text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS BERNARD JACKSON, Defendant-Appellant.
    Fourth District
    No. 4—84—0274
    Opinion filed February 7, 1985.
    Rehearing denied March 8, 1985.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Conviction: residential burglary.

Sentence: maximum term of 15 years.

We affirm.

Since Jackson argues he was not proved guilty beyond a reasonable doubt, a fairly detailed recitation of the evidentiary facts is required.

I. THE FACTS

Carol Madison testified at trial that she was the victim of a home burglary. She and her two young children lived in a home at 302 West Vermont in Urbana. On the west side of the home there is a fence approximately five feet tall which extends along the length of her yard as far as the front sidewalk. Also to the west of the house is a large lot with several trees. Carle Drive abuts the lot to the west. Across Carle Drive is the residence of Mrs. Bland Pelmore, Madison’s nearest neighbor to the west.

Madison left her home on August 29, 1983, at approximately 7:45 a.m. She locked the front and back doors behind her. She left her two children behind, but they left for school at approximately 7:55 a.m. Madison returned home at approximately 5:30 p.m. that evening and discovered that her television and microwave oven were gone. Both had been in the house that morning. She discovered that an exterior bathroom window screen had been slit open, and the back door to the house left ajar. The interior bathroom window had been raised when Madison left for work. She testified that she had given no one permission to enter the house or remove anything from it.

Two days before the crime, two black males who claimed to be Jehovah’s Witnesses came to Madison’s home. They approached her house on foot. By the time she got to the door of her house, the two men were in the process of leaving. They were at a distance such that she could not judge their height or weight. One of the men, however, noticed that Madison had opened the door and asked her if she would be interested in purchasing some literature from the Jehovah’s Witnesses. She declined the offer, and the two men then left the area.

Mrs. Bland Pelmore, Madison’s nearest neighbor to the west, testified at trial. She estimated that the two houses were approximately 200 feet apart. On August 29, 1983, she was home, talking on the phone to her husband. She observed a black male going toward the back of the victim’s home. She noticed that he was wearing an orange cap. She also noticed that the man was approximately a head taller than the fence between the homes, which she believed to be about five feet high.

Pelmore noticed a car leaving Madison’s home about five minutes later. She had noticed the car backed up in the driveway, with the front of the car facing Vermont Street at the front of Madison’s home. The car proceeded west on Vermont Street. She described the car as an older make, large, medium blue vehicle. The last three digits of the license plate were 137. During her testimony, Pelmore stated that she was nearsighted, and that she did not have her glasses on during this time. She further testified that while she could see the front half of Madison’s home and the driveway, she could not see all the way to the ground because of the fence between their houses and she could see no part of the back yard or garage. She further testified that the lot separating her home from Madison’s bore several large trees which still bore leaves on August 29, 1983.

She testified additionally that the Jehovah’s Witnesses who Madison claimed had visited her home had not visited the Pelmore residence, nor did she ever observe two black males visiting Madison’s home two days prior to the theft. Finally, she did not recall telling Madison that she, Pelmore, had observed the two Jehovah’s Witnesses approach the Madison house or get out of a large blue car that was parked on Carle Drive. She stated that she did not recall Madison having told her about the two black males coming to Madison’s home.

Dean Carmien testified that on August 29, 1983, he was working on the exterior of a house at 208 West Vermont in Urbana. The house was approximately one-half block east of the Madison home. He testified that around 11:30 a.m. he observed a car described as a large, dark blue, middle or late 1970’s Buick or Lincoln Continental “cruising” Vermont Street. Carmien identified People’s exhibit No. 11 as being a photograph of a car that looked like the car which he had seen on that day. People’s exhibit No. 11 was a picture of defendant’s car. He testified that he could not positively identify the vehicle as being the same car as he saw on August 29. Carmien finally testified that the car which he had observed contained two black males, neither of whom he could identify if he saw them again.

University of Illinois police department investigator Samuel Jordan testified that on August 29, 1983, he was called to 302 West Vermont in Urbana to investigate an apparent burglary. As part of the investigation, he lifted some latent fingerprints from the exterior screen of the bathroom window area of Madison’s home. The prints were on the inside sill of a screen that had been cut and appeared, to the investigator, to be facing downward toward the floor. No fingerprints were recovered from the outside of the window.

Jordan testified that he made a total of three lifts of fingerprints from the bathroom window, and placed each lift on its own card. He identified People’s exhibits Nos. 10A, 10B, and 10C as being the lift cards. He further testified that he checked many other areas of the Madison home for fingerprints but found none.

Jordan sent the latent fingerprints to the FBI laboratory in Washington, D.C., on November 10, 1983. He later received information from a police officer that the defendant herein had committed crimes of a similar nature in Urbana. Based on this information, he requested an FBI comparison of the latent prints he had removed from the Madison home with known prints of Thomas Bernard Jackson. He was advised that the prints matched, and, based on this information, went to defendant’s residence to arrest him. While at Jackson’s Urbana residence, Jordan saw, in Jackson’s driveway, a large, dark blue, older Lincoln Continental bearing license plate CPS 137. He identified People’s exhibit No. 11 as a photo of the car he had seen there. Jordan identified Jackson as the man whom he arrested on January 6, 1984. Following his arrest, Jackson was fingerprinted and the new prints sent to the FBI.

Whitley Brown, an FBI supervisory fingerprint specialist, testified that on February 16, 1984, he compared People’s exhibit No. 12, the inked fingerprints taken after Jackson’s arrest, with People’s exhibit No. 10, the latent prints which had been obtained by Investigator Jordan at the Madison home. Defendant’s attorney objected to this line of testimony, but the objection was overruled, after which defendant noted a continuing objection to testimony concerning the fingerprints. Agent Brown’s opinion was that five of the latent fingerprints found at the Madison home were defendant’s.

Agent Brown stated that he had at no time made a written report concerning the comparison and that his in-court testimony regarding the comparison was from his memory only. He further testified that he had appeared in court 43 times previously for the purpose of giving expert testimony. Brown finally testified that while fingerprints could be transferred from one location to another, doing so was difficult and unlikely. At this point, the State rested its case in chief.

Defendant’s case consisted of the testimony of the victim of the theft and the wife of the defendant. Carol Madison testified that she had had a conversation with Mrs. Bland Pelmore concerning the Jehovah’s Witnesses who had come to Madison’s home. She said that she and Pelmore had provided information to each other about this matter and agreed that Pelmore had, during the conversation, told her that she had observed a family exit a dark blue vehicle that was parked on Carle Drive. Madison added that this conversation was somewhat confused and occurred during a time while she was still upset about the burglary of her home.

Teresa Jackson, defendant’s wife, testified that on August 15, 1983, she and her husband were involved in an automobile accident which resulted in the right rear quarter panel of their car being hit and “demolished.” The damage had not been repaired by August 29, 1983. She testified that in the accident the defendant had received several injuries, resulting in a weak, sore back which caused him to be stiff and bedridden. According to Jackson, her husband could not lift anything or bend over as late as August 29, 1983. She identified People’s exhibit No. 11 as a picture of her husband’s car. While she did not know what the license plate number of the car was, she did know that there were three sets of keys to the car, one of which she possessed, one of which her husband possessed, and one of which had been lost.

The final piece of evidence admitted was People’s exhibit No. 14, which was a certificate from the Illinois Secretary of State’s office showing license plate No. CPS 137 being registered to defendant. Following deliberations, the jury returned a verdict of guilty of residential burglary.

A hearing on defendant’s post-trial motion and sentencing was had April 9, 1984. Prior to commencement of the hearing, the court announced that it had received a letter written and signed by defendant. The letter was not included in the record before this court. Its contents are reflected in a colloquy which was transcribed as follows:

“THE COURT: *** The record should show that I have received a letter dated April 9, 1984, handed to me by Mr. VanDenBussche, and signed by Mr. Jackson. That I have just now shown to Miss Frooman, and she has read it as well, and it appears that in this letter Mr. Jackson is complaining of his lawyer, who he says didn’t represent him properly, because a witness that Mr. Jackson requested wasn’t called to testify. Is that the gist of your position, Mr. Jackson?
MR. JACKSON: Yes, sir.
THE COURT: Mr. VanDenBussche, since your client has now raised this point, I think it something that would be appropriate for you to speak to.
MR. VanDenBUSSCHE: Your Honor, I spoke to Dr. Kosack and to Cathy Praul, Dr. Kosack’s secretary and business manager. Both Dr. Kosack and Miss Praul informed me that their records indicated that Mr. Jackson was, in fact, there on that day [August 29, 1983], but that his appointments in the afternoon [sic], and that their records are not specific enough to tell exactly when he was at their office. It could have been 2:00. It could have been 1:00. It could have been 12:30. It could have been afterwards. That there was no specifics as to exactly when. I also spoke to Dr. Kosack regarding the injuries, and Dr. Kosack, in my opinion, could not have provided any more information than was provided regarding Mr. Jackson’s defense.
THE COURT: There was testimony concerning his having
been injured?
MR. VanDenBUSSCHE: Yes, there was.
THE COURT: So, essentially, this was your tactical judgment on a matter which you had investigated?
MR. VanDenBUSSCHE: Yes, Your Honor.”

