{ "id": 8499181, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY RENSLOW, Defendant-Appellant", "name_abbreviation": "People v. Renslow", "decision_date": "1981-07-14", "docket_number": "No. 80-219", "first_page": "288", "last_page": "295", "citations": [ { "type": "official", "cite": "98 Ill. App. 3d 288" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "336 N.E.2d 354", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 404", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2795712 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0404-01" ] }, { "cite": "397 N.E.2d 888", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 902", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5605750 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0902-01" ] }, { "cite": "385 N.E.2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 379", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3309467 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0379-01" ] }, { "cite": "370 N.E.2d 1219", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3400945 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/1027-01" ] }, { "cite": "219 N.E.2d 475", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379840 ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0062-01" ] }, { "cite": "380 N.E.2d 1102", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 64", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3332885 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0064-01" ] } ], "analysis": { "cardinality": 719, "char_count": 17943, "ocr_confidence": 0.851, "pagerank": { "raw": 1.3066139474722873e-07, "percentile": 0.6235035324453279 }, "sha256": "97f8dde2ca97b2f1013c1ede0a258ef1a6f019bfc5e0bebaa4f1c0e2951f3f04", "simhash": "1:b28aabe2f228db3d", "word_count": 2969 }, "last_updated": "2023-07-14T20:11:15.436815+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALLOY and BARRY, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY RENSLOW, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE STOUDER\ndelivered the opinion of the court:\nDefendant, Terry Renslow, appeals from his conviction of one count of attempt (murder) and two counts of aggravated battery following a jury trial in the circuit court of Will County.\nOn December 9,1977, Donald Nickel was at home when his door bell rang. Nickel went to the door, observed through a side window that there was a man outside, and opened the door. As he opened the door, he saw a second man a few feet away. The man at the door asked if he was Don Nickel, he said he was, and the man stabbed him in the stomach. Nickel staggered back, turned, and the man stabbed him in the back. Nickel shouted \u201cOh, my God, Tut,\u201d and the men fled. Nickel was then taken to the hospital. While Nickel was in the hospital two police officers visited him and showed him five photographs. He looked at the photographs for about one. minute and identified the picture of Terry Renslow as that of his assailant.\nPrior to his first trial, defendant made a motion requesting that Nickel be hypnotized for the purpose of discovering whether Nickel\u2019s identification of the defendant was accurate. This motion was denied. The first trial ended in a mistrial. Subsequently, the State was granted leave to file an additional information charging defendant with two counts of aggravated battery.\nPrior to the second trial the State and the defendant entered into a plea agreement which was submitted to the trial judge for his approval on December 26,1979. However, since the agreement failed to provide for a sentence of imprisonment, the trial judge refused to accept the agreement. An immediate oral motion for substitution of judge was then denied.\nOn March 10, 1980, the day set for the commencement of the retrial, the defendant again moved to have Nickel hypnotized, which motion was denied. The defendant then filed a written motion for substitution of judge, but this motion was also denied. The trial was conducted, and the jury tendered verdicts of guilty on each count. The trial judge vacated the aggravated battery findings and sentenced the defendant on the attempt (murder) charge only.\nOn appeal, the defendant raises five issues: (1) whether the defendant was subjected to double jeopardy by the charging of two additional counts of aggravated battery after the first trial had ended in a mistrial; (2) whether the trial court erred in denying defendant\u2019s motion for substitution of judge; (3) whether the trial court erred in denying the defendant\u2019s motion to have Nickel hypnotized; (4) whether the trial court erred in restricting cross-examination of Nickel; and (5) whether the prosecutor\u2019s closing argument was so inflammatory and prejudicial that it denied the defendant a fair trial. We affirm.