned about an argument concerning a gun when the defendant shot the deceased. Nor had the State’s witnesses seen the deceased do anything that even suggested deceased’s involvement with a weapon at the time of the shooting.

Defendant now contends that his conviction should be reversed because the State’s occurrence eyewitnesses gave evasive testimony which was too unreliable to sustain a conviction. Defendant maintains that among other things the three eyewitnesses seemed bound and determined not to reveal anything favorable to the defendant or anything unfavorable about either themselves or the deceased. Defendant notes that the deceased’s son was currently on probation for attempted rape and that he had used an alias on prior occasions. Defendant questions why the two women, who testified for the State, would have been seated at the front window just at the time that the altercation occurred and would have been interested in the activities of the deceased and his son. The defendant also notes that there were some inconsistencies in the testimony concerning where the brown bag was which contained a bottle of beer. Deceased’s son indicated that he had thrown the bag away after the shooting, and there was also testimony that the bag was either on the steps leading to the building or was in the deceased’s son’s hands.

The points, which defendant raises concerning the discrepancies of the witnesses’ testimony, are minor in nature and not unusual. (People v. Jordan (1967), 38 Ill. 2d 83, 88, 230 N.E.2d 161.) The determination of the witnesses’ credibility at a bench trial is to be determined by the trial court. (People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733.) This case presents nothing more than an evaluation of that credibility, and we cannot say that the trial court erred in its determination.

Relying on People v. Feierabend (1981), 98 Ill. App. 3d 731, 742, 424 N.E.2d 765, and our prior decisions cited therein, the State requests that defendant’s conviction for armed violence based on use of the gun during the murder be reinstated and a sentence be imposed by the trial court. As noted, the trial court had vacated the conviction for armed violence.

In Feierabend we upheld multiple convictions for murder and armed violence based thereon. We reasoned that the offense of murder could be committed without the use of a weapon proscribed by the armed violence statute, and the use of a weapon therefore also permitted a conviction for armed violence. To the same effect are our decisions of People v. Lynom (1981), 97 Ill. App. 3d 1113, 423 N.E.2d 1281, and People v. Best (1981), 97 Ill. App. 3d 1083, 424 N.E.2d 29.

In order to remand for the entry of judgment for armed violence we would have to apply the holding of People v. Scott (1977), 69 Ill. 2d 85, 89, 370 N.E.2d 540. Scott held that, where a sentence is not imposed upon one of the convictions, the cause should be remanded to impose sentence in order to render that judgment final. In the present case, however, the conviction for armed violence was vacated. Thus there is no incomplete judgment pending before us requiring that the matter be remanded for the imposition of a sentence. (Cf. People v. Riley (1980), 89 Ill. App. 3d 438, 443-44, 411 N.E.2d 1039.) Further, when the trial court vacated the armed violence conviction, the State did not object. (See also People v. Ditto (1981), 98 Ill. App. 3d 36, 39, 424 N.E.2d 3.) We therefore reject the State’s request.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P. J., and PERLIN, J., concur.

       The supreme court has recently granted leave to appeal in a case which may present the issue on whether multiple convictions for armed violence and its underlying felony are proper. People v. Mormon (1981), 97 Ill. App. 3d 556, 422 N.E.2d 1065.

       The supreme court has recently granted leave to appeal from a decision of the Second District Appellate Court pursuant to Supreme Court Rule 23 (73 Ill. 2d R. 23) which may present the issue relating to the divergence of appellate court opinions as to the permissible scope of People v. Scott when the defendant appeals. People v. Dixon (1981), 96 Ill. App. 3d 1201.


text:
    VIRGINIA RANDALL et al., Plaintiffs-Appellants, v. RUBIN NAUM, Defendant-Appellee.
    First District (2nd Division)
    No. 80-2990
    Opinion filed December 22, 1981.