After a further brief colloquy, the court asked the defendant if he could supply the name of a particular attorney whom he desired to hire. The defendant, after consulting with friends in the courtroom, told the court that there was no specific person whom he wished to hire. The court then denied defendant’s post-trial motion.

A sentencing hearing was had, after which defendant was sentenced to the statutory maximum of 15 years for residential burglary.

Defendant raises two points which would require the reversal of his conviction and one which would require a new hearing on his post-trial motion and sentencing. We affirm in toto.

II. REASONABLE DOUBT

Defendant first argues that under People v. Hister (1975), 60 Ill. 2d 567, 328 N.E.2d 531, and People v. Coulson (1958), 13 Ill. 2d 290, 149 N.E.2d 96, his convictions must be overturned because one. State’s witness, Mrs. Bland Pelmore, who is nearsighted, did not notice damage to defendant’s car when it was parked 225 feet away, was impeached concerning events which occurred two days prior to the crime, and did not call the police even though she had observed suspicious activities at a neighbor’s home. Defendant goes on to argue that her testimony was critical because she was the only witness to place defendant (by virtue of her testimony concerning the make, model, color, and partial license plate number of the car which she had observed at her neighbor’s home) at the crime scene.

The State responds that inconsistencies in testimony do not negate its import, but simply go to the weight to be given to the testimony by the trier of fact. The State cites People v. Yuknis (1979), 79 Ill. App. 3d 243, 398 N.E.2d 258, in support of this proposition. The State goes on to argue that this witness’ testimony could not possibly be viewed as critical, since defendant’s unexplained fingerprints were found at the crime scene and this factor alone is sufficient to support the defendant’s adjudication of guilt beyond a reasonable doubt. See People v. Rhodes (1981), 85 Ill. 2d 241, 422 N.E.2d 605.

Rhodes controls. In Rhodes, the victim left a home which bore no broken-windows. Upon his return, a window was broken, and, following a subsequent investigation, defendant’s fingerprint was found on a glass fragment. The victim testified that he did not know the defendant, that defendant had never been to the victim’s home, and that he had never given permission to anyone to enter the home or remove any of its contents. Under these circumstances, the supreme court upheld the defendant’s conviction despite no other evidence being adduced.

Turning to the case sub judice, even if Pelmore’s testimony was so contradictory and improbable that its probative value was zero, the conviction must still be upheld based on the unexplained fingerprints of the defendant which were found at the scene of the crime.

III. DISCOVERY

The defendant argues the State violated the trial court’s discovery order, the violation resulted in prejudice, and his conviction must be overturned.

Prior to trial, defendant moved for discovery under Supreme Court Rules 412(a)(iv) and (a)(v) (87 Ill. 2d Rules 412(a)(iv), (a)(v)). The motion was granted and an order entered which stated:

“It is hereby ordered that the State pursuant to Supreme Court Rule 412 shall disclose to defense counsel for the above named Defendant the following material and information within its possession and control:
* * *
4. Any reports or statements of experts, made in connection with this case,, including results of scientific or mental examinations and of scientific tests, experiments, or comparisons. Oral reports or statements of experts shall be reduced to writing by said experts.”

On August 29, 1983, investigator Samuel Jordan lifted several latent fingerprints from the bathroom window area of the victim’s home. As the police investigation continued, defendant was suggested to Investigator Jordan as a possible suspect, based on the fact that he had been previously involved with crimes involving a similar modus operandi. Based on this information, Jordan wrote to the FBI asking them to compare the prints which he had lifted from the home with those on file with the FBI for Thomas Bernard Jackson. The request to compare the lifted prints with the file prints was included in the discovery materials which were, pursuant to the trial court’s order, provided to the defense in February 1984.

On December 7, 1983, the FBI reported, in a letter to Jordan, that some of the latent prints removed from Madison’s home matched those on file with the FBI for Thomas Bernard Jackson. The letter requested that a “current set of fingerprints” of defendant be sent to the FBI “in the event latent print testimony is desired.” This letter was also included in discovery materials provided to the defense in February 1984.

Jackson was arrested on January 6, 1984. He was fingerprinted, and the prints were mailed to the FBI in accordance with the FBI’s earlier request. The inked fingerprints taken January 6, 1984, were introduced at trial as People’s exhibit No. 12. A police report, which indicated that this set of inked prints was taken but which did not indicate that they were mailed to the FBI, was also made available to the defense through discovery in February 1984.

Whitley Brown, a fingerprint expert, testified at defendant’s trial that on February 16, 1984, he compared People’s exhibits Nos. 10A, 10B, and IOC (the latent prints) and People’s exhibit No. 12 (defendant’s January 6, 1984, inked prints). He told the jury that this comparison was positive as to five fingerprints. He also testified that he made no written report of this comparison, and was testifying from memory regarding it. Brown used as demonstrative evidence People’s exhibit No. 13, which was an enlargement of one of the latent prints and one of the inked prints.

From these facts, the defendant argues that the failure of the State’s Attorney to insist that the FBI expert witness reduce his fingerprint comparison to writing violated the trial court’s discovery order which required that “oral reports or statements of experts shall be reduced to writing by said experts.” Defendant proceeds to argue that such a conclusion is required by the policy of preventing parties to a lawsuit from avoiding discovery by conducting experiments or comparisons and not reducing them to writing, citing the case of People v. Nichols (1976), 63 Ill. 2d 443, 349 N.E.2d 40. Defendant then urges that the error was clearly harmful, since the fingerprints tied defendant to the crime scene and the prints taken from the defendant following his arrest were the only properly admissible evidence under this court’s decision in People v. Miller (1974), 20 Ill. App. 3d 1061, 313 N.E.2d 660. Defendant concludes that the information was additionally harmful because, had it been known to the defendant and his counsel, it might have been useful in determining whether to seek a negotiated plea instead of going to trial.

The State responds first that Nichols is distinguishable as a due process case which, by definition, must involve the suppression of favorable evidence following a request for its production, and second, that the defendant was neither surprised nor prejudiced by the State’s action as reflected by his trial attorney’s admission that he “[could not] tell the court I would have done any differently” even if he had been told his client’s fingerprints matched the latent prints lifted from the crime scene. The State also argues that the negotiated plea argument raised by defendant is without merit, since the defendant could have taken a continuance after the expert’s testimony to take advantage of possible plea negotiations but did not do so, and further that it was within the defendant’s personal knowledge at all times whether the original file prints held by the FBI were his or not.

Noting that Nichols is properly distinguished as a due process case dealing solely with the nondisclosure of evidence favorable to an accused, our opinion is that this issue is controlled by the general rule that even where the State has arguably failed to comply with discovery prior to trial, it is nevertheless within the sound discretion of a trial court to admit the undisclosed testimony or evidence, and that the admission of such evidence does not constitute reversible error absent a showing by the defendant of resulting surprise and prejudice. See People v. Mason (1978), 61 Ill. App. 3d 918, 378 N.E.2d 384; see also People v. Wells (1982), 106 Ill. App. 3d 1077, 436 N.E.2d 688.

Here, the defendant utterly failed to show that he was surprised by the fact that the prints which were taken from him after his arrest and the prints which the FBI had on file and had previously told the State belonged to the defendant were identical. Further, the defendant was, through the discovery materials provided to him, fully apprised of the fact that the FBI had indicated the presence of a match between the prints which were on file and the prints which were lifted from the victim’s home. Additionally, he knew he had been fingerprinted following his arrest. Under these circumstances, the defendant’s allegations of surprise are simply unavailing, and therefore the admission of the evidence at trial was not reversible error.

Additionally, defendant’s argument that the State had a general duty to reduce the FBI expert’s findings to writing is negated by People v. Caldwell (1976), 39 Ill. App. 3d 1, 349 N.E.2d 462, where the court held that there is no general requirement that all oral statements in possession or control of the State be reduced to writing absent a showing of bad faith on the part of the State. Here, there was no showing of bad faith.

In conclusion, and to prevail on this point, defendant must show resultant prejudice and surprise. He has not done so, and therefore the argument must fail.

IV. POST-TRIAL HEARING

As previously indicated, Jackson and his attorney appeared before the trial court for the dual purposes of hearing defendant’s post-trial motion and holding a sentencing hearing. Before convening those matters, the court announced that it had received a letter from Jackson in which he complained that he had been ineffectively represented by his trial attorney. The letter apparently complained that a witness had not been called to testify. Jackson verbally detailed his complaint by indicating to the court that the witness had not been called although he and his office staff had been interviewed. Trial counsel stated that the witness had not been called because he could not place defendant at the witness’ place of business at any relevant time and that his testimony concerning defendant’s injuries would have been cumulative to that given by defendant’s wife. The court indicated that it might delay the post-trial motion and sentencing hearing if Jackson could give the court the name of a lawyer Jackson was prepared to hire. Jackson could not name an attorney, and the trial court denied the post-trial motion and allowed defendant’s attorney to continue representing him for sentencing. Jackson was sentenced to the maximum term of 15 years’ imprisonment.

