{ "id": 2991096, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MORTON WALKER, Defendant-Appellant", "name_abbreviation": "People v. Walker", "decision_date": "1993-09-29", "docket_number": "No. 1\u201491\u20141773", "first_page": "10", "last_page": "22", "citations": [ { "type": "official", "cite": "255 Ill. App. 3d 10" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "193 N.E.2d 797", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill. 2d 197", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2823770 ], "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0197-01" ] }, { "cite": "557 N.E.2d 235", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2484464 ], "year": 1963, "pin_cites": [ { "page": "957" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0954-01" ] }, { "cite": "561 N.E.2d 1347", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "204 Ill. App. 3d 681", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2576821 ], "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0681-01" ] }, { "cite": "532 N.E.2d 587", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 679", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3622385 ], "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0679-01" ] }, { "cite": "576 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "215 Ill. App. 3d 849", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5294718 ], "pin_cites": [ { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0849-01" ] }, { "cite": "604 N.E.2d 1117", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "237 Ill. App. 3d 688", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5163693 ], "weight": 2, "pin_cites": [ { "page": "698" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0688-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "585 N.E.2d 1274", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 542", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5252176 ], "weight": 3, "pin_cites": [ { "page": "556" }, { "page": "550" }, { "page": "552", "parenthetical": "issue based upon section 115 - 10 jury instruction requirement waived due to failure to raise in a post-trial motion" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0542-01" ] }, { "cite": "559 N.E.2d 1158", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 495", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2586961 ], "weight": 2, "pin_cites": [ { "page": "500" }, { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0495-01" ] }, { "cite": "576 N.E.2d 37", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "215 Ill. App. 3d 751", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5294845 ], "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0751-01" ] }, { "cite": "381 N.E.2d 677", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "72 Ill. 2d 421", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443843 ], "year": 1991, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0421-01" ] }, { "cite": "858 F.2d 16", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10523925 ], "opinion_index": 0, "case_paths": [ "/f2d/858/0016-01" ] }, { "cite": "586 N.E.2d 1384", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5251318 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/1065-01" ] }, { "cite": "578 N.E.2d 942", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "144 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592943 ], "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0001-01" ] }, { "cite": "549 N.E.2d 240", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. 2d 226", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260218 ], "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0226-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "pin_cites": [ { "page": "696" }, { "page": "696" }, { "page": "2069" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "525-27" }, { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] } ], "analysis": { "cardinality": 1049, "char_count": 26235, "ocr_confidence": 0.771, "pagerank": { "raw": 4.7817273071113374e-08, "percentile": 0.29973755226656074 }, "sha256": "637194e53d70e8e5a8b06cb79048b1f0e3a0a8d7039109418f769f7a154bf473", "simhash": "1:2ba636b432c4fc57", "word_count": 4344 }, "last_updated": "2023-07-14T21:02:11.364828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MORTON WALKER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nDefendant Morton Walker was convicted of aggravated criminal sexual assault of a nine-year-old female and sentenced to 20 years\u2019 imprisonment.\nDefendant contends (1) he was denied effective assistance of counsel because of numerous errors by his trial attorney; (2) the court erred in admitting hearsay evidence of the victim\u2019s statements to several people about the assault; (3) the trial court erred in sentencing by considering the victim\u2019s age as an aggravating factor; and (4) the trial court showed bias against defendant when it refused to appoint a public defender or allow a withdrawal or substitution of counsel.\nWe affirm the conviction and sentence.