      Walter M. Ketchum, Ltd., of Chicago (John C. Griffin, of counsel), for appellants.
    Victor J. Piekarski and Glen E. Amundsen, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff appeals from a jury verdict rendered for defendant in a suit seeking damages for plaintiff’s injuries incurred when her automobile was struck by defendant’s car. At the close of all the evidence on liability, the trial court held that defendant was negligent as a matter of law, but that the issue of contributory negligence was a question of fact for the jury. The issues raised on appeal are whether: (1) the verdict was against the manifest weight of the evidence; (2) the trial court properly denied plaintiff’s motion for a directed verdict; and (3) defense counsel’s comment in closing argument denied plaintiff a fair trial. For the reasons set forth below, we affirm.

At trial, plaintiff, Virginia Randall, testified that at about 5:30 p.m. on October 18, 1974, she was driving in a southerly direction on the Stevenson Expressway with her two daughters as passengers. Her car occupied the left lane of three traffic lanes. She noticed that traffic was congested in all three lanes and that a traffic bottleneck had developed. She stopped her vehicle for approximately one minute. In her rearview mirror, she observed a car approaching from behind, the driver of which, defendant, was looking down. The front end of defendant’s car collided with the rear end of hers, propelling it 20 to 30 feet forward. Her car did not touch the car in front of her, because traffic had begun to move again. She felt a sharp pain in her back, thumbs, neck and elbow and testified as to her injuries and medical treatment, which is not at issue in this appeal.

Defendant Rubin Naum was called by plaintiff as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). He testified that on the day and at the time of the accident, traffic was very heavy in all three southbound lanes and proceeded at a “stop and go” pace, with traffic moving “bumper to bumper.” Plaintiff’s car had been traveling in front of his at about 30 to 35 miles per hour when it suddenly came to “a very fast stop,” too quickly for him to avoid hitting it. It was difficult to determine how long Randall’s car had been stopped before the accident; his estimate of this time interval ranged from a “fraction of a second” to a “few seconds.”

Plaintiff contends that she is entitled to a new trial on the ground that the jury’s verdict was against the overwhelming weight of the evidence. We disagree. Naum testified that Randall’s car had been traveling at about 30 to 35 miles per hour when it made an abrupt stop the instant before the accident. Although this testimony conflicts with Randall’s, the responsibility of weighing the credibility of witnesses rests with the jury which directly observes their demeanor while testifying. Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.

The jury could have justifiably found Naum’s version more credible than Randall’s testimony that she had been stopped for approximately one minute just before the accident. Her testimony would have required the jury to believe that at the moment plaintiff stopped her car, defendant was almost one-half mile behind, assuming, as the jury could have based on the evidence, that defendant was traveling at about 30 to 35 miles per hour immediately before the accident. The jury could have considered it unlikely that cars would be approximately one-half mile apart during a congested rush hour on the Stevenson Expressway, with traffic proceeding at a stop and go pace, traveling bumper to bumper. Although Naum’s estimate of how long Randall’s car had been stopped before the collision varied from a “fraction” of a second to a “few” seconds, such a discrepancy does not undermine his credibility as a matter of law; the jury could have reasonably believed his statement, consistent throughout the trial, that plaintiff’s car came to an abrupt, sudden stop the moment before the accident and that the suddenness of the stop was unjustified in view of the surrounding traffic conditions. Morse v. Johnson (1980), 81 Ill. App. 3d 552, 555, 401 N.E.2d 654; Ryon v. Javior (1979), 69 Ill. App. 3d 946, 387 N.E.2d 936; Zerbenski v. Tagliarino (1978), 67 Ill. App. 3d 166, 384 N.E.2d 753.