Defendant argues on appeal that where a defendant, in a post-trial motion, alleges the ineffective assistance of trial counsel, new counsel generally should be appointed for the purpose of conducting the hearing. For this proposition he cites People v. Fields (1980), 88 Ill. App. 3d 821, 410 N.E.2d 1178. The reason for appointment of new counsel is that the original trial attorney would generally be under a conflict of interest were he called upon to justify his actions in the case. In defendant’s view, this is exactly what happened in the case sub judice in that his trial attorney was forced to take an adversarial position against his client in arguing to the court that his failure to call an alibi witness was justified.

The defendant agrees that this is not a per se rule (see People v. Johnson (1981), 98 Ill. App. 3d 228, 424 N.E.2d 610) but argues that the rule is properly invoked if the underlying circumstances of the ineffective assistance claim arguably support it. In defendant’s view of things, his treating physician should have been called either as an alibi witness or as a medical expert who could have opined that defendant was physically unable to pick up a television or microwave oven on the day of the crime.

Defendant finally argues that in People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, the supreme court remanded for a new post-trial hearing a case wherein a defendant alleged his trial attorney’s failure to investigate an alibi witness. To defendant’s view, this should be read as recognizing as meritorious most claims revolving around the failure of an attorney to call an alibi witness and calls for remanding this case for a new post-trial hearing with defendant being represented by a new attorney.

The State responds that Johnson must not be read as calling for appointment of new counsel any time a trial attorney is called upon to explain matters alleged by a client as showing incompetency, but as calling upon a trial court to determine whether the facts underlying defendant’s claim have potential merit and to refuse to appoint new counsel if defendant’s claim is spurious or revolves simply around a matter of trial strategy or tactics. The State concludes that the facts here show the decision not to call the defendant’s doctor was a matter of trial tactics since the doctor could admittedly not place the defendant in his office at the time of the crime and the defendant’s wife had previously testified pertaining to defendant’s injuries.

We are in general agreement with the State’s position on this issue, with one exception which will be discussed. In our opinion, the problems created by a defendant who, during post-trial proceedings, claims that his attorney has ineffectively represented him during trial, are best met by the objective tests set forth in Johnson. The trial court should examine the factual matters underlying the defendant’s claim. There are several matters to be determined. If the claim goes to matters of trial tactics or strategy, the defendant’s claim should be found spurious and his request for new counsel denied. This was the case in Johnson. If, however, the factual matters show possible neglect of the defendant’s case, the court should appoint new counsel who can undertake an independent evaluation of the defendant’s claim and present the matter to the court from a detached, yet adversarial, position. This was the case in KranJcel, where defendant alleged that his attorney failed to interview an alibi witness.

It seems elementary that during the evaluation of defendant’s claims, some interchange between the court and the defendant’s attorney must take place. Such an interchange is necessary to avoid potential abuses by those who would falsely claim situations of the KranJcel type. It is simply stretching matters beyond credulity to claim that in responding to the court’s inquiries a defendant’s attorney has somehow taken a position adverse to his client’s best interest. This is not to say that defense counsel should be able to undertake lengthy legal arguments pertaining to the fact that his representation as performed conformed to limits of proper advocacy as delineated by case law. Rather, counsel may simply answer questions and explain the facts and circumstances surrounding matters which are alleged by his client to demonstrate that he was not adequately represented at trial.

Turning to the case at bench, we find that defendant’s attorney, upon questioning by the trial court, simply explained that he did not call the defendant’s doctor because he could not place defendant in his office at a specific time. We note — parenthetically—that the actual time of the perpetration of the crime was never definitely established at trial, making this testimony virtually nonprobative as an alibi. Secondly, defendant’s claim that his doctor could have expressed a medical opinion concerning his inability to lift the stolen items is equally without merit. Even if such testimony was admissible, it was certainly cumulative to the evidence presented by defendant’s wife. Additionally, one witness testified to having seen two black males in a car similar to defendant’s, and the car cruising the neighborhood on the day of the crime. From this it could be readily inferred that defendant was operating with an accomplice, thus rendering this point moot.

We conclude that defendant’s trial attorney did no more than was required in allowing the trial court to perform its duty of determining whether defendant’s claim of ineffective assistance during trial was meritorious or spurious. The trial court determined the contention was spurious, a determination which was not manifestly erroneous and which we affirm.

We turn now to one final matter which we find most curious in this case. Defendant was represented throughout this case by privately retained counsel! At oral argument in this court, his appointed counsel was unable to explain under what authority a trial court might sua sponte dismiss an attorney with whom a defendant has entered a contract of representation. To our way of thinking, only two parties hold this power, the defendant and his attorney. Just how and why a court should be forced to reorder a contractual relationship when the defendant held the ultimate power at all times is simply beyond us. At any rate, our opinion is that both court and counsel acted appropriately in dealing with this matter, and the decision to not appoint new counsel for the defendant is affirmed.

Affirmed.

McCULLOUGH and TRAPP, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM STEFFENS, Defendant-Appellant.
    First District (5th Division)
    No. 83—1702
    Opinion filed February 15, 1985.
    Rehearing denied March 19, 1985.

      James J. Doherty, Public Defender, of Chicago (Patricia J. Handlin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Karen C. Wirth, and Mary Louise Norwell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Following a jury trial, defendant, William Steffens, was convicted of murder and given a 30-year sentence. On appeal, he contends that (1) the trial court erred (a) when it allowed the State to introduce a portion of defendant’s post-arrest statement to the police but refused to allow him to introduce the rest of the statement, and (b) by allowing the State to present opinion testimony without a foundation or qualification of the witness; (2) he was not proved guilty beyond a reasonable doubt; (3) the prosecution’s closing argument was erroneous, inflammatory, and highly prejudicial; and (4) his sentence was excessive.

It appears from the record that the victim — Edward Osika — and defendant had a verbal altercation regarding the speed of defendant’s car on Mason Avenue outside the victim’s parents’ home, and after their initial encounter, defendant drove away and the victim entered his parents’ home with his wife and children.

Later, Thomas Osika — the victim’s brother — shouted that defendant’s car had returned, and several members of the Osika family ran from the house to the street. Thomas and Edward approached defendant’s car, and although the accounts of the intervening events varied, it is uncontroverted that as defendant attempted to leave, his car made contact with Edward, who was caught underneath it, and dragged for over a block before the car stopped. The victim was taken to a hospital, where he died.

Thomas Osika testified that after he saw defendant’s car parked alongside and slightly ahead of his brother’s truck, he ran out of the house and into the street, followed by Edward. He saw someone standing on the running board looking into Edward’s truck and, when he yelled, the man jumped off the running board and got into defendant’s car. Thomas was then standing in the street in front of and close to Edward's truck. After the passenger reentered defendant’s car, Thomas saw Edward in the street. “He was slipping” at that time and was about four feet from the curb and about 20 feet to the right of Thomas. The car sped off “a couple of seconds” after the passenger reentered. Thomas chased the car for almost V-k blocks, yelling that his brother was underneath. His sister Sandy was following him, and when the car stopped the passenger jumped out and ran away. When Thomas told defendant that his brother was still underneath the car, defendant replied, “Well, good. I will be back for you later.” He then left the scene after taking something from the car. On cross-examination, Thomas said that the street in front of his parents’ house was a one-way street running south and there was a space of about 50 feet between his brother’s truck and the next vehicle in front of it. Both the driver and the passenger were looking at Thomas when the passenger jumped into the car, and the car sped off a couple of seconds after he entered. Thomas also stated that Edward fell a couple of seconds’- before the driver of the car “hit the gas.” When Edward was struck by the car, he was about 20 feet from him (Thomas). Although Edward was protected from southbound traffic by his own truck, defendant’s car swerved in toward him when it accelerated forward.

Sandy Osika — the victim’s sister — corroborated Thomas’s testimony as to the first exchange between defendant and Edward, and she also testified that later, when they were all in their home, she heard Thomas yell, “Hey, they are back.” Her father and brothers, with her following, ran out to the street. She saw defendant’s car stopped with about half of the car in front of Edward’s truck, and saw the brown car start to pull away while Edward was standing in the street. The car struck and ran over him and then continued, with Edward caught underneath. She chased the car down the street, preceded by her brother Thomas. The car passed a stop sign at Gunnison without slowing, and when it did stop the passenger ran away. When Thomas yellowed to the driver, “You killed my brother,” the driver reached his finger over the top of the car and said, “Okay, I am coming back for you later.” He then ran from the scene. She denied telling detectives at the hospital that she did not actually hear what defendant said to Thomas. She stated that she saw the car strike Edward, and she denied telling the detectives that after she saw Edward walk around the front of his vehicle, the very next thing she saw was the car speeding down the street with Edward underneath it.