\nWe first address the issue of whether or not the defendant was subjected to double jeopardy by the charging of the two additional counts of aggravated battery. Defendant contends that because he was only charged with attempt (murder) at his first trial, the State cannot charge him with two additional crimes after the first trial ends in a mistrial. Defendant argues that all the possible charges must be brought against him prior to the first trial because to bring new charges after one trial has already been held would subject the defendant to double jeopardy.\nWe believe that in the case at bar, the defendant was not subjected to double jeopardy. In addition to attempt (murder), the defendant was charged with two counts of aggravated battery. It is well established that aggravated battery is a lesser included offense of attempt (murder) when both offenses arise from a single incident. (People v. Brock (1978), 64 Ill. App. 3d 64, 380 N.E.2d 1102.) At the defendant\u2019s first trial, it would have been perfectly proper for the trial judge to instruct the jury on aggravated battery as a lesser-included offense of attempt (murder) even though the defendant was not formally charged with aggravated battery. At the defendant\u2019s second trial, the trial judge could again have properly instructed the jury on aggravated battery as a lesser-included offense, and the jury could have found him guilty of aggravated battery even if the defendant had not been formally charged. Therefore, we see no prejudice resulting to the defendant from the fact that he was additionally charged with two counts of aggravated battery prior to the second trial.\nSuch a holding is consistent with existent case law. In People v. Miller (1966), 35 Ill. 2d 62, 219 N.E.2d 475, the court dealt with a situation virtually identical to the case at bar. In Miller, the defendants were indicted for rape. Following a mistrial, the rape indictment was dropped upon the State\u2019s motion and the grand jury returned a new indictment for rape of the same person and taking indecent liberties and contributing to the sexual delinquency of the person, who was a minor. The supreme court, in addressing the issue of whether the additional counts should have been dismissed, held that there was nothing in the Illinois statutes which prevented the State from charging the defendants with the additional offenses, even though they were based on the same act and were known to the prosecution at the time the first indictment was brought. In view of the court\u2019s holding in Miller, we find no error in adding the two charges of aggravated battery prior to the second trial.\nDefendant\u2019s second issue is whether the trial court erred in denying the defendant\u2019s motion for substitution of judge. After the defendant\u2019s first trial ended in a mistrial, the State and the defendant entered into a plea agreement which was submitted to the trial judge for his approval on December 26, 1979. However, because the agreement failed to provide for a sentence of imprisonment, the trial court refused to concur in the agreement. An immediate oral motion for a substitution of judge was then denied. On March 11,1980, just prior to the beginning of the second trial, the defendant filed a written motion for substitution of judge. The judge heard arguments by counsel and denied the motion.\nSection 114 \u2014 5(c) of the Criminal Code reads in pertinent part:\n\u201c[A]ny defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion.\u201d (Ill. Rev. Stat. 1979, ch. 38, par. 114 \u2014 5(c).)\nDefendant claims that because the hearing on the motion in the case at bar was heard by the trial judge and not another judge, the provisions of section 114 \u2014 5(c) were violated and he did not receive a fair trial.\nThe problem with the defendant\u2019s argument is that there is no evidence that the defendant moved for a substitution of judge under section 114 \u2014 5(c). The oral motion for substitution did not refer to this section nor did the defendant request that another judge conduct the hearing on the motion. Neither did the defendant\u2019s written motion refer to this section or request that another judge conduct the hearing. Therefore, we do not believe defendant brought these motions under section 114 \u2014 5(c) and any argument pertaining to that section is waived.\nWe believe that defendant\u2019s motion was brought pursuant to section 114 \u2014 5(a), which reads in pertinent part:\n\u201cWithin 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further but shall transfer it to another judge not named in the motion.\u201d HI. Rev. Stat. 1979, ch. 38, par. 114 \u2014 5(a).\nIt is clear that the defendant did not move for a substitution of judge within 10 days after the cause had been placed on the trial judge\u2019s call. Thus, he was not entitled to a substitution as of right. Therefore, for the defendant to prevail on this point, he must show actual prejudice on the part of the trial judge. We do not believe he has done so.