Plaintiff contends that the trial court erred in denying her motion for a directed verdict on the issue of contributory negligence. For the reasons set forth above, the jury’s verdict was sufficiently supported by the evidence; it follows that the denial of plaintiff’s motion was entirely proper. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

Finally, plaintiff contends that defendant’s closing argument was inflammatory and unreasonable and that the resulting prejudice to plaintiff necessitates a new trial. Error is assigned to defense counsel’s comment in closing argument: “Certainly you’ve heard nothing here today to indicate a case of $30,000. Now you know why we had to try it.” Whereas defendant’s comment was improper insofar as it was not based entirely on the evidence adduced at trial (Lasswell v. Toledo, Peoria & Western R.R. Co. (1976), 41 Ill. App. 3d 568, 574-75, 354 N.E.2d 25), it was not so prejudicial as to require a new trial. Further, the trial court sustained plaintiff’s objection to the comment and promptly admonished the jury to disregard it. No other reference was made thereto. The jury later was instructed to ignore any statement or remark which had no basis in the evidence. Finally, the comment pertained primarily to the extent of plaintiff’s damages, an issue which the jury did not reach. In view of the foregoing, we cannot conclude that defendant’s remark deprived plaintiff of a fair trial. Hahn v. Norfolk & Western Ry. Co. (1978), 59 Ill. App. 3d 904, 910, 375 N.E.2d 914; Lopez v. Galeener (1975), 34 Ill. App. 3d 815, 821, 341 N.E.2d 59.

For the foregoing reasons, the judgment of the circuit court must be affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.


author: PRESIDING JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAROLD LESTER, Defendant-Appellant.
    First District (3rd Division)
    No. 80-37
    Opinion filed December 23, 1981.

      James J. Doherty, Public Defender, of Chicago (Thomas E. Verdun and Suzanne M. Xinos, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Iris E. Sholder, and Deborah M. Dooling, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Following a bench trial, defendant, Harold Lester, was found guilty of voluntary manslaughter and sentenced to 36 months’ probation. On appeal defendant argues that (1) the court erred in failing to suppress statements made by defendant, (2) his claim of self-defense was not disproved beyond a reasonable doubt, (3) error occurred when the State introduced evidence of the victim’s reputation as a quiet and peaceful man in its case-in-chief, and (4) error occurred when the State introduced evidence impeaching defendant’s good character before defendant put on evidence of his good character. We affirm.

On the night of May 27, 1978, defendant and the victim, Fondora Garcia, were “bumming money” and using it to purchase wine, which they drank. At approximately 1:30 a.m. on May 28, they purchased a bottle of wine at a liquor store at 4017 N. Sheridan in Chicago. At approximately 2 a.m., a police officer observed the victim leaning against a building in the vicinity of 4019 N. Sheridan. The victim was pouring wine in a cup. The officer had seen the victim under the influence of alcohol hundreds of times before, and he stopped his car and approached the victim. The victim seemed happy, semi-conscious and highly intoxicated. In response to the officer’s inquiry, the victim said he did not want to go to jail. The officer frisked the victim and did not find any weapons. He then poured the wine on the sidewalk and told the victim to go home. The officer noted that defendant was sitting in a wheelchair to the right of the victim, and that both of defendant’s legs had been amputated. The officer did not search defendant and could not say whether defendant was under the influence of alcohol at that time.

Around 2:30 a.m., two other police officers observed the victim lying against a building at approximately 4019 N. Sheridan. When they attempted to awaken the victim, the victim’s coat fell open and one of the officers saw what appeared to be blood. As the officers attempted to revive the victim, he stopped breathing. No weapon was found in the vicinity of the victim. The two officers who found the victim arrested defendant between 5-5:30 a.m. following a call from the dispatcher that someone was being held for the police at the gas station at Sheridan and Irving Park Roads. Defendant was discovered behind the gas station.

According to statements given by defendant at the police station, after the police poured out the wine that he and the victim were drinking, the victim became angry with defendant for drinking too much wine. The victim pulled a knife from his pocket and came at defendant. Defendant gave conflicting statements as to what happened next. At first he said that he grabbed the victim’s wrist, bent the knife back towards the victim’s chest and struck him twice. Later, he said that he removed the knife from the victim’s hand and then stabbed him twice. He fled to a nearby gas station because he became frightened. He threw the knife down an alley near the gas station and then fell asleep. He was subsequently awakened by a woman and three men. The woman screamed, “You killed Junior,” and the men held him at the gas station while the woman called the police.