Defendant, after testifying to the first exchange of words with Edward on Mason Avenue on the day in question, stated that he dropped off a young woman who was in the car and then returned to Mason Avenue with the other passenger, Alan Kellerman. When he turned down Mason on this occasion, he was traveling 25 to 30 miles per hour, and he saw Edward standing next to his truck with an object in his hands. He lost sight of Edward when he walked to the passenger side of the truck, but then saw Thomas Osika with a brick in his hand. He was traveling about 30 miles per hour as he approached Edward’s truck, when a brick struck his car and he turned to see who had thrown it. At the same time, he “punched the accelerator.” When he turned his head back while still traveling at about 30 miles per hour, he saw Edward for a split second in front of the car and saw an object from Edward’s hand fly through the air. As he proceeded down the street, the car did not pick up speed. He shifted to low gear but attained a speed of only 10 to 15 miles per hour, and the motor eventually died. He had no idea that he was dragging Edward down the street, although he did see three people chasing him as he drove. When he stopped the car, Thomas told him that he killed his brother, and after he replied that he had not killed anybody, Thomas told him that his brother was underneath the car, and he saw a leg protruding from under the car. He then took some items from the car and ran from the scene, telling Thomas to stay away from him. There were no dents on his car prior to this incident, and a dent on the passenger-side quarter panel of the car had not been there before the incident.

On cross-examination, defendant said that when he turned into Mason the second time, he saw Edward about one-half block away standing in the street, and he kept going at a speed of 25 to 30 miles per hour. Edward left his vision, and he then saw Thomas standing on the sidewalk, holding a brick. He was still traveling about 25 to 30 miles per hour when his car was hit by a brick, and he turned to the right to see who threw the brick. When he looked back, he saw Edward about V-k to 2 feet in front of his car. He did not swerve or try to miss Edward because he was going too fast. He did not feel anything when he struck Edward, nor did he feel the car dragging him down the street. He did not remember whether he told two detectives that he stopped or slowed his car the second time he drove down Mason, but he admitted lying to the police about his age and name. After the incident, he changed his clothes and took the vehicle sticker off the car because he was scared.

Officer Rabbit testified that during a conversation at the hospital with Sandy, he believed she told him that Thomas went to talk to the passenger of the car while Edward walked around the front of the car, giving it a wide berth. He believed that he also understood her to say that the next thing she remembered or saw was the car speeding down the street with Edward trapped underneath it, and that she saw defendant say something to Thomas after defendant left his car but she did not hear what was said. During this conversation with Sandy at the hospital emergency room, a nurse gave her a tranquilizer.

Thomas, called as a witness by defendant, testified defendant’s car did swerve a couple of feet toward Edward. Thomas was then recalled by the State in rebuttal, and he denied that anyone had or threw a brick or pipe that day. He also stated defendant’s car stopped after a block and a half, and he again stated that defendant said, “I will be back for you later.” Sandy, on recall, also said that no one had or threw anything that day and that she did see defendant’s car start up and strike Edward and did hear defendant say to Thomas, “Okay, I will be back for you later.”

Opinion

Defendant first contends that the trial court committed reversible error when it refused admission of the remainder of defendant’s post-arrest statement to the police after the State had introduced a portion thereof for the purpose of impeachment. The State maintains that since no offer of proof was made by defendant, the alleged error was not properly preserved for appeal. (Szymkowski v. Szymkowski (1982), 104 Ill. App. 3d 630, 432 N.E.2d 1209.) The plain-error doctrine may be involved, however, where the question of guilt is close and the error in question may have substantially affected the outcome of the case (People v. Sanders (1983), 99 Ill. 2d 262, 457 N.E.2d 1241), and here, since the defendant’s credibility is crucial because the question of guilt rests entirely on his intent at the time of the incident and because the trial court was generally made aware of the evidence expected to be offered (see People v. Martin (1981), 101 Ill. App. 3d 480, 428 N.E.2d 591), we will consider defendant’s contention.

Defendant testified that he drove past the Osika house the second time at a speed of about 30 miles an hour and that he did not stop or slow down before making contact with Edward, but Officer Rabbit — in rebuttal — testified that defendant told him at the time of his arrest that he did slow or stop his car as he passed the Osika house for the second time. Defendant then sought to introduce the rest of defendant’s statement to Officer Rabbit, all of which had been recorded in his police report, but was not allowed to do so. The statement, as filed by defendant in the supplemental record, is as follows:

“Steffens stated that he had been the driver of the car and that he had hit Osika by accident. When asked for a detailed account of the incident Steffens stated that he had driven down Mason Avenue and had come upon Edward Osika with his open truck door blocking the street. Steffens states he cursed at Osika and finally got by. Steffens stated that he had then gone around the block and come back to 4870 Mason. He doesn’t know why he came back around. Steffens stated that as he stopped or slowed the car all the Osika family came running out to the street, including an old man throwing a brick at them. Steffens states he just hit the gas to flee and had never even saw the man they ran over and never noticed that they were dragging the man down the street. Steffens then got scared of the people chasing the car and jumped out and ran. He and Alan Callarman [sic] met up down the street and went home to Berwyn. Steffens then got Tommy Callarman [sic] to call and report the car stolen. Next thing he knew the Berwyn Police had picked him up and brought him into Area 5.
At the time of the arrest and throughout the interviewing and statements Steffens stated he was 16 years old. After being printed he stated that he was really William Krolik, age 17. This information has yet to be substansiated [sic].”

In support of his contention that he should have been permitted to introduce the entire statement, defendant cites People v. Kalpak (1957), 10 Ill. 2d 411, 140 N.E.2d 726, as authority for the broad proposition that when a conversation is related by a witness, the opposing party has a right to bring out all of the conversation on cross-examination. The Kalpak court actually made a more qualified statement. “If a witness testifies to part of a conversation on behalf of one party, the other is entitled to show all that was said in that conversation on the same subject.” (Emphasis added.) 10 Ill. 2d 411, 424, 140 N.E.2d 726, 733.

Moreover, it is well established that when a witness has been impeached with a prior inconsistent statement, he may offer in rehabilitation only prior consistent statements which qualify or explain the inconsistency. (People v. Hicks (1963), 28 Ill. 2d 457, 192 N.E.2d 891; People v. Andersch (1982), 107 Ill. App. 3d 810, 438 N.E.2d 482.) Here, we note, and defendant admits, that nothing in the remainder of the statement explains or concerns the inconsistency testified to by Officer Rabbit; rather, it appears that the rest of the statement corroborates other portions of his testimony.

Defendant also refers us to United States v. Walker (7th Cir. 1981), 652 F.2d 708, for further support, but we considered Walker in Andersch, and we believe that analysis under the principles involving the Federal evidentiary rules applicable in Walker would lead to the same result here. We additionally note that the authority presented by defendant during and after oral argument here do not require a different result. Those cases (People v. Klinkhammer (1982), 105 Ill. App. 3d 747, 434 N.E.2d 835; People v. Richmond (1980), 84 Ill. App. 3d 1017, 406 N.E.2d 135), which stand for the rule that a prior consistent statement may be presented to rebut charges of recent fabrication, are inapposite in the case before us, where the portion of the statement testified to by Officer Rabbit was inconsistent with defendant’s testimony and there is no contention that it was of recent fabrication. We find that the trial court ruled correctly in denying admission of the remainder of defendant’s statement to the police.

Defendant next contends that he was not proved guilty of murder beyond a reasonable doubt and, alternatively, that he was, at most, guilty of reckless homicide. It is the jury’s function, however, to resolve factual disputes, assess witness credibility, and determine the weight and sufficiency of the evidence, and the jury’s verdict will not be reversed unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt remains. (People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369, cert, denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) Here, there is no dispute that the automobile driven by defendant hit and dragged the victim, and the only issue present in defendant’s reasonable-doubt contention is his level of intent. The difference between the intent required for murder and that required for involuntary manslaughter is the degree to which the acts performed by defendant risk death or great bodily harm. People v. Mifflin (1984), 120 Ill. App. 3d 1072, 458 N.E.2d 1343.

The murder statute provides:

“A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a).)

Intent may be implied or inferred from the character of the act. (People v. Davis (1966), 35 Ill. 2d 55, 219 N.E.2d 468.) Thus, it is not necessary to directly prove that defendant had the intent to murder; all that need be shown is that he voluntarily and willfully committed an act, the natural tendency of which was to cause death or great bodily harm. (People v. Szerletich (1980), 86 Ill. App. 3d 1121, 408 N.E.2d 1098; People v. Johnson (1978), 66 Ill. App. 3d 84, 383 N.E.2d 648.) It is our task, then, to determine whether the evidence is sufficient to support the jury’s finding concerning defendant’s level of intent for murder, and that evidence must show, at the very least, that defendant knew that his acts created a strong probability of death or great bodily harm.