\nThe victim, S.B., lived with her mother and six brothers and sisters in April 1990, when the incidents occurred. Although defendant was not S.B.\u2019s biological father and did not live at the victim\u2019s house, the defendant and S.B.\u2019s mother had five children together, and S.B. identified the defendant as her father.\nS.B. testified that on or about April 22, 1990, S.B. was home alone with defendant when he asked her to go into her mother\u2019s bedroom to \u201cscratch his head.\u201d In the bedroom, defendant removed S.B.\u2019s panties, unzipped his own pants and put his \u201cprivacy\u201d into her \u201cprivacy\u201d and into her mouth. S.B. testified that he did the same thing to her again two more times that day. He cautioned her not to tell anybody or he would whip her.\nWhen shown anatomical dolls at trial, S.B. identified the male \u201cprivacy\u201d as the penis and the female \u201cprivacy\u201d as the vagina. S.B. testified that she told her mother, her brother, police and doctors about the incidents. S.B. also stated that defendant had visited her several months before the trial and again the day before she testified at trial, and told her \u201cto tell them that some big boys had did that to me [sic].\u201d On cross-examination, S.B. testified that all three incidents had occurred on a Sunday, which she remembered because she watched a certain weekly television program that evening. She stated that she told her mother about the incidents the day after they occurred.\nWillie B., S.B.\u2019s 12-year-old brother, testified that on April 22, 1990, he saw S.B. in his mother\u2019s bedroom, watching television while defendant was lying on the bed. Willie left when defendant told him to look for his mother. When he returned, he saw S.B. in the bedroom with defendant, scratching his head. Willie left again to return to find S.B. lying on the bed, crying. Willie then saw defendant standing in the closet with his pants unzipped and his penis exposed. While Willie did not observe defendant having contact with S.B., she later told him what had occurred in his absence.\nCatherine Lachenauer was a doctor working in the emergency room of the hospital on Thursday, April 26, 1990, when S.B. was admitted. S.B. told her that her father had \u201cput his thing\u201d \u201cin my stuff\u201d three times and that he had also \u201cmade me suck his privates.\u201d The doctor found that S.B.\u2019s vaginal area was red, her hymenal wall was thin and there was a grayish discharge. The doctor found S.B.\u2019s hymenal opening to be enlarged, indicating trauma. Dr. Lachenauer stated that the results of her examination of S.B. were abnormal and \u201cvery supportive of a diagnosis of sexual abuse.\u201d\nOn cross-examination, Dr. Lachenauer admitted that S.B. had informed her that the three assaults occurred on different days, and the only date S.B. specified was \u201cthe day before yesterday,\u201d which would have been Tuesday, April 24, 1990. The doctor acknowledged that there was no way to determine when the alleged abuse occurred or for how long the hymenal opening had been enlarged.\nPolice officer Thomas Scott testified that on April 26, 1990, he investigated a dispatch call concerning a rape victim, and after interviewing S.B. and her mother, arrested defendant. On cross-examination, Officer Scott testified that S.B. told him the assaults occurred on Tuesday, April 24, 1990, and that her mother told him the incidents occurred on more than one date.\nDr. Carl Turner testified for the defense as an expert in gynecology, stating that hymenal openings can vary from child to child, and that S.B.\u2019s enlarged opening does not by itself indicate abuse. On cross-examination, Dr. Turner admitted he had not examined S.B., nor had he spoken with her or her doctor. He further admitted to being the brother of defense counsel; that he had been arrested for unlawful use of a weapon; and that his driver\u2019s license was suspended because he provided false information on the application.\nDefendant testified that on April 26, 1990, he arrived at S.B.\u2019s apartment at approximately 8:30 a.m., gave S.B.\u2019s mother $30, and told S.B. to stay home from school so he could buy her new shoes. He left the apartment, returning at about 5 p.m. to sleep on the couch, and was awakened two hours later by police who arrested him. Defendant denied ever assaulting S.B. in any way and denied telling S.B. to testify that \u201csome big boys\u201d had assaulted her. In rebuttal, the State impeached defendant with a misdemeanor theft conviction, after which defendant testified that he pleaded guilty to the theft of a car battery from an abandoned car.\nDefendant first contends that he was denied effective assistance of counsel since his attorney: failed to adequately prepare for trial; destroyed defense credibility by calling as an expert witness counsel\u2019s brother, who was improperly impeached; failed to deliver a promised defense; failed to object to the victim\u2019s hearsay testimony; and failed to elicit defendant\u2019s theft conviction during direct examination.