At approximately 6:35 p.m. on May 28, a court reporter took defendant’s statement. The assistant State’s Attorney declined to place charges against defendant at that time. However, defendant was rearrested on May 31.

We first address defendant’s argument that the statements he made following his arrest on May 28 should have been suppressed because they were obtained by coercion. At the hearing on the motion to suppress, defendant testified that he was suffering the effects of a two-week drinking binge and was vomiting and having diarrhea attacks. An investigator told defendant that if he would make a statement that he stabbed the victim in self-defense while they struggled over the knife, he would be released. The investigator also informed defendant that a prostitute had witnessed the stabbing and that he had other witnesses as well. In a later conversation between defendant and the investigator, which took place after another officer had asked defendant about the lack of blood on his clothes, the investigator told defendant to say that he took off his bloodied T-shirt and threw it in a garbage can. He further told defendant to say that he had thrown the knife down the alley. According to defendant, no one else was present when these conversations took place.

Defendant also testified that he was questioned by two assistant State’s Attorneys at 1:30 p.m. and 4:45 p.m. He gave them a statement at 6:30 p.m., which was recorded by a court reporter. Defendant initialed each page of the statement and signed it. He was then released. During the more than 13 hours that he was in custody, he was not given any food.

The investigator who allegedly told defendant to plead self-defense also testified at the hearing on the motion to suppress. According to his testimony, he gave defendant Miranda warnings before each interview he had with defendant. At no time did defendant request an attorney. At the 9 a.m. interview, which lasted approximately 20 minutes, defendant denied committing the stabbing. At 11 a.m., the investigator again interviewed defendant, and defendant gave a statement about his involvement in the victim’s death.

According to the investigator, defendant did not appear intoxicated or hungover, nor did he say he was not feeling well. He asked to go to the washroom, but did not vomit. Further, defendant was given water and cigarettes when they were requested. Sandwiches were placed on the table next to defendant, who was not handcuffed, but they apparently went untouched.

The two assistant State’s Attorneys who interviewed defendant at approximately 1:30 p.m., 4:30 p.m. and 6:30 p.m. testified that defendant was given Miranda warnings at each interview and that defendant understood them. At the 4:30 p.m. interview, one of the assistant State’s Attorneys asked defendant how he had been treated by officers at the police station, and he responded that he had been treated “okay.” Charges against defendant were not filed on May 28 because in the third interview with defendant the blood-stained T-shirt was first mentioned, and a different version of the specific disposition of the weapon was given.

The test for the admission of a confession is whether it was made freely, voluntarily and without compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time he confessed. In determining whether a statement was voluntarily given, the totality of the circumstances must be considered. (People v. Boyd (1980), 88 Ill. App. 3d 825, 848, 410 N.E.2d 931, 948.) Factors to be considered include the giving of Miranda warnings, the time elapsed between the arrest and the confession, the presence of any intervening circumstances, and the flagrancy and purpose of the official misconduct. (People v. Lucas (1980), 88 Ill. App. 3d 942, 949, 410 N.E.2d 1040, 1045.) The State has the burden of proving that a confession was voluntarily given. Ill. Rev. Stat. 1979, ch. 38, par. 114—11(d).

In the present case, defendant did not present any evidence contradicting the testimony of the State’s witnesses that he was given Miranda warnings each time he was questioned or showing that he lacked the capacity to appreciate those warnings. Defendant was in custody for slightly more than 13 hours, and he was questioned only intermittently and generally for short periods of time. He was not handcuffed. The police investigator denied making the statements attributed to him by defendant. His testimony also contradicted that given by defendant in regard to defendant’s physical well-being while he was at the police station.