\nThe defendant claims the judge was prejudiced against him because the judge refused to accept the plea agreement. We believe this is insufficient to establish prejudice. In denying the defendant\u2019s motion for substitution, the trial judge emphasized that he did not know whether or not the defendant had committed the crime. The trial judge stated that he rejected the plea agreement solely because no matter who committed the crime, the crime was serious enough to warrant a term of imprisonment. The defendant has presented no evidence to rebut this statement nor does he present any other evidence of prejudice.\nFurther, the defendant did not make his motion for substitution until after the judge had made substantive rulings against the defendant. Thus, his motion was not timely. (People v. Graves (1977), 54 Ill. App. 3d 1027, 370 N.E.2d 1219.) For these reasons, we believe there was no error in the trial judge\u2019s denying the defendant\u2019s motion for substitution of judge.\nDefendant\u2019s third issue is whether the trial court erred in denying the defendant\u2019s motion to have the complaining witness hypnotized. Prior to his first trial, defendant made a written motion requesting the court to order that Nickel be hypnotized. After argument, the motion was denied. Prior to the second trial the motion was renewed and denied. Defendant contends that hypnosis would have improved the defendant\u2019s memory regarding his identification of his assailant. Therefore, defendant argues, denying the motion was an abuse of the trial court\u2019s discretion and denied him due process. We find no merit in the defendant\u2019s argument.\nHypnosis is not specifically covered in the Illinois discovery rules. However, Supreme Court Rule 412(h) (III. Rev. Stat. 1979, ch. 110A, par. 412(h)) gives the trial court a certain amount of discretion to order discovery not otherwise specifically covered by the discovery rules. This discretion has a very limited scope, and we see no abuse of this discretion in failing to order Nickel to be hypnotized. Defendant can cite no precedent of a court ordering a victim to be hypnotized and, considering the doubts still existent concerning the accuracy and very process of hypnotism, we can find no reason why it should have been ordered in the instant case.\nDefendant\u2019s reliance on People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848, and People v. Kester (1979), 78 Ill. App. 3d 902, 397 N.E.2d 888, is misplaced. In Smrekar the issue was whether a victim was competent to testify to an identification that had been facilitated by hypnosis. In Kester the court ruled the testimony of a hypnotist as to what a witness said under hypnosis was admissible. Neither case addresses the issue of whether the trial court can compel a victim to undergo hypnosis.\nDefendant\u2019s fourth issue is whether or not the trial court erred in two rulings regarding evidence of the victim\u2019s identification of the defendant as his assailant. The first ruling dealt with the trial court\u2019s restriction of the defendant\u2019s cross-examination of Nickel. At the second trial Nickel testified to his stabbing and stated that when he opened the door he was stabbed by one man \u2014 whom he identified as the defendant \u2014 and saw another man about seven feet away. He did not testify any further about the second man on direct examination. On cross-examination, defense counsel sought to question Nickel as to whether or not, despite having said he could not identify the second man, he chose a photograph which he identified as the second man. Counsel\u2019s express purpose was to impeach the victim\u2019s ability to identify the defendant from a photograph array. The State\u2019s objection was sustained.\nThe reception of evidence collateral to an issue in a case and intended to affect the credibility of a witness rests usually within the discretion of the trial court. (People v. Bruce (1975), 32 Ill. App. 3d 404, 336 N.E.2d 354.) Absent an abuse of discretion, the trial court\u2019s decision will not be disturbed. Despite defendant\u2019s contention that impeachment of Nickel\u2019s identification of the second man was directly relevant to the case at bar, we believe it was only collateral. Defendant contends that doubt created about one identification made by a photograph casts doubt upon any other identification made by a photograph. Therefore, defendant argues, since Nickel identified the defendant by a photograph, his misidentification of the second man by a photograph is relevant to his identification of the defendant. The problem with the defendant\u2019s argument is that defendant has not shown that Nickel misidentified the second man. If the defendant had proved a misidentification, then the misidenti-fication would be admissible as impeaching evidence. However, such is not the situation in the instant case. In the instant case, all that happened was that some doubt was raised concerning Nickel\u2019s identification of the second man. It was not enough to cast doubt upon Nickel\u2019s ability to identify the defendant as his assailant. Therefore, the doubts concerning Nickel\u2019s identification of the second man were a collateral matter, and the trial judge did not abuse his discretion in refusing to allow cross-examination on the subject.