\nA two-pronged test governs ineffective assistance of counsel claims: (1) counsel\u2019s performance must fall well below an objective standard of reasonableness, and (2) there must be a reasonable probability that but for counsel\u2019s errors, the result of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525-27, 473 N.E.2d 1246.) A \u201creasonable probability\u201d is a probability that undermines confidence in the jury\u2019s verdict. Strickland v. Washington (1984), 466 U.S. 668, 696, 80 L. Ed. 2d 674, 696, 104 S. Ct. 2052, 2069.\nA reviewing court will apply the test in light of all relevant circumstances and under a strong presumption of adequacy and reasonableness. (People v. Barrow (1989), 133 Ill. 2d 226, 247, 549 N.E.2d 240.) Such examination of counsel\u2019s representation does not generally review matters of judgment, discretion, or trial tactics or strategy. (People v. Pecoraro (1991), 144 Ill. 2d 1, 13, 578 N.E.2d 942.) A court may dispose of an ineffective assistance of counsel claim for lack of sufficient prejudice before it ever reaches the deficiency analysis. Albanese, 104 Ill. 2d at 527.\nWe find no merit in defendant\u2019s claim of ineffective assistance of counsel.\nDefendant contends that in opening argument his counsel promised the jury he would raise a particular line of defense:\n\u201cYou will hear some testimony about where [S.B.] fits into the family scheme, third child, fourth child. I\u2019m almost sure that will come out. Is that all that leads up to April 24th? Sometime, somewhere down the line, she is the second child or the first female. Is that all or was [sic] there other things that lead up to it?\nThe evidence will show you some aspects of that family life that led to the charges.\u201d\nDefendant claims this statement indicates that counsel would present evidence that S.B.\u2019s mother had tried in the past to remove defendant from the household and that S.B.\u2019s charges were part of that scheme, or that S.B.\u2019s birth order would somehow be linked to the charges.\nWe find the statement promises no such defense. At most, the garbled language appears to be an attempt to introduce the jury to the relationship between S.B.\u2019s mother and defendant and the fact they had several children together, although S.B. was not one of them. We distinguish the cases defendant cites, where they involve counsel\u2019s failure to produce promised evidence regarding the existence of another suspect (People v. Ortiz (1992), 224 Ill. App. 3d 1065, 586 N.E.2d 1384), and counsel\u2019s failure to produce the promised expert\u2019s testimony regarding defendant\u2019s state of mind. Anderson v. Butler (1st Cir. 1988), 858 F.2d 16.\nContrary to those cases, we find that counsel here did not promise a \u201cdefense\u201d but, at most, attempted to convey that the family relationships were disjointed. Further, the jury was informed that opening statements were not evidence and anything not in evidence should be disregarded.\nThe evidence appears overwhelming: (1) although S.B. was inconsistent or confused as to the date or dates the incidents occurred, she never wavered in her claim that on three occasions, defendant assaulted her by having intercourse with her and by making her perform fellatio on him; (2) S.B.\u2019s allegations were corroborated by Dr. Lachenauer, who deemed her physical condition \u201cvery supportive of a diagnosis of sexual abuse\u201d; and (3) S.B.\u2019s 12-year-old brother corroborated her testimony by stating that he saw S.B. and the defendant in the bedroom, then saw S.B. lying on the bed crying while the defendant stood in the closet with his pants unzipped and his penis exposed; and S.B. later told her brother that she was crying because defendant assaulted her.\nDefendant next contends he was denied effective assistance of counsel because his attorney employed his brother as an expert witness at trial. Defendant contends the jurors would have to assume that counsel called his brother to testify because no other qualified gynecologist would testify for defendant and thus conclude that the entire defense lacked integrity or credibility.\nWe disagree. Defense counsel\u2019s brother, Dr. Carl Turner, was an experienced gynecologist who had testified as an expert witness in numerous trials, although never for defense counsel. Dr. Turner directly challenged the testimony of the victim\u2019s expert by stating that the measurement of the victim\u2019s hymenal opening indicates nothing because it is not known what its measurement was prior to the allegations, and stated that the irritation in the vaginal area could have been caused by masturbation.\nWe find that such a decision to retain Dr. Turner as an expert was a tactical or strategic decision, and further, defense counsel may have been very well aware of the witness\u2019 prior conviction, but believed his testimony would be worth the risk that the State might attempt to bring in an outdated conviction. We cannot say that retaining defense counsel\u2019s brother as an expert witness fell below an objective standard of reasonableness, and we are certainly unwilling to say that there is a reasonable probability that but for that action, the result would have been different.