The trial court, in denying defendant’s motion to suppress statements, stated that the question involved was essentially one of credibility. The court stated that after observing defendant and the investigator testify, it believed that defendant did not testify truthfully and that the investigator testified truthfully in all material respects. Under the circumstances of this case, we believe that the credibility of these witnesses and the weight to be given their testimony was properly determined by the trial court. (People v. Zamp (1980), 84 Ill. App. 3d 688, 694, 406 N.E.2d 96, 101.) We believe that the State proved by a preponderance of the evidence (see People v. Avery (1980), 88 Ill. App. 3d 771, 775, 410 N.E.2d 1093, 1097) that defendant’s statements were the product of his free and rational choice (see Greenwald v. Wisconsin (1968), 390 U.S. 519, 521, 20 L. Ed. 2d 77, 79, 88 S. Ct. 1152, 1153).

Defendant next argues that his conviction should be reversed because the State did not disprove beyond a reasonable doubt his claim of self-defense. Defendant did not testify at trial nor did he present any evidence. On appeal defendant points to statements made by him on May 28 following his arrest which were introduced into evidence by the State. According to these statements, the victim became angry with defendant and accused him of drinking too much wine. The victim pulled a knife from his sport coat and advanced on defendant. Defendant grabbed the victim by the wrist with one hand and took the knife from the victim with his other hand. He then stabbed the victim twice.

Self-defense is an affirmative defense, and once it has been raised, the State has the burden of disproving it beyond a reasonable doubt. (People v. Ortiz (1978), 65 Ill. App. 3d 525, 530, 382 N.E.2d 303, 306.) Where a defendant’s out of court statement is the only direct evidence of what occurred at the time of the killing, the trier of fact is not required to believe the defendant’s version of what transpired even if it is the only account given. (People v. Liddell (1975), 32 Ill. App. 3d 828, 830, 336 N.E.2d 815, 817.) In weighing the defendant’s version of an incident, the trier of fact should consider the probability or improbability of the defendant’s account, the circumstances surrounding the killing and the relevant testimony of other witnesses. (People v. Walden (1976), 43 Ill. App. 3d 744, 749, 357 N.E.2d 232, 236; People v. Towers (1974), 17 Ill. App. 3d 467, 474, 308 N.E.2d 223, 227-28.) There need not be actual rebuttal of the defendant’s statements, but only a sufficient showing of circumstances from which defendant’s guilt might be concluded by probable deduction. Liddell, 32 Ill. App. 3d 828, 830, 336 N.E.2d 815, 817.

Here, the testimony presented by the State’s witnesses shows that at approximately 2 a.m. on May 28, the victim was searched by the police. The victim’s sport coat was included in the search, and no weapon was found. Although it is not necessary for the victim to have actually possessed or used a deadly weapon to justify a killing in self-defense (People v. Brumbeloe (1968), 97 Ill. App. 2d 370, 377, 240 N.E.2d 150, 154), the absence of a weapon is a factor which may be considered by the trier of fact.

In addition, the State’s witnesses testified that defendant gave conflicting accounts of the victim’s death. Defendant at first denied killing the victim. He then said that when the victim advanced upon him with his knife drawn he grabbed the victim by the wrist, turned the victim’s hand back toward the victim’s chest and stabbed him twice. When one of the assistant State’s Attorneys told defendant that his description of the event did not make sense, defendant then said that he took the knife from the victim and then stabbed him. The court could have considered these conflicting versions in determining the probability of defendant’s claim of self-defense.

Finally, the victim was found by two police officers at the same location where shortly before another officer had seen defendant and the victim together and had searched the victim. Defendant was no longer there. He was found around 5 a.m. behind a nearby gas station. According to defendant’s statements, he fled there after stabbing the victim because he became frightened. The court, however, could have viewed defendant’s flight as evidence of his consciousness of guilt which tended to refute defendant’s theory of self-defense. See People v. Price (1979), 79 Ill. App. 3d 1112, 1118, 398 N.E.2d 1158, 1161; People v. Seiber (1979), 76 Ill. App. 3d 9, 13-14, 394 N.E.2d 1044, 1048.