In our review of the evidence, we especially note that defendant admitted during his testimony that he saw Edward Osika in front of his car before he hit him, and there is no question that his death resulted either from the impact or from being dragged under the car for a block and a half or from a combination of the impact and dragging. Although defendant said that he was, at most, two feet from the victim when he saw him and could not stop in time to avoid hitting him, Thomas testified that his brother was 20 feet in front of defendant’s vehicle at the time defendant started his car and only about four feet from the curb. So positioned, he would not have been struck by defendant’s car if it went straight forward. Thomas, however, testified that defendant swerved the car toward Edward before striking him. It is generally necessary to prove intent through use of circumstantial evidence (People v. Jones (1977), 55 Ill. App. 3d 446, 370 N.E.2d 1142), and a defendant’s intent may be inferred from the surrounding facts and circumstances, including his words and actions (People v. Jones (1981), 93 Ill. App. 3d 475, 417 N.E.2d 647). It appears to us that from the testimony of Thomas — that defendant’s car swerved toward and struck Edward— the jury could reasonably have believed that defendant intended to hit the victim with his vehicle. Supportive of this belief is the additional testimony of Thomas that when he told defendant, after his car stopped, that Edward was still underneath the car, defendant replied, “Well, good. I will be back for you later.”

Furthermore, although defendant testified that he did not see the victim until it was impossible to avoid hitting him, he also testified that he continued driving for almost a block until the car came to a stop. While defendant denied knowing that the victim was underneath his car, he did admit hitting him, and we think the jury could also have reasonably believed that defendant knew he was dragging the victim. This view is supported by his own testimony that he had been traveling 25 to 30 miles per hour and after the impact he tried but could not attain a speed of more than 10 to 15 miles per hour, even though he shifted gears to increase his speed. In light thereof and because his car eventually stalled due to the drag of the victim’s body after being driven for 1 to IV2 blocks, it appears to us that it was not unreasonable for the jury to believe that defendant knew his actions created a “strong probability of death or great bodily harm.” Considering the totality of the circumstances, we find that defendant was proved guilty beyond a reasonable doubt.

Defendant next contends that the trial court erred in allowing Officer Sanders, an employee of the crime laboratory — over objection— to express a lay opinion on the age of the dents on the car. The State correctly argues that defendant has waived his right to raise this issue on appeal by failing to include it in his post-trial motion. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Moreover, admission of the testimony was not error since a lay witness may express “an opinion based upon his observations where it is difficult to reproduce for the jury the totality of the conditions perceived and where the opinion given is one that persons in general are capable of making and understanding.” (People v. Stokes (1981), 95 Ill. App. 3d 62, 66, 419 N.E.2d 1181, 1185.) In Stokes, a police officer expressed an opinion concerning the trajectory of a bullet and the point of origin of gunfire. We believe that here, the testimony that the indentations “appeared to have been there for some time” because they seemed to be “weather worn” was even more clearly within the range of opinions which persons in general could make based on their observations, and we therefore find that the testimony was properly admitted.

Defendant next contends that a number of comments by the prosecutor in closing argument were improper and highly prejudicial. We initially note that, although some of the comments were objected to, the issue as to the propriety of all of them was not preserved for review because defendant failed to specifically set them forth in his post-trial motion. (See People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Thomas (1983), 116 Ill. App. 3d 216, 452 N.E.2d 77.) In any event, we do not believe, as will be discussed below, that the comments resulted in such prejudice to defendant as to constitute reversible error. See People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836.

In this regard, we first consider defendant’s contention that the prosecutor improperly referred to answers of jurors on voir dire. In his closing argument, defense counsel commented that the occurrence in question was an accident, and he suggested that this position was supported by a statement of Thomas Osika, who in his testimony referred to the police arriving “at the scene of the accident.” In rebuttal, the prosecutor remarked that many people refer to a collision of automobiles or the impact between a car with a person or thing as accidents, and that Thomas Osika’s statement should be considered as only such a casual reference, unrelated to the question of defendant’s intent. To support this view, the prosecutor included in his remarks a reference to the questioning on voir dire during which three jurors revealed that each termed an occurrence in which a friend was killed or injured as an accident. We believe that the remarks complained of were a proper response to the earlier comment by defense counsel, and even if they were not, we do not feel — as defendant argues — that they were prejudicial. See People v. Mitchell (1979), 78 Ill. App. 3d 458, 397 N.E.2d 156.

Defendant next maintains that he was prejudiced when, in closing argument, the prosecutor repeatedly and improperly called him a liar. We disagree. A defendant may properly be called a liar, however, if the statement finds support in the evidence. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174, cert, denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2121.) Here, defendant was not only impeached by prior inconsistent statements to the police, but he also admitted that he gave a wrong name, age, and address to the police, and that he told the owner of the car to report it as being stolen. While we believe that he could properly be termed a liar from those facts, we note also that his counsel referred to him as a liar in closing argument, stating, “There is no question that he [defendant] was lying. *** He lied after the accident. *** And later, he panicks [sic] and lies.”

Defendant also argues that he was prejudiced when the prosecutor misled the jury in closing argument by giving incomplete definitions of reckless homicide and murder and inferring that the mental state in each was the same. It is proper, however, for an attorney to give examples illustrating the application of the law to the facts (People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931, cert, denied (1981), 454 U.S. 1080, 70 L. Ed. 2d 613, 102 S. Ct. 633), and where the attorney correctly states the law, there can be no prejudice to the opposing party (People v. Schreiber (1982), 104 Ill. App. 3d 618, 432 N.E.2d 1316, cert, denied (1983), 459 U.S. 1214, 75 L. Ed. 2d 452, 103 S. Ct. 1214). Here, we have examined the comments complained of, which for the most part are examples illustrating the application of the law to the facts, and we find that the definitions of reckless homicide and murder, while not artfully stated, were not incorrect. We further find no basis for the argument that the prosecutor improperly inferred that the mental states in both offenses were the same. In view thereof and because the jury was properly instructed by the trial court as to the level of intent in both offenses, we reject defendant’s argument that he was prejudiced by the comments.

Defendant finally contends that his 30-year sentence was excessive. A sentence of not less than 20 years and not more than 40 years may be imposed for murder (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(a)); however, pursuant to Supreme Court Rule 615(b)(4), we have the discretionary power to reduce an excessive sentence (88 Ill. 2d R. 615), but a trial court’s sentencing decision will not be disturbed absent an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882). An abuse of discretion may be found even where the sentence is within the statutory limitations, however, if that sentence is greatly at variance with the purpose and spirit of the law. (See People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491.) The Illinois Constitution requires that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship” (Ill. Const. 1970, art. I, sec. 11), and defendant here argues that the trial court abused its discretion by not taking into consideration his age and rehabilitative potential.

In Gibbs, we stated that the constitutional mandate requires that the trial court actually consider rehabilitation as an objective of the sentence. The legislature has determined that adequate retribution for murder may be satisfied by imposition of the minimum sentence (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1)(a)), and, in Gibbs, we described the further analysis necessary under the constitutional sentencing provision as follows:

“Each case, of course, must be considered separately for its own particular illumination of, and response to, the meaning of the [constitutional] mandate. The nature and circumstances of the offense and the history and character of the defendant will be the governing factors.” People v. Gibbs (1977), 49 Ill. App. 3d 644, 649, 364 N.E. 2d 491, 494.

With respect to the nature and circumstances of the particular offense, we note that in Gibbs defendant walked up to the door of the victim’s apartment and, when the victim answered defendant’s knock, defendant shot and killed him. The trial court imposed a sentence of 50 to 100 years, and we reduced it to 15 to 45 years since Gibbs was only 19 years old, was steadily employed, had no previous criminal record, and lived with his parents. In the present case, the offense was not a calculated murder. The confrontation between defendant and the victim was initiated by the victim, and, even though defendant returned to the scene apparently to cause some sort of trouble, the murder itself was the result of a sudden escalation of the encounter between defendant and the victim’s family. We particularly note the short period of time which elapsed, and, taken in context, the offense did not approach the type of premeditated attack at issue in Gibbs, where we reduced the sentence.

With respect to the issue of rehabilitation, we note that we have reduced a defendant’s sentence on the basis of rehabilitative potential where a defendant came from a poor social environment and had limited education (see People v. Kosanovich (1979), 69 Ill. App. 3d 748, 387 N.E.2d 1061), where defendant has expressed a desire to continue his education (see People v. Nelson (1982), 106 Ill. App. 3d 838, 436 N.E.2d 655), and in certain cases, where defendants were extremely young (see People v. Rickard (1981), 99 Ill. App. 3d 914, 425 N.E.2d 1317; People v. Smith (1977), 50 Ill. App. 3d 320, 365 N.E.2d 558, cert, denied (1978), 435 U.S. 1008, 56 L. Ed. 2d 390, 98 S. Ct. 1880; People v. Horton (1976), 43 Ill. App. 3d 150, 356 N.E.2d 1044). Here, defendant was only four weeks past the age of 16 at the time of the incident, and his only criminal record was conviction for burglary as a juvenile three years prior. While serving a year at the Peoria Youth Farm for that offense, he completed a year of high school, and we note that although the trial court said defendant had a “vicious streak within him,” the record indicates that he had never been arrested for a violent crime even though he comes from a very poor social background. We also note that the probation officer who prepared the presentence investigation report indicated that defendant was very cooperative and expressed a desire to continue his education while incarcerated.