\nDefendant claims that it was ineffective assistance of counsel to allow the State to impeach Dr. Turner by inquiring whether Dr. Turner had ever been arrested for unlawful use of weapons, and he acknowledged that he had. While the State never cross-examined Dr. Turner as to the date of his arrest or whether he was convicted, defendant states in his post-trial motion that Dr. Turner was convicted of the crime more than 10 years prior to his testimony here.\nDefendant contends counsel was ineffective either in failing to object to an arrest as the basis of impeachment, or failing to inquire or insist that the State establish that he was convicted within the permissible 10-year time frame for impeachment purposes.\nAlthough it must be conceded that such impeachment was improper, we find there was no basis for determining ineffective assistance of counsel in this instance.\nA defense counsel\u2019s failure to object to evidence does not, in and of itself, establish incompetence. (People v. Murphy (1978), 72 Ill. 2d 421, 438, 381 N.E.2d 677; People v. Thomas (1991), 215 Ill. App. 3d 751, 762, 576 N.E.2d 37.) Even if we were to find that defense counsel\u2019s representation fell below an objective level of competence, the evidence here is not closely balanced and had the evidence of conviction been excluded, we do not believe that the jury\u2019s verdict would have been different.\nDefendant next contends that he was denied effective assistance when counsel failed to object to alleged hearsay testimony of S.B.\u2019s statements to her mother, brother and the police about the incidents. He argues that the trial court first failed to hold a statutorily required hearing to determine that the circumstances surrounding the statements insured their reliability (Ill. Rev. Stat. 1991, ch. 38, par. 115 \u2014 10(b)(1)), and then, when the statements were admitted, the court failed to specifically instruct the jury as to the factors to consider in determining the weight and credibility of the statements. (Ill. Rev. Stat. 1991, ch. 38, par. 115 \u2014 10(c).) Defendant contends he was prejudiced by counsel\u2019s failure either to object to the complaints or to request the statutory instruction.\nWhere a declarant is available in court or there is an opportunity to ascertain the veracity of the testimony by cross-examination, there is no hearsay issue. People v. Williams (1990), 202 Ill. App. 3d 495, 500, 559 N.E.2d 1158.\nDefendant in Williams charged ineffective assistance of counsel where defense counsel failed to object to the testimony of an 11-year-old sexual assault victim who testified that she told her mother that defendant had assaulted her. The court found no hearsay problem since the victim was subject to cross-examination, and also found that even if defense counsel had objected, there was no reasonable probability that defendant would have been found not guilty. Williams, 202 Ill. App. 3d at 500.\nA similar situation obtains in the present case, where S.B. testified in court and thus was available for cross-examination. Defense counsel thoroughly cross-examined S.B. regarding her statement, other evidence overwhelmingly corroborated her statement, and even if counsel had objected we cannot say there was a reasonable probability that but for counsel\u2019s error, the result would have been different.\nWe also find it was not ineffective assistance of counsel when defense counsel failed to request that the section 115 \u2014 10(c) instruction be given for a child witness in a sexual assault case. That instruction states:\n\u201cIf a statement is admitted *** the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 115 \u2014 10.\nThe standard pattern instruction given advised the jury to consider the witness\u2019 ability and opportunity to observe, and to consider the witness\u2019 memory. (Illinois Pattern Jury Instructions, Criminal, No. 1.02 (2d ed. 1981).) From this, the jury could have considered any alleged problems with the victim\u2019s testimony: her age, memory or any alleged \u201cconfusion\u201d as to the timing of the incidents.\nAlthough a section 115 \u2014 10(c) instruction would have been appropriate, the jury was still instructed to consider possible flaws in the victim\u2019s testimony and defendant was not denied any substantial right. See People v. Booker (1992), 224 Ill. App. 3d 542, 556, 585 N.E.2d 1274.\nDefendant also complains that defense counsel \u201cembarrassed\u201d defendant by failing to elicit defendant\u2019s prior felony conviction on direct examination, leaving the State to question him about it on cross-examination, and making it appear that the defense attempted to conceal the conviction. Defendant contends that this failure contributed to ineffective assistance of counsel.