\nThe defendant\u2019s other issue regarding the trial court\u2019s evidentiary rulings concerns Nickel\u2019s identification of the defendant by a photograph. The court allowed Kevin Doyle, a bartender, to testify that the photograph from which Nickel was able to identify the defendant showed what the defendant looked like on the night of the occurrence. The photograph had been taken approximately 18 months earlier. The defendant claims that Doyle should not have been allowed to testify that the photograph looked like the defendant. Therefore, defendant claims he was denied a fair trial. We see no merit in defendant\u2019s claim. There was a proper foundation for Doyle\u2019s testimony. The proper foundation required for the introduction of a photograph into evidence is that the witness must have personal knowledge of the person in question and testify that the photograph accurately portrays him. Doyle testified that he had seen the defendant minutes before the attack and that the photograph portrayed him as he looked at that time. We see nothing objectionable in this testimony.\nDefendant\u2019s final issue is whether or not the prosecutor\u2019s closing argument was so inflammatory and prejudicial that it denied the defendant due process and a fair trial. Defendant alleges numerous statements were impermissible. The first statement we deal with is the prosecutor\u2019s statement that \u201cThere has [sic] been some unexpected delays, and sometimes its been hard to follow. \u00b0 * 0 Because so many of the delays were unexpected, because generally these delays work to the prejudice of the State, the State\u2019s witnesses beginning first, I am going to have to review some of the high points.\u201d Defense counsel objected, the jury was removed and the objection was discussed. The prosecutor explained that what he meant by prejudice and intended to explain to the jury was that since the State\u2019s witnesses testified first, he would have to cover their testimony in greater detail than later witnesses. The jury was brought back in and the judge told the jury that there had been no prejudice due to the delays and that the jury should ignore the statement. While we believe the prosecutor\u2019s remarks were improper, we believe the prompt objection, followed by the trial court\u2019s instruction that the jury disregard the comment, was sufficient to cure the error.\nLater in his argument the prosecutor, in commenting on the defendant\u2019s witnesses, stated \u201cNow what does his father, Mr. Ludtke, have to say about the case. He doesn\u2019t know where his son was on December 9,1977. No alibi testimony from him.\u201d Defendant claims this remark suggested that the burden was on the defendant to prove his innocence and directed the attention of the jury to the defendant\u2019s failure to testify. We find no such improper suggestion. The remark, when taken in context, referred to the main issue at trial, the assailant\u2019s identity. We see nothing that suggests the burden of proof was on the defendant or which draws attention to the defendant\u2019s failure to testify.\nDefendant also claims he was denied a fair trial by the prosecutor\u2019s comments on the State\u2019s burden of proof beyond a reasonable doubt. The prosecutor said, \u201cMr. McNamara [the defense counsel] talks about burden of proof beyond all reasonable doubt. Well it\u2019s not beyond all doubt; it\u2019s beyond a reasonable doubt. You, under the rules of law, should convict even if you have doubts, so long as you are convinced beyond a reasonable doubt.\u201d The defendant claims that the prosecutor was defining reasonable doubt and this was improper and denied the defendant a fair trial. We disagree. The prosecutor was responding to defense counsel\u2019s argument, and we see no attempt to define the term reasonable doubt.\nDefendant makes several other allegations of improper statements by the prosecutor in his closing argument. We find no merit in any of them and do not discuss them separately. In summation, while some of the prosecutor\u2019s statements were improper, we find that the statements, individually and collectively, do not constitute reversible error.\nFor the abovementioned reasons, the judgment of conviction of the circuit court of Will County is affirmed.\nAffirmed.\nALLOY and BARRY, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE STOUDER" } ], "attorneys": [ "Gary L. Blank, of Chicago, for appellant.", "Edward F. Petka, State\u2019s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY RENSLOW, Defendant-Appellant.\nThird District\nNo. 80-219\nOpinion filed July 14, 1981.\nGary L. Blank, of Chicago, for appellant.\nEdward F. Petka, State\u2019s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0288-01", "first_page_order": 312, "last_page_order": 319 }