In the light of the circumstances presented, the defendant’s age, and lack of a significant criminal record, we believe that defendant’s rehabilitative potential was not given adequate consideration. Accordingly, under the authority of Supreme Court Rule 615(b)(4), we reduce defendant’s sentence for murder to 20 years.

Judgment affirmed as modified.

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

      Since the victim was killed as a result of defendant’s conduct with a motor vehicle, reckless homicide is involved rather than involuntary manslaughter, but the element of intent is the same. See Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3.


author: PRESIDING JUSTICE McGLOON JUSTICE CAMPBELL,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES C. BURTON, Defendant-Appellee.
    First District (1st Division)
    No. 83—0695
    Opinion filed February 11, 1985.

      CAMPBELL, J., dissenting.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Garritt E. Howard, and Karen C. Wirth, Assistant State’s Attorneys, of counsel), for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

The defendant, James C. Burton, was charged by complaint with unlawful use of weapons. (Ill. Rev. Stat. 1981, ch. 38, par. 24— 1(a)(4).) Prior to trial, defendant filed a motion to suppress the weapon that was seized from his person when arrested. After a hearing, that motion was granted. The State appeals (87 Ill. 2d R. 604(a)(1)), contending that the search by the metal detector was a private search, and therefore, was not subject to the exclusionary rule and that the frisk of defendant by the arresting police officer was valid pursuant to the exception in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Defendant has not filed a brief, but we will consider the merits of the State’s contentions. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The following facts were adduced at the hearing on defendant’s motion to suppress: On November 12, 1982, the defendant went to the Aragon Ballroom, which is located in the 1100 block of West Lawrence Avenue in Chicago, in order to attend the televised fight between Alexis Arguello and Aaron Pryor. At that time, he was in possession of his gun. Defendant arrived at 8:15 p.m. and purchased a ticket. He then proceeded through the outer lobby toward the door in the inner lobby. Above the door to the inner lobby was a large orange sign written in English and Spanish which warned patrons that for their safety before entering they would be checked by an electronic metal detector. The metal detector was located three feet inside the inner door.

Officer Venticinque, who was assigned that night to the area where the Aragon Ballroom is located, had stopped at that location and had informed the Aragon security personnel that he would be the tactical officer on duty that evening in the event that there were problems regarding auto theft, narcotics in the washroom and other things. Officer Venticinque happened to be standing between the warning sign and the metal detector when defendant walked in a single file through the detector at 8:15 p.m. The alarm then sounded. In response Officer Venticinque patted down defendant’s outer clothing and discovered a loaded revolver concealed on defendant’s side. The police officer then took possession of the weapon and arrested defendant on a charge of unlawful use of weapons.

It was established that the metal detectors at the ballroom were set for large quantities of metal. Defense witness Vincent DiVito testified, nonetheless, that he did not recall seeing any detectors or any signs referring to any detectors when he arrived at the ballroom at approximately 7 p.m. that same evening. He stated that he encountered three off-duty policemen who allowed him entrance without having to pass any metal detectors. However, it was established that special guests of the management were personally guided through separate entrances which were not monitored by metal detectors. DiVito further stated that he did not believe that there was a warning as to the metal detectors printed on his ticket. It was further established that metal detectors had been used for the past three years at the ballroom.

Defendant testified in his own behalf and denied consenting to the electronic search and also denied seeing the sign above the doorway. Although several persons were being searched in that area ahead of him, defendant indicated that he was not aware of the potential for a search.

The State also introduced two photographs of the warning signs. These photographs revealed that the warning was printed in large black letters on a fluorescent orange background. These two signs, one in Spanish and one in English, were suspended from the ceiling.

After hearing this evidence, the trial court suppressed the gun, reasoning that it was the product of the pat-down search by Officer Venticinque. The trial court based its decision solely on lack of consent, stating that the signs in the area were too ambiguous and that the ambiguity required the State to show by clear and convincing evidence that consent was freely and voluntarily given. The court concluded that the State had failed to satisfy its burden.

The State maintains that the first search was a private search, and consequently, was not subject to the exclusionary rule. The State further asserts that the second intrusion constituted a pat-down search which was justified by Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. We are in agreement with these contentions.

The burden of going forward with evidence to demonstrate legal justification shifts to the State in a suppression hearing once a defendant proves that a warrantless search has occurred and that the defendant was doing nothing unusual at the time of the search (People v. Boston (1979), 73 Ill. App. 3d 107, Ill, 391 N.E.2d 503.) However, the State is required to demonstrate the validity of a search only by a preponderance of the evidence. (See People v. Boston (1979), 73 Ill. App. 3d 107, 391 N.E.2d 503.) In rendering its decision, the trial court in the present matter adopted the reasoning of an opinion from the State of Iowa where the “clear and convincing standard” was applied. (See State v. Carter (Iowa 1978), 267 N.W.2d 385, 386.) It is evident, therefore, that the trial court in the present matter erred when it applied a standard of proof which was higher than the preponderance of the evidence standard.

Moreover, private action is not subject to the exclusionary rule of the fourth amendment because there would be no deterrent effect to punish this type of individual action. (Burdeau v. McDowell (1921), 256 U.S. 465, 475, 65 L. Ed. 1048, 1051, 41 S. Ct. 574, 576.) In addition, participation by the police in a search, in and of itself, does not automatically invoke the exclusionary rule. See People v. Heflin (1978), 71 Ill. 2d 525, 539-40, 376 N.E.2d 1367.

It is true that the fourth amendment, as it applies to the States through the fourteenth amendment, requires that any search or seizure be reasonable. (Terry v. Ohio (1968), 392 U.S. 1, 8-9, 20 L. Ed. 2d 889, 898-99, 88 S. Ct. 1868, 1873.) And, to this end, the search and seizure provision of the Illinois Constitution is construed very similarly with the same provision of the Federal Constitution. (People v. Lee (1971), 48 Ill. 2d 272, 278-79, 269 N.E.2d 488.) However, probable cause for an arrest is not required in order to conduct a stop-and-frisk pursuant to Terry v. Ohio. As long as the officer has sufficient and articulable facts which create a reasonable suspicion that the person has committed or is about to commit a crime (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879-80), he may conduct a pat-down search of the outer clothing of the defendant in order to protect himself if defendant is armed (392 U.S. 1, 29, 20 L. Ed. 2d 889, 910-11, 88 S. Ct. 1868, 1884). Whether an officer believes that a subject is armed is not judged by the probable cause test; the officer need only have a reasonable belief that either his safety or the safety of others is in danger. 392 U.S. 1, 27, 20 L. Ed. 2d 889, 909, 88 S. Ct. 1868,1883.

In the present case, it was established that the Aragon Ballroom installed a metal detector in order to protect the safety of its patrons and property and also to maintain an orderly audience. The purpose of the metal detector was to detect large masses of metal, thereby deterring: the concealed possession of weapons at the ballroom. The record also establishes that the ballroom had control of the detector and bore the cost of installing and running the detector. In view of such facts, it is our opinion that the metal detector was not installed in order to obtain incriminating evidence to assist the police in catching criminals. It was primarily used to protect the patrons at the ballroom.

Moreover, it was demonstrated that Officer Venticinque was not part of the ballroom’s security plan to protect its patrons. It is true that the police officer was on duty when he made the subsequent frisk of defendant. However, it is our opinion that it was only a fortuitous circumstance that placed the police officer in the area of the metal detector when defendant triggered the alarm. Accordingly, we cannot agree with defendant’s contention at trial that the metal detector constituted State rather than private action. However, we do feel that the stop-and-frisk of defendant by Officer Venticinque constituted State action, and therefore, is subject to constitutional scrutiny.

Once defendant went through the metal detector and triggered the alarm because he had a large metal mass concealed on his person, Officer Venticinque had reasonable and articulable facts from which he could presume that defendant was unlawfully carrying a concealed weapon and could be considered dangerous. Accordingly, we must conclude that the purpose of the officer’s pat-down search of defendant was not to collect evidence of a crime, but rather to protect himself and others from danger due to the possibility of a concealed deadly weapon. It was established that the scope of the pat-down search was no more intrusive than was necessary to locate a weapon. Therefore, we feel that the evidence introduced by the State clearly met the preponderance of the evidence standard in that it showed that the pat-down search by Officer Venticinque was constitutionally justified under Terry v. Ohio. Moreover, once the police officer recovered the weapon, he had probable cause to arrest defendant for unlawful use of weapons.