\nAlthough anticipatory disclosure of convictions is allowed to deflect its prejudicial impact, we do not find that failure to do so amounts to ineffective assistance of counsel. This incident is a minor one in a case where the evidence is not closely balanced.\nDefendant also expresses concern that there were discrepancies in both S.B.\u2019s and her brother\u2019s testimony as to the timing of the incidents. However, any shortcomings in a victim\u2019s testimony do not destroy credibility but merely affect the weight to be afforded to the testimony by the trier of fact. Booker, 224 Ill. App. 3d at 550.\nAs we have stated, S.B.\u2019s material allegations of the assaults did not waver at trial; her allegations were corroborated by Dr. Lachenauer\u2019s testimony and by her brother\u2019s testimony. Any minor discrepancies as to dates or time were taken into account by the jury when it weighed the witnesses\u2019 testimony.\nFurther, the trial court stated at the sentencing hearing that defendant was vigorously represented and that defense counsel was a strong advocate who represented defendant\u2019s position \u201cvery forcefully and at every opportunity.\u201d We find no ineffective assistance of counsel.\nDefendant next charges that it was reversible error for the trial court to admit S.B.\u2019s statements made to her mother, brother and the police about the incidents. Defendant argues such statements were not attended by circumstances which allow their admission as exceptions to the hearsay rule, nor were the statutory requirements of section 115 \u2014 10 fulfilled in order to admit them.\nSection 115 \u2014 10 provides that in a prosecution for a sexual act perpetrated upon a child under the age of 13, certain evidence may be admitted as an exception to the hearsay rule:\n\u201c(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and\n(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.\n(b) Such testimony shall only be admitted if:\n(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and\n(2) The child either:\n(A) Testifies at the proceeding; or\n(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.\n(c) If a statement is admitted *** the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 115 \u2014 10.\nHere, defendant failed to raise an objection at trial or in his post-trial motion to the alleged hearsay testimony and he has waived this issue on appeal. People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124; People v. Dugan (1992), 237 Ill. App. 3d 688, 698, 604 N.E.2d 1117 (while no section 115 \u2014 10 hearing was held, defendant waived the issue since he failed to request a hearing or object to its absence during trial or post-trial motions); Booker, 224 Ill. App. 3d at 552 (issue based upon section 115 \u2014 10 jury instruction requirement waived due to failure to raise in a post-trial motion); People v. Mitchell (1991), 215 Ill. App. 3d 849, 859, 576 N.E.2d 78 (contention of an improper section 115 \u2014 10 hearing was waived due to failure to raise in post-trial motion).\nWe decline to review this issue under the plain error doctrine since we have found the evidence is not closely balanced, nor do we find defendant was denied a fair trial. Dugan, 237 Ill. App. 3d at 698; People v. Bailey (1988), 177 Ill. App. 3d 679, 682, 532 N.E.2d 587.\nDefendant next charges that the trial court improperly considered the victim\u2019s age as an aggravating factor in sentencing.\nIn sentencing defendant, the court stated that it had taken into account the presentence report:\n\u201cTHE COURT: But we also take into account the seriousness of this offense and based upon all of those things the Court is going to \u2014 the Court is going to impose a sentence\u2014 it will be an extended term. I believe that there\u2019s a basis for that.\nJust one second.\nOkay, this is \u2014 I\u2019m referring specifically to Chapter 38, section 1005 \u2014 5\u20143.2b, four, one, if the Defendant is convicted of a felony against a person under twelve years of age \u2014 I think that that is certainly an ample basis under the circumstances.\nSo, there will be an extended term. The sentence will be twenty years.\nProsecutor: Excuse me, Your Honor *** I\u2019m confused. The maximum normal sentence for this would be thirty years. This is a Class X felony, right?\nTHE COURT: I\u2019m sorry. I\u2019m looking at \u2014 excuse me, I\u2019m looking at the wrong one. I\u2019m looking at a Class One. It\u2019s not an extended term. It is within the term but the sentence will be twenty years.\nIt\u2019s not under the extended term.\nThe sentence will be twenty years in the Illinois Department of Corrections followed by three years of mandatory supervised release.\u201d\nWe note that defendant also failed to raise this issue at trial or in his post-trial motion, which denied the trial court an opportunity to sustain an objection or remedy an error; thus, the issue is considered waived. Enoch, 122 Ill. 2d at 186.