In a bench trial, it is the province of the court to determine the credibility of the witnesses and the weight to be accorded the evidence presented, and the court’s determination will not be disturbed upon review unless it is palpably erroneous. (People v. Walden (1976), 43 Ill. App. 3d 744, 749, 357 N.E.2d 232, 236.) The evidence presented here regarding the circumstances surrounding the victim’s death was clearly sufficient to support the trial court’s finding that defendant was not acting in self-defense when he stabbed the victim.

Defendant’s two remaining arguments concern related issues, and therefore, we address them simultaneously. According to defendant, error occurred when the State was permitted to introduce evidence of the victim’s reputation as a quiet and peaceful man before defendant attacked the victim’s reputation. Similarly, defendant contends that error also occurred when the State presented evidence impeaching his good character before defendant introduced evidence of his good character.

Defendant’s arguments are premised on the principles that (1) the State may not present evidence of the victim’s character as a quiet and peaceful man unless the defendant has first offered evidence of the victim’s character as a turbulent and quarrelsome man, even where the issue of self-defense has been interposed (Kelly v. People (1907), 229 Ill. 81, 89, 82 N.E. 198, 201), and (2) a defendant’s character is presumed to be good, and no evidence impeaching his character is admissible until he has introduced evidence of his good character (People v. Haas (1920), 293 Ill. 274, 276-77, 127 N.E. 740, 741). Defendant contends that these principles were not followed when the prosecutor, during the State’s case-in-chief, was permitted to question two police officers regarding their prior arrests and searches of the victim, and when the prosecutor questioned one of these officers regarding his prior contacts with and searches of defendant. The testimony of the two officers established that they had searched the victim on numerous occasions and never found a weapon. Further, the testimony of one of these officers established that he had previously searched defendant and had seen weapons in defendant’s possession.

When the State first began questioning one of the officers regarding his prior arrests of the victim, defendant objected. The court stated, “I will see where he is going, you can make a motion to strike if he doesn’t tie it up.” Similarly, when the defendant objected to questions asked of the other officer regarding his prior contacts with defendant, the court again overruled the objection subject to a motion to strike “if it was not tied up.” Since no motion to strike any of this testimony was ever made, we consider the objections waived. Moreover, in regard to the testimony concerning the prior searches of the victim, the record reveals that defendant elicited this same information on cross-examination of one of the officers. Defendant’s own elicitation of this testimony precludes him from asserting on appeal that the testimony should not have been allowed. See People v. Pickens (1978), 63 Ill. App. 3d 857, 861, 380 N.E.2d 868, 871; People v. Jenkins (1974), 20 Ill. App. 3d 727, 734, 315 N.E.2d 269, 274-75.

Finally, since this case was a bench trial, it is presumed that the trial judge considered only competent evidence in reaching his decision (Pickens, 63 Ill. App. 3d 857, 861-62, 380 N.E.2d 868, 871) and that he applied the proper standard in determining defendant’s guilt or innocence. (People v. Cheung (1980), 83 Ill. App. 3d 1048, 1052-53, 404 N.E.2d 558, 562.) This presumption is overcome only where the record shows that the court relied on improper evidence. (People v. White (1980), 84 Ill. App. 3d 1044, 1049, 406 N.E.2d 7, 11.) We do not believe that the record shows that the court improperly relied on the challenged testimony of the officers. Moreover, if the court did improperly rely on this testimony, we would not reverse defendant’s conviction, because we conclude that the outcome of the trial would have been the same. See Cheung, 83 Ill. App. 3d 1048, 1051, 404 N.E.2d 558, 561; People v. Rose (1979), 77 Ill. App. 3d 330, 337, 395 N.E.2d 1081, 1087.

Accordingly, the judgment is affirmed.

Affirmed.

McGILLICUDDY and WHITE, JJ., concur.