As indicated above, the sign in question stated: “For your safety, upon entry you will be check [sic] by an electronic metal detector.” The trial court found the wording of this sign to be ambiguous, and therefore, concluded that defendant had not voluntarily given his consent to be searched by the electronic device. In reaching its decision, the court relied upon State v. Carter, which held that certain signs posted at a particular rock concert were ambiguous. Those warnings stated that no alcoholic beverages, soft drinks, controlled substances or smoking were allowed in the auditorium and that people might be “checked” to see if they complied with these rules. The Iowa court held that there was no consent to random searches by armed, uniformed guards because the warning, which used the word “check,” gave no indication of an impending personal search. (267 N.W.2d 385, 387.) However, no metal detector was used in the Iowa case. We do not feel that the wording of the present signs, in question, was ambiguous, because there is only one way to be checked by a metal detector and that is by passing through its electronic beam.

Moreover, we believe it evident that defendant impliedly consented to this private check. Defendant did not testify that he could not turn around and leave at any time. It was established that people were lined up in single file going through the metal detector. Therefore, it is apparent that defendant was free to step out of line at any time if he did not wish to be checked. Defendant also failed to state that he was unable to read English or Spanish. The only conclusion that can be reached from these facts is that defendant voluntarily went through the metal detector. Since defendant’s attempt to enter the viewing area in the Aragon Ballroom manifested his willingness to submit to the check (see United States v. Doran (9th Cir. 1973), 482 F.2d 929), we must conclude that the trial court’s holding that defendant did not consent to the private search was in error.

For the foregoing reasons, the order of the circuit court of Cook County is reversed and the cause is remanded for further proceedings.

Order reversed; cause remanded.

BUCKLEY, J., concurs.

JUSTICE CAMPBELL,

dissenting:

I do not share my colleagues’ opinion that the evidence should not be suppressed and respectfully dissent. In my judgment, it necessarily follows from the majority holding that any person who activates a metal detector while attending a sporting event, concert or public event, on private property, where signs are posted advising that patrons may be checked, must automatically submit to a search by a police officer who happens to be present.

At the hearing on defendant’s motion to suppress on November 12, 1982, Officer Venticinque testified to the following additional details: that he was standing approximately three feet away from the metal detector; that he observed an individual passing through the metal detector; that he and the security personnel went up to the subject and he made a pat-down search and recovered a loaded revolver on his person. He then placed the individual under arrest. The officer indicated that he had made other arrests using metal detection equipment in the past.

On cross-examination, Officer Venticinque testified that the sign did not say that a person would be searched upon entering. The sign indicated that an individual would be checked, not searched. He did not know if defendant’s admission ticket had been surrendered before passing through the metal detector or not. At the time of this incident the lobby was crowded. When the defendant walked through the detector, the alarm sounded and the officer went over to defendant to search him. He did not have a conversation with defendant. The officer was not a specialist in metal detectors, nor was he familiar with their operating procedure. He knew that where the heavy alarm sounded, it indicated that the person had something on him that had large quantities of metal. Keys could activate a metal detector.

The record does not indicate whether the police officer was in uniform or not, and it is undisputed that the only activities engaged in by the defendant were the acts of purchasing an admission ticket to a boxing event and walking through the metal detector device to attend the event. While defendant walked through the metal detector device, the alarm sounded, and the police officer stopped and seized the defendant and performed a pat-down search. The police officer did not identify himself, and there was no conversation between the officer and the defendant. The trial court, following a hearing on the motion to suppress, determined that any implied consent of the defendant was not freely and voluntarily given.

In analyzing these facts under the Terry standards for a stop- and-frisk search, the majority concludes that “once defendant went through the metal detector and triggered the alarm because he had a large metal mass concealed on his person, Officer Venticinque had reasonable and articulable facts from which he could presume that defendant was unlawfully carrying a concealed weapon and could be considered dangerous.” From this holding, it would follow that any person activating a metal detector upon private property presents a prima facie case of specific and articulable facts, in addition to a waiver of consent, to justify a seizure and a search by police, even if such alarm is caused by keys or other metal objects unrelated to any crime or offense.

In the recent traffic stop case, People v. Long (1983), 99 Ill. 2d 219, 227, 457 N.E.2d 1252, 1255-56, our supreme court stated:

“Before the decision in Terry v. Ohio, it was considered that the restraint of any person that amounted to seizure for fourth amendment purposes was invalid unless probable cause requirements were met. (See Florida v. Royer (1983), 460 U.S. 491, 498, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324.) With Terry v. Ohio, however, the United States Supreme Court recognized a limited exception to the probable cause requirement, which was intended to allow police to briefly detain a person for investigatory purposes and, if necessary for safety, to search that person for weapons. In Terry, the court explained that the exception to the probable cause requirement would arise in cases where police conduct could be deemed reasonable because the governmental interest justifying the seizure outweighed the intrusion on the individual’s fourth amendment interests. (392 U.S. 1, 20-23, 20 L. Ed. 2d 889, 905-07, 88 S. Ct. 1868, 1879-81.) During the years since Terry, courts have used this balancing test to measure the legality of countless brief detentions by police, but the basic tenets justifying the Terry exception have remained unchanged. See United States v. Place (1983), 462 U.S. 696, 703, 77 L. Ed. 2d 110,118,103 S. Ct. 2637, 2642-43.
The Terry court provided further guidance by stating that an analysis of whether an officer’s conduct was reasonable requires a dual inquiry. The conduct constituting seizure or search must have been ‘justified at its inception, and *** reasonably related in scope to the circumstances which justified the interference in the first place.’ (392 U.S. 1, 20, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868, 1879.) To make these determinations, a court should consider whether the facts available to the police officer would warrant a man of reasonable caution to believe that the police action was appropriate. An objective standard applies, so the police officer seeking to justify the intrusion ‘must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880. See also People v. Smithers (1980), 83 Ill. 2d 430, 434; People v. Tassone (1968), 41 Ill. 2d 7,10.”

Here, the trial court found, after applying the above legal principles to the facts and circumstances of this case, that there was no justification for the search and seizure of defendant nor was there implied consent by defendant. I agree. Even if we accept the police officer’s version of the encounter, the mere activation of a metal detector by a patron on private property does not provide articulable facts to justify seizure, or an implied consent to search. The majority’s willingness to find, as a matter of law, that the police acted in a reasonable manner and that the word “check” is synonymous with the word “search” is unfounded. Moreover, implied consent is simply unsupported by the facts in this case. When the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. (Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.) Any implied consent given by defendant was insufficient to encompass the body search to which he was subjected. In my view, the police improperly seized the defendant within the meaning of the fourth amendment and consent, if any, was tainted, and the evidence should have been suppressed.

In the majority opinion numerous findings of fact have been made contrary to the explicit findings of fact made by the trial court. This entire episode appears to be predicated upon a hunch, mere suspicion, or intuition, and devoid of any specific and articulable facts to justify the warrantless seizure, search and arrest. “The inquiry must focus on what was done and known by the police, not on what was believed, what the facts objectively viewed added up to, not what the officer on the scene believed they added up to.” People v. Moody (1983), 94 Ill. 2d 1, 10, 445 N.E.2d 275, 279.

The evidence that is alleged to establish implied consent here is entirely consistent with innocent behavior. Up to the time the defendant walked through the metal detector no probable cause existed to believe that defendant was carrying a weapon. It was conceded in the testimony of the police officer that keys' could activate the alarm system. It is not unreasonable to assume that jewelry and other articles could also activate the alarm system. The police officer did not claim to have any background experience in the use of metal detectors, as in some airport encounter cases, nor were there any suspicious actions or behavior or conversation on the part of the defendant. There are no facts in the record of this case to predicate a claim of implied consent.

It was the duty of the trial court to determine objectively whether there was probable cause to arrest and implied consent to search the defendant, and it found both lacking here. A reviewing court will not disturb a trial court’s finding on a motion to suppress unless that finding is determined to be manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766; People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218, cert, denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200.) There is nothing apparently incriminating about walking through a metal detector, and there is no evidence to support the finding of implied consent as found by the majority. I would, therefore, affirm the judgment of the trial court.


author: PRESIDING JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUTH HUBER, Defendant-Appellant.
    First District (2nd Division)
    No. 83—2352
    Opinion filed February 11, 1985.
    William G. Clark, Jr., & Associates, Ltd., of Chicago (llene Davidson Johnson, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (David C. Kluever and Donna J. Johnson, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

After a bench trial, defendant Ruth Huber was found guilty of murder and sentenced to a prison term of 20 years. On appeal, she contends first that she was not proved guilty beyond a reasonable doubt; in the alternative, that she was proved guilty of no more than involuntary manslaughter; and, finally, that the trial judge committed reversible error in admitting certain hearsay evidence.