\nFurther, if we were to determine this issue, we would find it clear that the trial judge considered proper factors in aggravation and in mitigation, and that the court was merely reading aloud what it thought was the applicable section of the statute which would apply to defendant\u2019s situation. While the section read does refer to the victim\u2019s age, when the court realized that it could give defendant an even harsher sentence than he received, it refrained from doing so, and nothing in the record indicates that consideration of the victim\u2019s age denied defendant justice or was a factor in the sentence given.\nFinally, defendant contends he was denied a fair trial because the trial court refused to appoint a public defender; refused to allow uncompensated private defense counsel to withdraw as the attorney of record; and refused to allow another attorney to substitute as attorney of record during post-trial proceedings.\nWhile an indigent defendant is entitled to representation by court-appointed counsel, where a defendant has some assets or funds available, the determination of indigence is left to the sound discretion of the trial court. People v. Kennedy (1990), 204 Ill. App. 3d 681, 685, 561 N.E.2d 1347.\nIn the case at bar, defense counsel had represented defendant for three months when he requested leave to withdraw on grounds that defendant did not have sufficient funds to pay his fees. At the hearing to determine if defendant was entitled to a public defender, it was learned that defendant was released on a $50,000 bond, but apparently the money was not available to be used for attorney fees. The public defender\u2019s office objected to representing a person who had such resources, and the court continued the motion twice.\nAfter the continuation of the motion, counsel represented defendant on several court dates and never raised the issue of obtaining new counsel. On the day set for jury trial, four months after the last hearing on the issue, counsel advised the court of its desire to withdraw due to defendant\u2019s inability to pay his fees.\nWe do not find the trial court\u2019s determination that defendant was not entitled to a public defender to be an abuse of discretion. There was $5,000 available for a defense, counsel continued to represent defendant without further raising the issue of new counsel and advised the trial court on several occasions that he would soon be ready for trial.\nFurther, we find no error in the court\u2019s refusal to allow defense counsel to withdraw and to subsequently appoint substitute counsel.\nThe right to choose one\u2019s own attorney is limited and must be balanced against the public need for the efficient administration of criminal justice. (People v. Phelps (1990), 197 Ill. App. 3d 954, 957, 557 N.E.2d 235.) A motion for leave to withdraw for any reason is addressed to the sound discretion of the trial court. People v. Catalano (1963), 29 Ill. 2d 197, 204, 193 N.E.2d 797.\nHere, defense counsel offered no good cause for the substitution of attorneys at the sentencing stage of the proceedings. The court refused to substitute counsel since the proposed substitute counsel had failed to appear prior to arguments on the motion for new trial, and found that attempts to substitute after arguments had begun were dilatory.\nWe do not find such determinations to be an abuse of discretion. Further, we find that defendant received a fair and impartial hearing by competent counsel, notwithstanding defense counsel\u2019s contempt citation for leaving the courtroom after the jury instructions conference had concluded although the court requested that he not do so. As we have noted, the trial court stated at the sentencing hearing that defendant was vigorously represented and that defense counsel was a strong advocate who represented defendant\u2019s position \u201cvery forcefully and at every opportunity.\u201d\nWe also note that the parties agree that the order of sentence should be corrected to reflect defendant\u2019s single conviction for violation of section 12 \u2014 14(b)(1) (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14(b)(1)) rather than a conviction under 12 \u2014 14(a)(2) (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14(a)(2)), where 12 \u2014 14(b)(1) provides that an aggravating factor of criminal sexual assault occurs if the defendant was over 17 years of age and the victim was under 13 years of age at the time of the assault.\nFor all of the foregoing reasons, the trial court\u2019s determination is affirmed.\nAffirmed.\nTULLY, P.J., and RIZZI, J., concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Richard S. Connors, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and Annette Collins, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MORTON WALKER, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201491\u20141773\nOpinion filed September 29, 1993.\nRichard S. Connors, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and Annette Collins, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0010-01", "first_page_order": 30, "last_page_order": 42 }