At trial, the State’s case was comprised of circumstantial evidence, based upon the testimony of two principal witnesses, that after a quarrel the defendant stabbed and killed the 66-year-old decedent, who once lived with her as a lesbian lover and had known her for many years.

Initially, police testimony established that on the evening of October 21, 1982, a long-distance telephone call from a woman in California requested an investigation of the apartment in Chicago jointly occupied by the decedent and her mentally retarded 68-year-old brother. After the brother admitted two police officers, he pointed to the living room sofa, where they found the decedent’s body. When the brother said that his sister had collapsed as they had watched television, and the police saw no blood, weapons, or other signs of a homicide, they told the caller from California that the decedent had died from natural causes.

However, an autopsy eventually disclosed two stab wounds in the decedent’s chest and lower back as the cause of death, and the police began a homicide investigation. The defendant allegedly told them that at 5 p.m. on the date of the decedent’s death, the decedent telephoned her at her apartment and invited her to dinner. The defendant said she agreed to come over after dinner. Shortly after she arrived, the decedent collapsed. She and the decedent’s brother then carried the decedent to the couch. At this point, the friend from California telephoned, and the defendant told her what had happened. The defendant then returned to her own apartment to walk her dogs, and when she returned, the police already had arrived. The police also questioned the decedent’s brother, who was “pretty upset,” and allegedly said again that his sister had collapsed while watching television. The police, however, recovered a pair of bloodstained pants belonging to the decedent’s brother and a large knife from the kitchen sink. They also took photographs showing bloodstains on the living room carpet.

The State’s first key witness, the decedent’s brother, said that he had been employed steadily for about 20 years. He said that the defendant came to the apartment after dinner on October 21, 1982, and, while he was in the kitchen, he heard his sister tell her “to get out.” When he returned, he saw his sister lying face-up on the floor. He also said that the defendant first told him that she “was sleeping,” and he helped put her on the couch; however, before she left she told him that his sister “was dead.” He further stated that she told him to wipe up the bloodstains on the carpet, and that the defendant moved the knife, which belonged neither to him nor to his sister, from the dining room table to the sink before the police arrived. He also said that he did not telephone or talk to the friend in California that night, and admitted that he did not tell the police any of this information the first two times he talked to them, though he did tell them this story when interviewed without the defendant present.

The State’s second main witness was the 63-year-old woman who had called the police from California on the night of the decedent’s death. She testified that she had known the defendant, the decedent and the latter’s brother for over 40 years. She said that she had lived with the decedent as a lesbian lover, and that the decedent had left her to move into the defendant’s home in 1956. She said that she then remained friends with the decedent, who lived with the defendant until 1982, when the decedent moved into her brother’s apartment to help take care of him after their mother died. She also said that the decedent’s brother was not “capable of getting mad” and that he “loves everyone” and never tried to hurt his sister. She stated that at 5 p.m. (Chicago time) on October 21, 1982, the decedent telephoned her to discuss vacation plans. Then, at 7 p.m., the decedent’s brother called, and she told him to get help from the neighbors. Five minutes later the defendant called, telling her that the decedent was lying on the floor. The witness told her to call her sister and then the police, but the witness then called the police herself. She also testified that both the decedent and the defendant were heavy drinkers; that they remained friends after the decedent moved out of the defendant’s house; that the decedent’s brother “was slightly retarded”; that the decedent, who did not like caring for her brother, at times “chastised” him or swore at him; and that she believed that the decedent loved the defendant. This witness also testified that over 10 years ago she had seen the defendant, who was physically larger than the decedent, ripping off the decedent’s clothes and hitting her. She further stated that the decedent “wanted to get away from” the defendant because she “was abusive,” and that the defendant was still in love with the decedent when she had moved out.

Over objection from defense counsel, the witness also testified that in telephone conversations, including one on the day of her death, the decedent had told her that the defendant had threatened her with violence, stating that the decedent said that on that day the defendant “had been quite violent” and had been willing to go to extreme lengths to get her to return, and told her “to move back with her.” Defense counsel objected to this line of testimony as inadmissible hearsay; however, the trial judge stated that defense counsel had opened this line of questioning, and ruled that the hearsay testimony was relevant only as to “state of mind” at the time of the occurrence, and not to the truth of the matter asserted.

The primary witness for the defendant was her sister, who said that she had known the decedent and her brother for about 30 years. She testified that the decedent never showed any love for her brother and physically punished him and swore at him when he misbehaved. She also said that the decedent once threatened to kill her brother about seven years ago when he got lost, and that he feared her.

We must agree with the defendant’s contention that the trial judge’s ruling permitting the introduction of hearsay evidence of the contents of the decedent’s telephone conversations with her friend in California, especially on the day of her death, was reversible error. Initially, we do note that the trial judge explicitly stated, both during the testimony in question and in his summation before he entered his finding, that he did not admit the testimony for the purpose of proving the truth of the matter asserted, i.e., whether the defendant had threatened the decedent with violence on the day of her death. Rather, the testimony was admitted only to show “state of mind” at the time of the occurrence. In this regard, we also note that there is some ambiguity, both in the briefs and in the record and on the parts of both counsel and the trial judge, as to precisely whose state of mind was at issue here — that of the decedent, or that of the witness (the caller from California).

In any event, we agree with the defendant that the trial judge erred in admitting this testimony. Although “statements which indicate the declarant’s state of mind are admissible as exceptions to the hearsay rule when the declarant is unavailable to testify and there is a reasonable probability that the proffered hearsay statements are truthful” (People v. Floyd (1984), 103 Ill. 2d 541, 546, 470 N.E.2d 293), such statements “must be relevant to a material issue in the case” in order to be admissible (103 Ill. 2d 541, 546). In the instant case, the state of mind of the witness was clearly irrelevant, the relevant facts being simply that she called the police and that the defendant did not. Likewise, because the decedent’s state of mind was not at issue here, the witness’ testimony as to what the decedent told her about the defendant’s actions — he., threats of violence — also was irrelevant.

The defendant does not claim that the decedent in the instant case died as the result of accident or suicide, nor does she claim that she killed the decedent in self-defense. There is no question here that the decedent was murdered. Therefore, statements regarding the decedent’s fear of the defendant served no purpose other than to permit the inference that the defendant was guilty of that murder. (People v. Floyd (1984), 103 Ill. 2d 541, 546; People v. Coleman (1983), 116 Ill. App. 3d 28, 33-34, 451 N.E.2d 973.) The statements were therefore improperly admitted.

We cannot conclude, as the State invites us to do, that this improper admission of hearsay evidence was harmless error. Undeniably, the testimony here was extremely damaging to the defendant; it suggested that the defendant had been “quite violent,” and was ready to go to extreme lengths to have the decedent move in with her again, and that these circumstances existed even on the very day of the killing. This was the only testimony establishing with any specificity the status of the relationship between the defendant and the decedent on that critical day, and it was also the only testimony indicating that the defendant threatened, felt violent toward, or was predisposed to act violently toward the decedent on the day of her death. Yet, the defendant had no opportunity to cross-examine the decedent on the circumstances or veracity of that damaging hearsay statement.

Despite the trial judge’s statements that he did not consider this evidence for the purpose of determining the truth of the matter asserted and accepted it only for a restricted purpose, we are not convinced that prejudice did not result from his ruling. This is not a case where a judge weighed whether ordinarily admissible evidence should be rejected because of its prejudicial effect. Rather, the judge here admitted ordinarily inadmissible evidence for an incorrect reason. Thus, not only was the evidence admitted improperly, but it was admitted despite its clearly prejudicial side effect. Regardless of the trial judge’s comments that he was admitting the evidence for a restricted purpose, in the interest of justice we cannot afford to indulge in the usual presumption that he was not paying any attention to this hearsay testimony, in the case of a murder trial where the State and the trial judge himself correctly agreed that the evidence against the defendant was circumstantial. This improperly admitted hearsay testimony, which was referred to by the State in its closing argument, might well have been the linchpin which ultimately locked in the judge’s determination as to guilt or innocence. Under these circumstances, we cannot say that the error here was harmless beyond a reasonable doubt. See People v. Fair (1977), 45 Ill. App. 3d 301, 359 N.E.2d 848; People v. Trotter (1975), 27 Ill. App. 3d 136, 326 N.E.2d 524; People v. Rice (1972), 5 Ill.App. 3d 18, 282 N.E.2d 526.

Because of the erroneous admission of the hearsay testimony, this case must be reversed and remanded for a new trial. The need for a new trial makes it inappropriate for this court to express its opinion as to the issues raised on appeal regarding the defendant’s guilt or innocence. We would merely comment that, under People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366, we do not believe that the properly admissible evidence was insufficient, if believed, to warrant a reversal or reduction of the offense based on that evidence.

Accordingly, the judgment of the circuit court is hereby reversed and the cause remanded for a new trial.

Reversed and remanded.

PERLIN and BILANDIC, JJ., concur.